Alexandria, Va. – The prosecution’s carefully laid plan to secure the death penalty against confessed terrorist Zacarias Moussaoui neared collapse Monday when an angry federal judge halted the sentencing trial in order to investigate widespread witness tampering by the government.
U.S. District Judge Leonie Brinkema will consider a defense request to drop the death penalty from the case, which would leave life in prison as the only possible sentence.
After four days of testimony in the government’s showcase trial growing out of the terrorist attacks of Sept. 11, 2001, its prosecution appeared to be unraveling.
“In all the years I have been on the bench,” Brinkema told a hushed and crowded courtroom, “I have never seen such an egregious violation.”
A judge for 12 years, she called a government lawyer’s attempt to shape the testimony of seven key witnesses a “significant error … affecting the constitutional rights of this defendant and, more importantly, the integrity of the criminal justice system in this country.”
Moussaoui unexpectedly pleaded guilty last year to capital murder for having a role in the Sept. 11 conspiracy, and the government has made it a top priority to win the death penalty under the theory that although he was in jail at the time of the attacks, he could have prevented the attacks by telling the FBI about the plot.
At issue in the witness-tampering charges is the pending testimony of seven Federal Aviation Administration officials who were prepped by an attorney for the Transportation Safety Administration.
The witnesses are crucial in the government’s effort to prove that if Moussaoui had cooperated with the FBI upon his arrest in August 2001, critical information could have been relayed to the FAA to help stop the terrorist hijackings and attacks on Sept. 11.
Although preparation of witnesses is common, Brinkema issued a special order Feb. 22 warning that witnesses must not be coached and should not be read or provided transcripts of opening statements or testimony of other witnesses in the case.
But the government notified the court Monday that Carla Martin, a senior TSA attorney, did just that by sending copies of court transcripts around to the witnesses as well as summaries of the testimony of an FBI special agent, the government’s leadoff witness, when the sentencing trial got underway March 6.
“We really are left speechless, frankly,” prosecutor David Novak told the judge, conceding that Martin’s actions were “wholly improper” and could seriously hamper the government’s case. “…We’re really not in a position to defend her conduct.”
Prosecutors said Martin no longer works for the TSA.
Defense lawyer Edward MacMahon immediately asked that the death penalty be stricken as a possible punishment for the 37-year-old Moussaoui – leaving life in prison with no parole as the only other option.
“This is not going to be a fair trial anymore,” he said, arguing that the government was trying to “shape” witness testimony.
In Martin’s e-mails to witnesses, she repeatedly voiced concerns about whether prosecutors were overselling to the jury the FAA’s ability to stop the hijackers at the airports and prevent them from boarding the four planes – even if Moussaoui had tipped off the government that the attacks were coming. Her e-mails appeared aimed at protecting the interests of the FAA.
Earlier terrorism convictions in Detroit were set aside because of prosecutorial misconduct. And a series of guilty pleas in terrorism cases in Buffalo, N.Y., are in jeopardy because of the Bush administration’s controversial program of warrantless wiretaps. Prosecutions in Boise, Idaho, Portland, Ore., and elsewhere also have foundered.
