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Prosecutorial Misconduct Halts Moussaoui Trial

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.

[The prosecutor] indicated that the discussions the attorney had with FAA witnesses concerned whether the government could have stopped Sept. 11, through heightened airport security, if Moussaoui had confessed his knowledge of the plot when he was arrested in August 2001. Prosecutors are arguing that Moussaoui should be executed because he lied to and misled the FBI.

That is the most important issue in the case. If unable to prove that theory to the jury, the death penalty would fail.

The Judge said it was the "most egregious" violation she could remember in all her years as a judge. Plus, it wasn't the first violation. On Thursday,

....prosecutors questioned why Moussaoui had not contacted the FBI to offer information after he was jailed in Minnesota in August 2001. At the time, Moussaoui had stopped speaking with agents and had asked for an attorney, and defense lawyers said the prosecution's question violated Moussaoui's constitutional rights against incriminating itself.

Brinkema warned the government on Thursday that it was "treading on very delicate legal ground."

I think the judge will declare a mistrial. I don't see that she has any choice.
That doesn't mean Moussaoui goes free. His guilty plea still can and likely will result in a life sentence. The question is whether the Government will appeal the dismissal and keep this charade going.

Update: Let's not forget former AG John Ashcroft's role in this.

Update: One non-lawyer commenter questions whether the violation is significant. The answer, in a nutshell, on the importance of the sequestration of witnesses:

The rule is designed to discourage and expose fabrication, inaccuracy, and collusion. Fed. R.Evid. 615 advisory committee's note; see also United States v.Leggett , 326 F.2d 613, 613 (4th Cir.) (noting that witness sequestration "prevent[s] the possibility of one witness shaping his testimony to match that given by other witnesses at the trial"), cert. denied , 377 U.S. 955 (1964).

The merit of such a rule has been recognized since at least biblical times. The Apocrypha , vv. 36-64, relates how Daniel vindicated Susanna of adultery by sequestering the two elders who had accused her and asking each of them under which tree her alleged adulterous act took place. When they gave different answers, they were convicted of falsely testifying. See 6 John H. Wigmore, Wigmore on Evidence § 1837, at 455-56 (James H. Chadbourn ed., 1976).

It is now well recognized that sequestering witnesses "is (next to cross-examination) one of the greatest engines that the skill of man has ever invented for the detection of liars in a court of justice." Id . § 1838, at 463.

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    Re: Prosecutorial Misconduct Halts Moussaoui Trial (none / 0) (#2)
    by Punchy on Mon Mar 13, 2006 at 09:05:17 AM EST
    Ah...to be a judge during this Administration. What fun it must be trying to count the number of violations, illegal, and ethically questionable things this group does. Anyone remember when Knuckledragger Extraordinare Luttig even ripped the Admin for the Padilla affair? Judges must just be aghast at the hubris and disregard these guys have for the Rule of Law. They're really the last stand against the impending Rule of Dictatorship that is closing in fast....

    Empty, yes, it's an Ashcroft f*up. Out of desperation for a 9/11 related conviction. But Gonzales could have stopped it and didn't.

    So is this an Ashcroft era f*ckup, or is Abu Gonzales screwing up the terrorist prosecutions now, too? No wonder these guys want to fight terrorism through war. They can't handle the legal issues involved in prosecuting someone.

    Re: Prosecutorial Misconduct Halts Moussaoui Trial (none / 0) (#4)
    by jimakaPPJ on Mon Mar 13, 2006 at 09:12:35 AM EST
    et al - What, pray tell, is this beyond a dumb mistake by a FAA attorney who probably has very limited experience. But, either way, the government has immediately brought his actions to the court. That is the ethical thing to do. Where's the beef?

