What Was Carla Martin's Agenda in Moussaoui?

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.

Martin may not have been concerned with getting a conviction against Moussaoui -- but the civil litigation over 9/11 involving the FAA and United and American Airlines. It appears to me her "partners", for lack of a better word, were not the prosecutors, but the civil lawyers representing United and American Airlines in the civil litigation, and she was trying to prevent the Moussaoui witnesses from saying something that could result in a judgment against the Government and the airlines in the civil litigation.

It's just a theory, but here's how it goes.

CBS has published the actual e-mails (pdf) sent by and to lawyer Carla J. Martin. They include cover letters from prosecutors to the Court and defense counsel.

It appears that Ms. Martin did not get the Moussaoui opening arguments transcripts of March 6 from the prosecutors or the court reporter, but from civil aviation lawyer Jeffrey Ellis, who got them from Christopher J. Christensen of the law firm Condon & Forsyth.

The prosecutors' cover letter to Court regarding the e-mails states Martin was representing some of the Moussaoui witnesses who are or were FAA employees. It also states that in the e-mails, she was giving her opinons about on-going litigation "prepared as part of her preparation for the litigation."

I take that to mean she is representing those who were employees of the FAA on 9/11. It was the responsibility of the FAA to provide airline security on 9/11. Among the issues in the civil litigation is whether the FAA, American Airlines or United Airlines were responsible for the security breaches that allowed the hijackers to crash the planes into the World Trade Center and the Pentagon.

Mr. Christensen represents American Airlines in the civil ligitation over Flight 77 that crashed into the Pentagon on September 11. A legal assistant for the law firm, Maia L. Selinger, emailed the transcripts to Christensen at 10:24 am on March 7, 2006. At 10:27 am, Christensen forwarded the transcripts to Jeffrey Ellis, who represents United Airlines in the 9/11 civil litigation. Ellis, it appears, sent the transcripts to Carla Martin at 12:26 pm.

At 3:06 pm on March 7, Carla Martin sent the transcripts to Lynne Osmus and Claudio Mannio. They are two of the three witnesses the Government was going to call against Moussaoui about aircraft security measures in effect on 9/11. In this now declassified Legislative Staff Report (pdf) on 9/11 from the Government archives, both Osmus and Mannio are cited several times in the footnotes, and Christensen is cited twice. Moussaoui is discussed in the context of the "Phoenix EC Memo" on page 64. Martin references this memo in her emails to the witnesses.

She also sent the email to Matthew Korman, a defense witness in Moussaoui's case, who is extensively cited in the legislative report, particularly about the Phoenix memo.(see footnote 492 for example.)

So, 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 to be at fault in the civil litigation over 9/11. American and United are hoping for the same result -- hence her collaboration with their lawyers. Although I have no reason to suspect they knew she was sending the transcripts on to the trial witnesses in Moussaoui, she mentions in the e-mails that she discussed the opening statements with them (pdf.) She apparently perceived that the prosecutors in their opening statement and the first FBI agent to testify in Moussaoui's trial were jeopardizing the FAA's position in the civil litigation and she jumped in to coach the witnesses -- not so much to help the prosecutors but so she wouldn't lose her end of the civil litigation.

What she did was reprehensible. Moussaoui should not be the one to pay the price, the Government should be held responsible. If the Judge doesn't dismiss the death penalty altogether, she should at least rule that the Government's FAA witnesses cannot be allowed to testify at his trial. But, as I said at the beginning, the prosecutors may not be at fault in this one.

Update (3/16): Check out this letter attached to the defense objection to Judge Brinkema reconsidering Tuesday's ruling excluding the aviation witnesses and evidence. It is from the plaintiff's lawyers in the 9/11 civil litigation to the Judge presiding in that case, and raises very similar concerns.

Update: The AP finally reports on the connection. Two days after TalkLeft.

< Moussaoui: Government Lawyer Identified | Tuesday Open Thread >
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    Re: What Was Carla Martin's Agenda in Moussaoui? (none / 0) (#1)
    by Talkleft Visitor on Tue Mar 14, 2006 at 12:10:27 AM EST
    Disbarment for three! Since little else seems to make sense and the error is something that a second year law student would avoid, you've brought up a heck of an argument.

    Re: What Was Carla Martin's Agenda in Moussaoui? (none / 0) (#2)
    by Talkleft Visitor on Tue Mar 14, 2006 at 05:57:49 AM EST
    Um, er, I buy your argument more than mine, since what she did makes no sense lawyerly like. Or I could argue that covering bush's behind is the same as keeping a corporation from, a. taking any responsibility for anything, and, b. paying any money for anything if they can prevent it or get someone else (like taxpaying citizens) to pay for it.

