Judge may dismiss death-penalty case against Zacarias Moussaoui

ALEXANDRIA, Va. -- The federal judge in the Zacarias Moussaoui case is considering ending the death-penalty prosecution of the al-Qaida conspirator after learning that a federal lawyer apparently coached witnesses on upcoming testimony.

U.S. District Judge Leonie Brinkema said Monday it was "very difficult for this case to go forward" after prosecutors revealed that a lawyer for the Transportation Security Administration had violated her order barring witnesses from any exposure to trial testimony.

Brinkema sent the jury home until Wednesday while she considers her options.

If she bars the government from pursuing the death penalty, the trial would be over and Moussaoui would automatically be sentenced to life in prison without possibility of release. The government likely would appeal that ruling.

A hearing is scheduled today to determine the scope of the problem. The TSA lawyer, Carla Martin, and most of the seven witnesses -- past or present employees of the Federal Aviation Administration who received e-mails from Martin -- are expected to testify.

The judge said she had "never seen such an egregious violation of a rule on witnesses," and prosecutor David Novak agreed that Martin's actions were "horrendously wrong."

Defense lawyer Edward MacMahon asked Brinkema to dismiss the government's death-penalty case, saying, "This is not going to be a fair trial."

At the very least, he said the government's FAA witnesses should be excluded. But prosecutor Novak protested they represented "half the government's case."

"There is no way to un-ring the bell," the defense said in a court filing Monday night. "The FAA witnesses have been tainted and no matter how much they contend that they can be truthful, they have been coached concerning the defects in the government's case and how to overcome those defects."

In a filing of its own, the government said there is no need to exclude the FAA witnesses from testifying, saying the violation of the court's order, "while egregious," can be remedied when the witnesses are questioned in front of the jury.

Martin's e-mails to the upcoming witnesses included excerpts of the government's opening statement and Martin's assessment that the opening statement "has created a credibility gap that the defense can drive a truck through." She expressed concern that FAA witnesses would be made to look foolish on cross-examination and warned them to be prepared for certain topics.

Brinkema said the violation was compounded by the fact that Martin e-mailed the witnesses jointly, violating standard practice against joint interviews of witnesses.

"What that leads to is the very real potential that witnesses are rehearsed, coached or otherwise that the truth-seeking concept of a proceeding is significantly eroded," Brinkema said.

Efforts to reach Martin for comment by telephone were unsuccessful.

Brinkema said she also would reconsider the defense's request of last week for a mistrial -- made after a question from Novak suggested to the jury that Moussaoui might have had an obligation to confess his terrorist connections to the FBI even after he had invoked his right to an attorney.

She noted that when Novak asked the question Thursday, she ruled it out of order after the defense said the question should result in a mistrial.

The judge warned the government at that point that it was treading on shaky legal ground because she knew of no case where a failure to act resulted in a death penalty as a matter of law.

"This is the second significant error by the government affecting the constitutional rights of this defendant and, more importantly, the integrity of the criminal justice system in this country," Brinkema said Monday.

Of the seven witnesses whose testimony was potentially tainted, three were expected to be government witnesses and four were expected to be defense witnesses. Novak suggested that, in lieu of dismissal, perhaps two of the government's witnesses should be excluded from trial and the defense could present its FAA witness evidence through a stipulation rather than by testimony, meaning the defense witnesses would not be subject to cross-examination.

Moussaoui pleaded guilty in April to conspiring with al-Qaida to hijack aircraft and commit other crimes, and the current trial will determine his punishment: life in prison, or death.

He is the only person charged in this country with the Sept. 11, 2001 attacks, but he has specifically denied any link to 9/11 and says he was training to be part of a possible future attack. Prosecutors, to obtain the death penalty, must prove that Moussaoui's actions resulted in at least one death on Sept. 11.

Brinkema barred prosecutors from seeking the death penalty against Moussaoui once before, in 2003, after the government refused to let the defense question key al-Qaida leaders in U.S. custody. But an appellate court overruled her in 2004 and reinstated the death penalty as an option.

Moussaoui appeared amused as the lawyers debated how to proceed. Leaving the courtroom, he said, "The show must go on."

Attorney General Alberto Gonzales declined comment on the developments.

Thomas G. Connolly, a former federal prosecutor in northern Virginia, called the TSA lawyer's actions "a monumental blunder" that puts Brinkema in "an impossible position."

"Either she goes forward with a record that is subject to a strong challenge on appeal and faces the possibility of having to do this all over again or she finds the case is now so tainted that she declares a mistrial and has to do it all over. And her third option is equally bad: dismissing the death penalty and not permitting the victims' families to see the process play out in court."

Aitan Goelman, a former federal prosecutor who worked on the Timothy McVeigh and Terry Nichols trials for the 1995 bombing of the federal building in Oklahoma City, said he did not believe the mistake warranted dismissal.

"There's a whole range of remedies," he said. "Exclusion of witnesses seems to be the punishment that fits the crime."

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Associated Press Writer Michael J. Sniffen contributed to this report.