    Re: Prosecutorial Misconduct Halts Moussaoui Trial (none / 0) (#5)
    by Punchy on Mon Mar 13, 2006 at 09:25:57 AM EST
    Jim-- Your logic just cracks me up. So, in your view, an apt analogy is when a judge tells the gov't not to kill a man. But they kill a man anyways, even though the judge said SPECIFICALLY not to kill. But because they TOLD the judge they killed him, no harm no foul, right? Nevermind the dead man...

    a dumb mistake by a FAA attorney who probably has very limited experience PPJ, you start turning out rationalizations whenever the current malAdministration has messed up, and your contention, would be interesting if the facts are to be as you allege. If it turns out he's been doing cases involving criminal conduct in the FAA for 20 years, what then? Perhaps he was a political hack who got into a situation over his head. Perhaps he was a former Naval Avation type whose oxygen mask malfunctioned during his last mission. Perhaps he was secretly working for Fox News and things got out of hand. Perhaps he was a living example of an "anti-American, terrorist-hugging leftist." YMMV. I must say, PPJ has brought to our attention the rare time where Bushco has actually acted in an ethical manner, so he is deserving of props for that service :>)

    Well, by bringing it to the judges' attention, the individual attorneys involved have discharged their ethical obligation independent of the underlying f*** up... they don't get brownie points for it; they simply don't dig themselves in deeper. The underlying f***-up warrants not merely a possible mis-trial (which could result in a re-trial of the penalty phase), but, as a sanction, a directed verdict against the death penalty in this case. We'll see what Judge Brinkema does with it. Given how many cans of worms this issue of witness coaching opens up, (i.e. witness tampering), it could potentially open up the whole underlying guilty plea, i.e. Moussaoui gets a new trial, this time with the death penalty off the table from the get-go... And it was all unnecessary, if the Government simply allowed Judge Brinkema to sentence him to life without parole and be done with it! This is a catastrophic f*** up of a prosecution... and all because Junior just loves his death penalty.

    Re: Prosecutorial Misconduct Halts Moussaoui Trial (none / 0) (#8)
    by Che's Lounge on Mon Mar 13, 2006 at 10:01:27 AM EST
    Activist judges. Why does she hate amerika? It's obvious he should die. (sip)

    Re: Prosecutorial Misconduct Halts Moussaoui Trial (none / 0) (#9)
    by scarshapedstar on Mon Mar 13, 2006 at 10:02:00 AM EST
    Shorter Jim: "The buck stops there." Really? How did a (according to Jim) rookie with less of an understanding of the law than I do (well, okay, probably just less ethics) end up on the highest profile terrorism case since Tim McVeigh? Seems like the kind of decision that takes place high up in the Justice Department. Wait, isn't that in the Executive Branch? Say-it-ain't-so... I suppose what I'm getting at is, do you think Al Gore's prosecutors would have screwed it up this badly? They've spent 5 years getting outmanuevered by a madman with no knowledge of the American legal system, and now they get caught coaching the witnesses. That's about as impressive as a degree in evolutionary biology from Jerry Falwell's Liberty University. Heckuva job, as usual.

    Re: Prosecutorial Misconduct Halts Moussaoui Trial (none / 0) (#10)
    by wg on Mon Mar 13, 2006 at 10:07:33 AM EST
    The result of "let's get them, whatever it takes", "village dog chasing madly", "gotcha" school of prosecution that permeates DA offices in this country. Glad to see one judge principled enough not to go with it. Lonely must she be.

    I can only think that they did it willfully, not incompetently. Granted, incompetence is a good fallback position with these "people" but, while there has been discussion of what they did, the question should be why they did it. Did they want the judge to just declare a mistrial now? Did they not want further testimony, or a particular pending testimony, that might open up some unspecified can of worms or raise questions they don'twant to address? Is their case that weak, and their lust for death so strong, that they would risk a mistrial? Isn't there some new teevee show about new lawyers, is that who they have running their one and only 9/11 trial, some inexperienced hack? Given past performances, there's more to this than what we are seeing. They aren't that stupid, blind, psychopaths, religious ideologues maybe, but Powerline stupid? I don't think so.

