Judge Lonnie Brinkema has modified her previous order banning aviation evidence and witnesses in the death penalty trial of Zacarias Moussaoui.

Judge Leonie Brinkema in a written order said prosecutors could present exhibits and a witness or witnesses if they are untainted by contact with Transportation Security Administration lawyer Carla J. Martin, cited by Brinkema for misconduct earlier this week when the judge decided to exclude all aviation security evidence. "The government's proposed alternative remedy of allowing it to call untainted aviation witnesses or otherwise produce evidence not tainted by Ms. Martin has merit," Brinkema wrote.

The order is here (pdf). In it the Judge writes:

A government aviation witness may testify as to what the United States government "could" have done to prevent the attacks, had the defendant disclosed in August 2001 the facts that he admitted in pleading guilty. The witness, or witnesses, may not, however, testify as to what the United States government
"would" have done with this information, as such testimony would be unduly speculative and misleading to the jury.

We're back to square one. This case should be dismissed based upon the cumulative misconduct of the Government.

The AP reports on the connection between Carla Martin and the 9/11 civil litigation, and posits that her motive was not to help win a conviction for the Government in Moussaui, but to aid the government's and airlines' defense in the civil ligitation. TalkLeft was the first to raise this theory -- three days ago.

It appears to me Ms. Martin was trying to coach and influence the witness' testimony not to convict Moussaoui, but to prevent the FAA from being found at fault in the civil litigation over 9/11. American and United are hoping for the same result -- hence her collaboration with their lawyers.

Don't forget to check out this letter attached to the defense objection to Judge Brinkema reconsidering Tuesday's ruling excluding the aviation witnesses and evidence. It was written by the plaintiff's lawyers in the 9/11 civil litigation to the New York Judge presiding in that case, and raises these concerns (Further explanation here.)

For a recap:

The unsolved murder of Emmett Till in 1955 was a huge impetus in the civil rights movement. In 2004, the Justice Department reopened the case "after a documentary filmmaker claimed to have found investigative errors and concluded that some people involved in the crime were still alive." [In 2005, the FBI exhumed Emmett Till's body.] The final report is now in. There will be no federal prosecution.

FBI agent John G. Raucci said in a statement that the five-year statute of limitations on federal civil rights violations had expired. The FBI's report was sent to District Attorney Joyce L. Chiles, who will decide if any state charges can be filed. Chiles did not return a call seeking comment.

by TChris

Minority Report -- the movie about police officers who arrested criminals before they committed their crimes -- seemed like science fiction. Who knew the New York police would take it seriously?

In five internal reports made public yesterday as part of a lawsuit, New York City police commanders candidly discuss how they had successfully used "proactive arrests," covert surveillance and psychological tactics at political demonstrations in 2002, and recommend that those approaches be employed at future gatherings. Among the most effective strategies, one police captain wrote, was the seizure of demonstrators on Fifth Avenue who were described as "obviously potential rioters."

If we can proactively invade countries we deem "potential threats," we might as well proactively arrest individuals who look like "potential criminals."

Other tactics revealed by the memoranda are equally repulsive:

A new poll by the American Research Group finds that 46% of those surveyed favor Sen. Russ Feingold's resolution to censure President Bush for his NSA warrantless electronic surveillance program.

42% favor impeaching Bush. Some conclude that Bush may be losing the Independent voters for good.

42 percent of independents favored censuring Bush, 47 percent of them said they favored impeaching the president.

"Independents are moving beyond Bush, which, in many ways, is the worst thing that can happen to a president," Bennett said. Even with more than half of his second term in the White House still remaining, "he is becoming irrelevant to their lives," the American Research Group pollster added.

Former Attorney General John Ashcroft is now a Washington lobbyist. He's cashing in on his war on terror connections, representing companies that want government contracts. As Danielle Brian, executive director of Project on Government Oversight notes, having spent his career in government service, he has no business experience.

"What is he selling," Ms. Brian asked, "other than connections and knowledge of how to game the system from being attorney general?"

Examples of his clients:

Cheers for U.S. District Court Judge Gregory Presnell in Orlando, FL.

Sentencing Law and Policy reports that in US v. Hamilton, (pdf) No. 6:05-cr-157-Orl-31JGG (M.D. Fla. Mar. 16, 2006), the Judge refused to apply the draconian federal crack cocaine guidelines because they are irrational in comparison to the severity of the offense. Using the Booker case (argued in the Supreme Court by TalkLeft co-blogger TChris) that rendered the guidelines advisory rather than mandatory, Judge Presnell ruled:

Keyblogging is not that new, but the threat it poses to your privacy is growing. Here's a simple example. Could this have happened to you? If so, you should read this entire Washington Post article.

When Graeme Frost received an e-mail notice that an expensive digital camera had been charged to his credit card account, he immediately clicked on the Internet link included in the message that said it would allow him to dispute the charge. As the 29-year-old resident of southwestern England scoured the resulting Web page for the merchant's phone number, the site silently installed a password-stealing program that transmitted all of his personal and financial information.

Still not concerned?

Attorneys for Zacarias Moussaoui filed this objection (pdf) today to the Government's request (discussed here and here) that Judge Brinkema reconsider her ruling to exclude aviation evidence and witnesses from the death penalty trial of Zacarias Moussaoui. They say the Government has inaccurately minimized TSA lawyer Carla Martin's involvement with the case.

It is worth noting that Ms. Martin, at least, has worked with the prosecution team itself, as well as with the aviation witnesses in reference to this particular case. That is more evidence of direct involvement with the misconduct at issue here than the Government will adduce about Mr. Moussaoui's involvement with the hijackers, yet it considers that connection sufficient to actually execute him.

The U.S. today launched a big offensive against insurgents in Iraq -- the largest since the 2003 invasion. Knights Ridder reported the other day that airstrikes risk civilian casualties. [hat tip Daily Kos.]

The Senate today passed a spending bill that increases the national debt to $9 trillion, in large part to fund the war.

It passed hours before the House was expected to approve another $91 billion to fund the war in Iraq and provide more aid to hurricane victims.

I've got court in Denver early, followed by the dentist in Boulder and then the jail, in Englewood, yet another county. If readers would take over in this open thread, it would be a big help for me. Many thanks.

I don't know what TChris or LNILR's schedule is, but James the Menace Sensenbrenner and Tom Feeney are pushing a change in federal sentencing laws to establish mandatory minimums for all offenses, in a misguided attempt to get around Booker, and this deserves some coverage. If you don't find it here, check Sentencing Law and Policy for updates. The hearing is today and the witness list is here (pdf).

Update: The Oversight Hearing on post-Booker developments to be conducted Thursday morning by the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security will be webcast live starting at 10:30am .

Adam Liptak reports in Thursday's New York Times that Lewis "Scooter" Libby's defense team served subpoenas on the New York Times and its former reporter Judith Miller for records of Judith Miller and Nicholas Kristof pertaining to Valerie Plame.

The new subpoenas seek her notes and other materials, including any other documents concerning Ms. Wilson prepared by Ms. Miller and Nicholas D. Kristof, an Op-Ed columnist for The Times; drafts of a personal account by Ms. Miller published in The Times in October concerning her grand jury testimony; documents concerning her interactions with an editor of The Times; and documents concerning a recent Vanity Fair article on the investigation.

Miller's attorney, Bob Bennett, says the supboena is too broad and she will fight it.

Representatives of Tim Russert and Matthew Cooper confirm they also have been subpoenaed. [Via Editor and Publisher.]