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Moussaoui case tests judge's patience

The Zacarias Moussaoui trial has forced U.S. District Judge Leonie Brinkema to deal with many unexpected situations, including possible witness tampering by a government lawyer, and self-representation by the defendant.
/ Source: The Associated Press

Normally reserved, U.S. District Judge Leonie Brinkema shoved her chair back from the bench, visibly angry about what she was being told. A government lawyer who had coached key witnesses had been deeply involved in the case against confessed al-Qaida conspirator Zacarias Moussaoui.

“This attorney has been at the CIPA hearings?” she asked incredulously after learning that Transportation Security Administration lawyer Carla Martin had attended the classified pretrial hearings that dealt with many of the most sensitive issues of Moussaoui’s trial.

It was among the first of many subsequent revelations about Martin’s conduct that tested the patience of a judge in the middle of a case that has given her fits for years.

After more than four years of wrangling that included an appellate court’s reversal of a key pretrial ruling, the case finally went to trial March 6. Since then, it has had more than its share of the unexpected, forcing Brinkema to handle delicate situations on the fly.

No-nonsense style
Among the surprises was Moussaoui’s testimony in his own defense — against the advice of his court-appointed lawyers — that he was to have piloted a fifth plane and attacked the White House on Sept. 11, 2001.

Brinkema then allowed testimony from a previously off-the-record meeting in which Moussaoui had offered to tell the same story as part of the prosecution case. In that interview, an investigator said, Moussaoui said he wanted to help secure his own execution, that he did not want to spend the rest of his life in prison.

Brinkema, a graduate of Rutgers and the Cornell law school, has a reputation for fairness and a direct, no-nonsense style in court.

She has also shown a willingness to second-guess herself, as she did when she revised an earlier ruling in the Moussaoui case and allowed prosecutors to present some key evidence at trial.

Media shy
Ahmed Davis, a law clerk for Brinkema in 1999 and 2000, said she “is one of the most fair and impartial individuals I have come across.” He said he is not surprised by how she handled the recent bombshells in the Moussaoui case.

“She didn’t rush to judgment. She took her time,” Davis said, noting that she held an evidentiary hearing to uncover the problems created by Martin’s actions. “She said, ’This is a serious issue and I need time to reflect on this.”’

Since her appointment by President Clinton in 1993, Brinkema, 61, has tried to avoid the spotlight. She even declined to make a mugshot of herself available to the news organizations.

Brinkema is particularly protective of her juries — she has kept the names of jurors secret in the Moussaoui trial and in other terror cases. She makes more than the usual effort to explain various legal asides to the jury to assuage their curiosity.

On several occasions she has described the panel weighing evidence in the Moussaoui trial as “a good jury” for the case. She made a point of maintaining eye contact with jury members throughout the trial, even arranging seating so that a tall juror wouldn’t block her view of others.

She even inquired, unsuccessfully, about obtaining HOV lane passes for jurors who were worried about getting to court on time.

Her reputation for fairness is such that five defendants in a high-profile terrorism prosecution opted for a bench trial rather than a jury trial. Defense lawyers normally opt for a jury trial on the theory that it’s harder to convince 12 people of a defendant’s guilt than it is to convince a solitary judge.

But the five defendants in what prosecutors called “the Virginia jihad group” — a loose affiliation of young Muslim men who played paintball in the Virginia woods as a means of training for holy war around the globe — figured they would get a fairer shake from Brinkema than a jury.

Brinkema convicted three and acquitted two on all charges.

Twists and turns
Brinkema has lived through the many twists and turns of the Moussaoui case. She endured Moussaoui’s self-representation for nearly a year and a half, during which time he filed a stream of handwritten motions deriding his own lawyers and calling Brinkema a “death judge.”

At one point in 2002, Brinkema essentially talked Moussaoui out of pleading guilty after advising him that such a plea would be admitting culpability in the Sept. 11 attacks. Moussaoui eventually pleaded guilty in April to nearly identical charges. During the April plea hearing, he explicitly denied a role in 9/11, claims he contradicted with his trial testimony early this week.

Moussaoui’s exact role in the 9/11 plot has been the focus of his sentencing trial. Prosecutors must prove that Moussaoui’s acts resulted in at least one death on Sept. 11 to obtain the death penalty.

Criticism for the judge
Brinkema’s handling of the trial has drawn some criticism.

The judge has “has gone out of her way to do strange things to help Moussaoui” over the years leading up to trial, said Ronald Rotunda, a law professor at George Mason University and a fellow at the Cato Institute.

“The judge doesn’t seem to want the death penalty, either generally or in this case,” Rotunda said.

In particular, he cited Brinkema’s decision to punish the government by taking the death-penalty off the table in 2003 for the government’s refusal to allow defense questioning of key al-Qaida witnesses in U.S. custody. An appellate court overturned Brinkema and reinstated the death-penalty option.

Rotunda said if she felt strongly that the defendant’s rights were being violated, she should have dismissed the case entirely and let the issue be settled in appellate courts.

Her desire for compromise resurfaced in the Martin affair. Brinkema initially considered dismissing the government’s death-penalty case, then decided to bar it from presenting any aviation testimony. Then she finally allowed substitute aviation witnesses after the government complained that her ruling had gutted their case.

“Judges aren’t supposed to compromise,” Rotunda said. “They’re supposed to rule.”