    Re: Prosecutorial Misconduct Halts Moussaoui Trial (none / 0) (#12)
    by Bill Arnett on Mon Mar 13, 2006 at 11:34:06 AM EST
    This kind of problem is emblematic of the Bush Imperial Kingdom, and is entirely understandable: When you are utterly bereft of morals, common sense, and the ability to either understand or follow the law and, indeed, declare yourself exempt from and above the law, this is just another sign of the utter breakdown of civilized society. After all, the DOJ is run by Fearful Leader, isn't it? America used to be such a nice place to live. I sorely miss living in a free and democratic society. The cowardice, hutzpah, and blustering buffoonery of Bush has made us the laughingstock of the entire world, with, of course, the complicity of the Republican Rubberstamp Party. After all, incompetence on this grand a scale requires much more than just an ineffectual president - it takes a hugh number of idiots an awful lot of time and effort to screw things up this bad. And while some, like PPJ, try to excuse lawbreaking like this by saying they "did the ethical thing" that begs the fact that the "ethic(s)" of the reporting has nothing to with the fact that the judge's orders were violated, and those contemptuous acts should be severely sanctioned. Interesting that the "rule of law" no longer applies to Republicans and their cohorts, and that they now defend a "government of men", the very thing that so repulsed them during the Clinton years. Anyone remember Shrubs promise to run the most ethical administration ever? My. how Republican's memory fail them now. Group amnesia, no doubt.

    In some ways, this is a good outcome for the government. Nothing is actually accomplished by killing Moussaoui, who is visibly a few sandwiches short of a picnic. A death penalty would make him - in some people's eyes - a martyr, condemned to death after a trial that was riddled with irregularities. From Al-Qaeda's viewpoint, seeing a foot soldier who was such a liability that they had to pay him to go away turned into a poster child for American injustice is a real win-win situation. Locking him away for life is a much more useful result. The message is that justice has been done and he deserved death but that he was spared by our scrupulous attention to legal technicalities. The US legal system looks good, Moussaoui doesn't get to be a martyr and ten minutes after the prison door slams behind him we've forgotten all about him. It makes me wonder if the revelation about the government misbehavior - a revelation made by the prosecution, remember - wasn't a strategic leak.

    "I think the judge will declare a mistrial. I don't see that she has any choice." Moussaoui should never be executed if there is prosecutorial misconduct. We overlook such misconduct far too often. Legally, Moussaoui ought to be set free, but some nut would probably kill him.

    Re: Prosecutorial Misconduct Halts Moussaoui Trial (none / 0) (#15)
    by wg on Mon Mar 13, 2006 at 01:07:52 PM EST
    .. wasn't a strategic leak. agree with analysis, makes more sense to sentence him to life, but somehow I have hard time believing that there is anybody in this administration capable of thinking that clearly. And I hope nobody is in position to arrange for it.

    This clown is digging his own grave at every turn and shrubco still has to cheat. They're not content to win by 50 points, they've got to win by 60 even if they have to cheat to do it. They're worse than Nixon. They sandbagged Muskie in NH. He was gonna kill McGovern. It was money in the bank. But that wasn't good enough. He still had to cheat. And the rest is Watergate History. What's with republicans. Why win when they can hire somebody to tear your head off and make your family disappear - metaphorically speaking - in the name of the Lord.

    Re: Prosecutorial Misconduct Halts Moussaoui Trial (none / 0) (#17)
    by jimakaPPJ on Mon Mar 13, 2006 at 03:07:32 PM EST
    scar - It really makes no difference as to his experience. I was speculating based on his FAA status. Could be wrong, could be right. But either way, the government did the proper thing and informed the judge. That was the correct thing to do. It is completely separate from whether or not you agree/disagree with the trial. Punchy - Your analogy is completely wrong. Read my response to scar. (above) K. Ash writes:
    Moussaoui ought to be set free, but some nut would probably kill him.
    Uh, speaking of nut cases. Bill Arnett writes:
    America used to be such a nice place to live. I sorely miss living in a free and democratic society.
    Perhaps you can tell us what freedoms you have lost. You can't? Why am I not surprised. Duckman GR and sardonicus - Really guys. The government did this on purpose? Come on. charlie - What is it about the government lawyer doing something wrong and the government's lawyers turning him in. What, please tell us, does that have to to with Bush? Really charlie, try to "think,"