    Re: What Was Carla Martin's Agenda in Moussaoui? (none / 0) (#3)
    by Talkleft Visitor on Tue Mar 14, 2006 at 06:27:34 AM EST
    This post well represents why I read the best blogs: a perspective that causes me to think, a well-reasoned argument and well-documented analysis, an openness to being challenged or even to being flat wrong in the service of advancing understanding. It's like thinking out loud with an honest, trusted friend, but in public. Or it's like the best of the scientific method applied to politics and policy. I had given no thought at all to the "why" addressed here and don't have the knowledge to add to what I've read here. I'd just assumed it was another in a long string of screwups. But the openness, honesty, and care represented by this post leaves me comfortable that I can return here and find even more depth as our understanding of this and other issues advance. Thanks very much!

    Re: What Was Carla Martin's Agenda in Moussaoui? (none / 0) (#4)
    by Talkleft Visitor on Tue Mar 14, 2006 at 06:49:19 AM EST
    They did this story on CNN, quickly, mentioned the "screw-ups" etc, but never asked WHY. Why would they screw this up so badly, what was Martin thinking, how could this happen, and so on, as if all that matters is that it did happen. You know, when India nukes Karachi or vice versa, I can hear the idiots at CNN now, "India dropped the bomb on Pakistan today, millions died, there's a war, and we'll have lots of gruesome pictures to show you. And in other news..."

    Re: What Was Carla Martin's Agenda in Moussaoui? (none / 0) (#5)
    by Talkleft Visitor on Tue Mar 14, 2006 at 08:17:48 AM EST
    Great post, and I agree that this is the most probable answer to the question of why Ms. Martin wanted to coach the witnesses. Another question, less important perhaps, is this : Why was she so stupid to do so by e-mail, which could be so easily discovered and tracked? I can think of a couple of reasons. The first is that maybe she thought there was nothing wrong with sharing testimony and opening statements with witnesses. I don't know Ms. Martins background, but there are many Bush appointments who are totally incompetent (see Brownie). Also, the vast majority of lawyers often have never done a trial, and its amazing how clueless many experienced lawyers are about trial rules and procedures (ethical or otherwise). Maybe she has just had no exposure to trial practice and thought this was o.k. The second possibility is more troubling. Perhaps, like all people who break laws/rules, she thought she wouldn't get caught. One trend in prosecutions I have noted since 9/11 in all levels and offices of government is a total disregard for the rules regarding disclosure and conduct of government attorneys. For many of them, what 9/11 changed was their duty to follow the rules and do their jobs ethically. Maybe Ms. Martin knew she was breaking the rules, but thought someone would cover for her and not disclose it to the judge. Or maybe she thought the rules were wrong and decided she was not required to follow them because this concerned national security (see Bush-FISA). While you can't dismiss the possibility that she has no idea of how trials work and that this was just sheer stupidity, I would bet its' the second reason. Ms. Martin, like many government lawyers today, felt the rules did not apply to her. This would not be the first time someone in the Bush Administration has demonstrated this mindset. She thought she could do it because that is the culture the White House has established - from the top down. If you don't like the law/rules, just disregard them and rely on the lack of oversight that one-party rule provides in Washington today to cover your ass. And if your argument regarding her motive is correct, once again for the Bushies corporate money concerns trump national security concerns. At least the US Attys. didn't adopt this mindset and look the other way. While I think their case is ridiculous, at least they did their ethical duty here and should get credit for that. Ms. Martin should be suspended or disbarred.

    Re: What Was Carla Martin's Agenda in Moussaoui? (none / 0) (#6)
    by nolo on Tue Mar 14, 2006 at 08:18:34 AM EST
    The civil litigation angle makes all the sense in the world -- but it's still really reprehensible on so many levels. Leaving aside all the legal ethics issues posed by Carla Martin's actions (and they are many), what kind of moral compass leads a person to think that the government's interest in avoiding financial liability justifies manipulating testimony in a death penalty case?

    Re: What Was Carla Martin's Agenda in Moussaoui? (none / 0) (#7)
    by nolo on Tue Mar 14, 2006 at 08:20:20 AM EST
    pete h, you'd be amazed what people will do and say via e-mail.

    Re: What Was Carla Martin's Agenda in Moussaoui? (none / 0) (#9)
    by Talkleft Visitor on Tue Mar 14, 2006 at 08:52:11 AM EST
    nolo and charliedontsurf, Point well taken, but all of these moronic e-mailers do it because thay think they won't get caught. Why? Ignorance or arrogance, or both? Abramoff was arrogant. What about Martin?

