Moussaoui gets a break

Judge bars most evidence supporting argument for death penalty

March 15, 2006|By RICHARD A. SERRANO | RICHARD A. SERRANO,LOS ANGELES TIMES

ALEXANDRIA, Va. -- A federal judge all but gutted the government's death-penalty case against terrorist Zacarias Moussaoui yesterday by ruling that prosecutors cannot present any witnesses or evidence from aviation officials to show that the Sept. 11 attacks could have been stopped had Moussaoui cooperated with the FBI.

U.S. District Judge Leonie M. Brinkema stopped short of granting a defense request that execution be dropped as a possible punishment for the Frenchman. But she warned that allegations of government witness tampering have shaken her confidence that Moussaoui can receive a fair trial.

"I don't think in the annals of criminal law that there has ever been a case with this many significant problems," she said.

Prosecutors formally objected to her ruling, and she recessed the trial until Monday to give the government time to consider an emergency appeal before the 4th U.S. Circuit Court of Appeals in Richmond, Va. That court is considered conservative and generally supportive of law enforcement in criminal cases.

Moussaoui pleaded guilty last year to capital murder for having a role in the Sept. 11 plot. The trial that began last week is to determine whether he should be sentenced to die or spend the rest of his life in prison.

Prosecutors argue that by failing to tell FBI agents about the Sept. 11 plot when he was arrested in mid-August 2001 in Minnesota, Moussaoui deprived the government of the chance to boost aviation security and to try to track down would-be hijackers to foil the terrorist attack.

With due warning, prosecutors say, airport security screeners would have restricted passengers from bringing small knives and box-cutters aboard planes. Box-cutters were the main weapons used against passengers and crews aboard the four hijacked aircraft.

Without such testimony or evidence from aviation officials, the government would be hard-pressed to show the relevance of Moussaoui's arrest to the overall Sept. 11 plot. The FAA witnesses constituted about half the government's case, prosecutors said.

The official at the center of the furor is Carla J. Martin, who, until this weekend, was a senior Transportation Security Administration attorney.

At a hearing before the judge yesterday, a half-dozen prospective FAA witnesses described how Martin repeatedly violated the judge's written order against shaping witness testimony or allowing them to see transcripts of earlier trial sessions. They said she sent them copies of the prosecution's opening statements in the trial and pointed out errors she thought made the FAA look less than diligent in the days before the Sept. 11 attacks.

She advised some of the witnesses how to testify and what to say, told one that he should not agree to be a witness for the defense despite his subpoena to do so, and apprised others that she had a copy of the government's exhibit book and did not think the case was going well for the United States.

Martin herself was called as the first witness yesterday. She took the witness stand briefly while the judge warned her that she faced civil and criminal punishment for her actions. Martin said she "very much wanted" to testify but had not arranged for a lawyer. Her appearance was postponed until later this week.

But the witnesses collectively described a woman who was overzealous in her work, took up large amounts of their time, and often seemed preoccupied with how the FAA would look in the public's eye after the FAA witnesses testified.

They also said Martin never told them about the judge's order Feb. 22 that witnesses were forbidden from reviewing trial transcripts or watching news media accounts of the trial. The witnesses said that this past weekend, after prosecutors learned what she had done, Martin anxiously called them at home and urged them to ignore the transcripts as well as any media reports about the case.

But the witnesses also said that they did not believe Martin's actions would have had any real impact on how they ultimately would have testified before the jury in the trial.

Lynne Osmus, the FAA's assistant administrator for security and hazardous material, said Martin last week e-mailed her a transcript of the prosecution's opening statement in the trial, and that Martin told her the statements "weren't as accurate as she would have wanted them." Osmus said Martin also told her she was concerned that Moussaoui's defense attorneys "could exploit some of those comments" by prosecutors.

Under cross-examination, Osmus said she believed Martin was working with prosecutors "to help put the case together" and "I assumed because she was an attorney in this case she knew what the rules were."

But Osmus said she also agreed with some of Martin's objections to the prosecution's opening statement. For instance, she said that in the days before the Sept. 11 attacks the FAA was not 100 percent capable of discovering short knives or box-cutters that passengers might attempt to bring in carry-on bags aboard airplanes, as happened Sept. 11.

Osmus' assistant at the FAA, Claudio Manno, testified that Martin "sometimes had a tendency to go off on tangents that were taking up a lot of time."

Manno insisted he was not swayed by Martin's actions: "I can only testify to the facts as I know them, and that is it."

But he acknowledged that he had been reading and viewing media accounts of the trial all last week, saying "I had no idea we couldn't do that."

Richard A. Serrano writes for the Los Angeles Times.

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