    Re: Prosecutorial Misconduct Halts Moussaoui Trial (none / 0) (#18)
    by Sailor on Mon Mar 13, 2006 at 03:31:04 PM EST
    1) the lawyer is a her. 2) this is the most important case in the history of the FAA, only an incompetent or idiot would appoint a rookie to that post. It did not happen in this case, she is a senior lawyer, google "Carla J. Martin" 3) The lawyer was familiar with the case and the judges rulings. 4) this is witness tampering, that is about as serious as it gets in the legal world. Oh, and that commenter who will defend king george no matter what says he speculates never, which apparently means 'always.' moussaoui was held illegally, didn't get a speedy trial, doesn't have the right to witnesses for and against him, doesn't have effective counsel (no reflection on TK, but if he can't see the evidence, he can't effectively rep his client).

    Re: Prosecutorial Misconduct Halts Moussaoui Trial (none / 0) (#19)
    by Sailor on Mon Mar 13, 2006 at 03:50:03 PM EST
    Perhaps you can tell us what freedoms you have lost. You can't? Why am I not surprised.
    insulting a fellow commenter and not waiting for a response are SOP for this commenter. Howzabout 'been yanked out of line at an airport recently?'; 'is your phone and email tapped? No? How do you know?'; 'the DOD has admitted to illegally putting peaceful Americans into their threat database'; ad nauseum. Anyone else remember 'Injustice anywhere is a threat to justice everywhere' ?

    That's the question, pal. Does it make more sense that a very experienced lawyer would so blatently defy the judge, would commit such a stupid judicial error? No, it doesn't. Therefore, something else is going on here, and it's perfectly reasonable to think that way. What purposes are furthered by this "mistake?" What doesn't happen from this point on? Bushco is all about secrecy, this is just part and parcel.

    Re: Prosecutorial Misconduct Halts Moussaoui Trial (none / 0) (#21)
    by jimakaPPJ on Mon Mar 13, 2006 at 05:11:54 PM EST
    sailor - Thank you for your information. As to your comment re the competency of the lawyer involved, I'll try not to judge, although I am reminded of Casey's comment about the first year Mets.
    Can't anybody here play this game?
    And I haven't commented that the action was not serious. Why do you imply such things? A little smear action, eh? Insulting someone by asking them to be specific about a statement of loss? Heavens. Who would have thought? Such sensitivity. And prejudging what their response would be? You know better, sailor. You really do. Now let me see. No, I haven't been jerked out of a line at an airport lately. You? And what loss of rights is that? I have been picked for secondary screening while watching people who fit the profile of the 9/11 killers go unimpeded on their way. Guess old white men power is greater than I thought. Do you claim that the imposition of security measures in civil aviation shouldn't be done? I would hope your anger would be directed at the criminals whose activities have caused the increased security measures. Oh well. Is my phone tapped? Is my email tapped? Well, I don't think so. But do I "know?" Of course not. Do you think yours is? And if you do, why? As for the DOD "list," what rights has the person on the list "lost?" But again. Do you argue that the government should not keep a list of people they consider security threats? If so, why? Isn't the government responsible for the safety of the country? And if not, why doesn't the Left quit screaming about Bush not connecting the dots before 9/11? Could the Left just be - GASP! - playing politics? I mean shades of Jamie Gorelick and Chinese Firewalls. And finally, I love this comment:
    moussaoui was held illegally, didn't get a speedy trial, doesn't have the right to witnesses for and against him, doesn't have effective counsel (no reflection on TK, but if he can't see the evidence, he can't effectively rep his client).
    .......sailor.... The guy confessed.

    Re: Prosecutorial Misconduct Halts Moussaoui Trial (none / 0) (#22)
    by jimakaPPJ on Mon Mar 13, 2006 at 05:16:39 PM EST
    Duckman GR - Two comments. First, I am not your pal. Never have been, never will be. Secondly, you are welcome to your paranoia and may all the black helicopters not disturb your sleep. But I do reserve the right to giggle.

