Moussaoui may avoid death penalty

Conduct by U.S. irks federal judge


ALEXANDRIA, Va. -- The prosecution's carefully laid plan to secure the death penalty against confessed terrorist Zacarias Moussaoui appeared to be unraveling yesterday as an incensed federal judge halted his sentencing trial and ordered a hearing to investigate widespread witness tampering by government officials.

U.S. District Judge Leonie M. Brinkema took under advisement 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 events of Sept. 11, its prosecution appeared to be near collapse.

"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 them by telling the FBI about the plot.

Yesterday's developments marked another major embarrassment in the Justice Department's attempts to prosecute terrorists.

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 now in jeopardy because of the Bush administration's controversial program of warrantless wiretaps. Prosecutions in Boise, Idaho; Portland, Ore., and elsewhere also have foundered.

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 had Moussaoui cooperated with the FBI upon his arrest in August 2001, critical information could have been relayed to the FAA to help stop the terrorism hijackings and attacks on Sept. 11.

Though some 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 yesterday 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 FBI Special Agent Michael Anticev, the government's lead-off witness, when the sentencing trial got under way March 6.

"We really are left speechless, frankly," prosecutor David J. 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."

His boss, U.S. Attorney Paul J. McNulty in Alexandria, wrote the judge, "We view Ms. Martin's conduct as reprehensible and we frankly cannot fathom why she engaged in such conduct."

Without elaboration, prosecutors said Martin no longer works for the TSA.

Defense lawyer Edward B. MacMahon Jr. 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, complaining 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 to be aimed at protecting the interests of the FAA.

"We need to be careful in describing how these measures would have impacted the attack and be prepared," she advised the witnesses, noting that security measures such as gate screening procedures are not infallible.

"You need to read this transcript of the prosecutor's opening statements," she e-mailed on March 7, the day after the trial began. "It is all about the FAA, and how it would have caught the hijackers and prevented 9/11.

"I believe there are more than a few errors here."

Then she gave the witnesses pointed instructions: "You need to assert that we did not necessarily need to wait until we got all available information, that we acted independently; indeed, we had a statutory mandate to follow up on any issue that we thought was a threat to civil aviation."

Martin could not be reached for comment.

Officials at the TSA declined to talk about her e-mails and the problems they have posed for the trial.

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