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:

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.

Update: 3/16: Carla Martin has been placed on Adminstrative Leave by the TSA.

Update: The Washington Post examines whether the Government can salvage its case against Moussaoui and on its latest attempt to minimize the role of Carla J. Martin. Prosecutors also are also stepping up their attacks on her, as can be seen from today's Motion for Reconsideration:

"In this sea of Government attorneys and agents who have assiduously played by the rules, Ms. Martin stands as the lone miscreant," prosecutors wrote yesterday in court papers. "Her aberrant and apparently criminal behavior should not be the basis for undoing the good work of so many."

Update: Late this afternoon the Government filed a motion (pdf) asking Judge Lonnie Brinkema to reconsider her ruling excluding aviation witnesses and evidence in the Zacarias Moussaoui trial.

They acknowledged that altering the judge's ruling is their only hope of salvaging the death-penalty case.....Brinkema's sanctions make it "impossible for us to present our theory of the case to the jury," the prosecutors said, adding that the barred testimony "is one of the two essential and interconnected components of our case."

Bump and Update: The hearing is over. Judge Brinkema has ruled that none of the FAA witnesses who were e-mailed by Carla Martin can testify, but the Government can proceed with seeking the death penalty against Zacarias Moussaoui.

After a hearing in which the aviation officials appeared in the absence of the jury, U.S. District Judge Leonie M. Brinkema said Federal Aviation Administration and Transportation Security Administration witnesses who had been coached would not be allowed to testify before the jury and that she would bar evidence from them.

The judge "split the baby" as they say. Since these were the witnesses the Government was counting on to establish that but for Moussaoui's lies, the attacks could have been prevented, their case for death is on very shaky ground. But they have until Monday to regroup.

More malfeasance by the Government was revealed at the hearing. Some was by Martin, but it appears prosecutors may be tainted by this as well:

TalkLeft readers know I think the death penalty case against Moussaoui is bunk, but I have been transfixed all day by why Transportation Safety Administration (and former Federal Aviation Administration) lawyer Carla Martin would send witnesses transcripts and try to coach their testimony. It was all the more puzzling to me that she sent them to both government and defense witnesses. Why coach the defense witnesses? I wrote earlier, it's shocking and makes no sense.

Like many others, I just assumed she was doing it to help the Government get a conviction against Moussaoui. Now I think otherwise. I have to swallow real hard to say this, but the prosecutors may not be at fault. Carla Martin may have had another agenda.

Bump and Update: Check out the description of the e-mails contained on pages 12 to 14 of the Motion to Dismiss (pdf) filed by the defense today. It is absolutely shocking.

Update: CBS provides the actual emails (pdf) which were released by the Judge today.

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The New York Times identifies the Government lawyer in the Zacarias Moussaoui trial who violated the Court's sequestration order as Carla J. Martin, Senior Trial Attorney for the Transportation Security Administration. A hearing will be held tomorrow on the improper sharing of information with seven trial witnesses, as disclosed by prosectors in the trial earlier today.

Who is Carla J. Martin? She has appeared in Moussaoui pleadings before, such as this one (pdf), ironically seeking to prevent document disclosure to the defense. During the Pan Am flight 103 trial, she sought to close the courtroom during testimony of security procedures. (The Post-Standard (Syracuse, NY), 4/28/92, available on Lexis.com.) She sure doesn't seem like a stranger to the issues at hand.

In a shocking development, prosecutors in the trial of accused terrorist Zacarias Moussaoui told the court this morning that a Government attorney had violated the Court's ban on speaking with witnesses. The Judge has recessed the trial and may dismiss the death penalty case against Moussaoui as a result.

Prosecutors said a Federal Aviation Administration attorney had discussed the testimony of FAA witnesses with them before they took the stand and also arranged for them to read a transcript of the government's opening statement in the case. Both actions were banned by the judge in a pre-trial order.

I have never understood how the Government could get the death penalty for Moussaoui on the theory that he was responsible for the 9/11 deaths not through his participation in the plot but through his failure to tell authorities what he knew so it could be stopped.

It seems the Judge today had the same concern.

"I must warn the government it is treading on delicate legal ground here," U.S. District Judge Leonie Brinkema said at the conclusion of the day's testimony, after the jury had left the courtroom. "I don't know of any case where a failure to act is sufficient for the death penalty as a matter of law."

Update: The jury is seated and testimony will begin this afternoon.

Update: The prosecution gave it's opening today. Moussaoui was calm.

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Testimony begins today in the death penalty trial of accused 9/11 co-conspirator Zacarias Moussaoui.

Zacarias Moussaoui may be the defendant, but it's the FBI that will likely be on trial once testimony begins Monday in the confessed al-Qaida conspirator's death penalty trial.

Both prosecutors and defense lawyers have indicated that FBI agents will provide key testimony at Moussaoui's sentencing trial, which will determine whether the 37-year-old Frenchman is sentenced to life in prison or death.

Zacarias is his own worst enemy. He won't talk to his lawyers. He didn't participate in 9/11. He was in jail when it happened. The current theory is that he was going to used in a future attack. The rationale for executing him is that he knew of al-Qaeda plans to attack the U.S. and did nothing to stop it. Michael Fortier got 11 years, not death, for a similar failure to alert authorities to the Oklahoma City Bombing. Moussaoui has been denied the potentially exculpatory testimony of Ramzi Binalshibh and Khalid Sheikh Mohammed at his trial. Both are being held by the U.S. in overseas prisons.

Update: The New York Times has more here, with comments by Ms. Stewart.

TalkLeft's best wishes go out to criminal defense lawyer Lynne Stewart today. Ms. Stewart, 66, is scheduled to be sentenced next week following her conviction for providing material support to terrorists. In a letter to the Judge today, her lawyers advised she is battling breast cancer. She was diagnosed in November, and is undergoing radiation.

All of TalkLeft's coverage of Lynne Stewart's case is accessible here.

My views of the verdict are summarized here.

Bump and Update: Here's the case in a nutshell:

[Judge] Brinkema told the prospective jurors the case hinges on whether Moussaoui lied when interrogated before Sept. 11, 2001, and whether people died that day as a direct result. Advocating execution, prosecutors contend Moussaoui could have prevented the attacks by telling authorities about al-Qaida's designs. Defense attorneys say the government knew more about the plot than Moussaoui before 9/11 and still couldn't stop the attacks.

Moussaoui was arrested on immigration charges Aug. 17, 2001, after arousing suspicion as he trained at a Minnesota flight school to fly 747 jetliners. He was still in custody when 19 hijackers flew two 757 and two 767 jetliners into the World Trade Center, the Pentagon and a field in Pennsylvania, killing nearly 3,000 Americans in the nation's deadliest terrorist attack.

Moussaoui was ejected from the courtroom a total of four times today.

Update: Moussaoui lasted two minutes at his trial before being removed from the courtroom.