    Re: Prosecutorial Misconduct Halts Moussaoui Trial (none / 0) (#23)
    by Repack Rider on Mon Mar 13, 2006 at 05:23:23 PM EST
    Do you argue that the government should not keep a list of people they consider security threats? Not if they are American citizens who have not been accused of a crime and who have not made any direct threat. Otherwise it would be a secret police, KGB, Nixon-political-enemies type of list. This is the United States of America, and we are better than those nations who keep secret lists of troubling citizens. Was this a trick question? Only a wanna-be Nazi or Stalinist would have answered in the affirmative, because such lists are the hallmarks of dictatorships.

    Let me add, jim, that was sarcasm, since clearly you are not my pal. Which is fine, we share nothing in common except the ability to type on a keyboard, and reading Talk Left. That said, you call it paranoia to ask how such an accomplished lawyer could make such a stupid mistake. I find it unacceptable that an experienced lawyer could make an error so willfully. It makes you think that there was a reason for it. It would be like a driver at the Indy 500 making a hard right turn coming out of the chute. The politicians can be that stupid, but not a career lawyer in a high profile case. It's just not credible. Which brings me back to the question you choose to ignore, but which remains holding the floor, What is the benefit to the government to ending the trial at this point? J.M Deutch has proposed a reasonable answer, I second it in general, there may be other explanations, but you aren't offering any. Why not? It's a free country, speculate, dude.

    Re: Prosecutorial Misconduct Halts Moussaoui Trial (none / 0) (#24)
    by Sailor on Tue Mar 14, 2006 at 12:44:48 AM EST
    ppj, you did say it wasn't serious:
    Where's the beef?
    And btw, if you had bothered to read the post you would know that Asscraft was the first to violate the judge's order. ppj also said
    And prejudging what their response would be?
    ppj did exactly that when he SPECULATED that it was a ' a FAA attorney who probably has very limited experience'
    I mean shades of Jamie Gorelick and Chinese Firewalls.
    Well that has been disproven over and over. [remainder deleted]

    I mistakenly believed that if I said that legally, Moussaoui should probably be let go, I thought people would get that the whole case is a mess. No sympathy for terrorists, but since when in the U.S. is "didn't tell the truth, a lot of people died" a capital crime in the first place? I'm new to this forum, but I learned not to assume that I would be understood, especially by our sarcastic friend.

    Re: Prosecutorial Misconduct Halts Moussaoui Trial (none / 0) (#27)
    by jimakaPPJ on Tue Mar 14, 2006 at 05:26:20 AM EST
    Duckman GR - Oh, I understood. I just wanted to make sure you knew that I was in total agreement. As for speculation, well I guess there is a line between speculation and black helicopters. But both are fun, eh? K. Ash - Forgetting the death penalty trial, but given that the man has confessed, why would you think he should be let go for any reason? What would you do with him? Enroll him at Yale? Repack - Yes it is a troublesome question. And one that we're going to have to answer in today's world. What do we do? Close the door and keep'em out or make a list and keep up with'em?

    charlie - What is it about the government lawyer doing something wrong and the government's lawyers turning him in.
    What, please tell us, does that have to to with Bush? Really charlie, try to "think,"
    Who's President, Jim? Who's Justice Department is it? Who picked the Attorney General? Who picked the one before him? Who's clearly established that the first priority of the administration is to make shrubco look good, not to protect the Country? Really, Jim, do try to think.

    Look at Moussaoui's confession: he wants to be a martyr, so he confessed to everything. The Chicago fire? he'd say he did it. Also, his sanity is a real issue and though he refused evaluation, his courtroom antics reveal someone in need of such an evaluation. Moussaoui is just a loser; a martyr-wannabe. What would I do with him? I'd charge him with a real crime, then give him a real trial with a real lawyer. His trial is as much about us as it is about him.

    Re: Prosecutorial Misconduct Halts Moussaoui Trial (none / 0) (#30)
    by wg on Tue Mar 14, 2006 at 10:12:22 AM EST
    the problem is there isn't much of a real crime here to charge him with, that's why we see what we see. We need to get somebody for 9/11, there is nobody else so he will have to do.