    Re: What Was Carla Martin's Agenda in Moussaoui? (none / 0) (#10)
    by Punchy on Tue Mar 14, 2006 at 08:53:21 AM EST
    Wait--did she coach them to: 1) not say things that would hurt the civil litigation, OR, something much more nefarious and demonstrating serious malfeasance: 2) Purposely poison their testimony such that they simply could NOT testify, thus preventing their words from ever being on record? If this was an intentional act of trial sabotage to save those FAA/Airline clients, this is more brazen than even I can imagine the Bush Admin. being. This is incredible.

    Oh, Hubris, primarily, pete, no doubt about it. They're not morons in the Doug Feith/shrub/coulter sense, they're just thinkin' with the wrong head as it were. It's both, but at least 80 percent Hubris. Still, they're hardly mutually exclusive. As for this latest caper, I don't doubt intentional sabotage on her part for a minute. People have come to expect the stupid, incompetent and corrupt from shrubco. Ho hum. The mayberry machiavellis know this. They use it to their advantage. They have a certain animal cunning. There's no disputing that. The nazis had some first rate generals. Lucky for us, Hitler didn't listen to them all the time.

    Re: What Was Carla Martin's Agenda in Moussaoui? (none / 0) (#8)
    by Talkleft Visitor on Tue Mar 14, 2006 at 10:15:31 AM EST
    Posted by nolo March 14, 2006 09:20 AM
    pete h, you'd be amazed what people will do and say via e-mail.
    Take jack abramoff, for example. [remainder off topic, this is about Moussaoui]

    Sound theory regarding what the hell Martin was thinking. My question is this - the defense is arguing for a severe sanction because the misconduct comes from a government lawyer - in essence, connecting her misconduct with the prosecution, although not the individual prosecutors. The government's response is that she was not, in fact, a part of the prosecution team. If she was in fact working on a civil agenda, and not trying to shore up the criminal case, wouldn't that support the government's charge that their case not be penalized because of her misconduct?

    Re: What Was Carla Martin's Agenda in Moussaoui? (none / 0) (#13)
    by rdandrea on Tue Mar 14, 2006 at 12:31:20 PM EST
    I'm not a lawyer, so help me out here. If Martin's purpose was to prevent the FAA witnesses from saying anything in the Moussaoui trial that could hurt the government in a Civil trial, and if the judge sanctions the prosecution by disallowing the testimony of the FAA witnesses, didn't Martin just win?

    Re: What Was Carla Martin's Agenda in Moussaoui? (none / 0) (#14)
    by nolo on Tue Mar 14, 2006 at 01:18:50 PM EST
    rdandrea, the judge only barred the FAA witnesses in the criminal case. Nothing (well, besides all the weird rules about government employees testifying in civil cases, but that's another matter) should stop the plaintiffs in the civil cases from calling the FAA witnesses in their proceedings.

    Re: What Was Carla Martin's Agenda in Moussaoui? (none / 0) (#15)
    by nolo on Tue Mar 14, 2006 at 01:20:32 PM EST
    Oh, and I should have mentioned that the plaintiffs' attorneys in the civil cases are going to have a FIELD DAY with the Martin e-mails when those FAA witnesses testify.

    Typically "bottom of the food chain" lawyers like Carla Martin who spend their careers in the back offices of government bureaucracies aspire to "play in the big leagues." When they have an assignment outside the agency as a "Gofer" for the Big Boy lawyers to which she was relegated in the Lockerbie case, the Airline Business and Property Loss case and now Moussaoui, they like to ingratiate themselves by being "helpful." The purpose of this toadying is to be perceived as a hero, to be noticed and perhaps to be hired out of the woodwork of the bureaucracy and onto a real legal job in the Big Leagues of the grateful law firm she has helped. Her Emails shout this. Martin refers to her "friends". The AAL and UAL lawyers. She ridicules the federal prosecutor's tactics. Martin, in one Email says after naming these and other Major League lawyers by name, as "...ALL OF US AVIATION LAWYERS." Here Martin clearly tries to identify herself as one of them and thus elevate herself to their status as Major League lawyers. Martin graduates from a nondescript law school late in life after a career as a flight attendant, sits for the Bar Exam in Pennsylvania notorious for the ease of passing, takes the only job where this lack of serious credentials permits, the back offices of the federal bureaucracy (FAA) and is shunted off even by the FAA to the Department of Homeland Security quite likely a successful effort to get rid of her to another unsuspecting agency. Fedmediate (Lawyer for 34 years and counting)

    I find it rather interesting that less than 12 hours after Google ranks this blog as the #1 term for "Carla Martin FAA" (among many other similar terms) that the defense attorneys in this case suddenly have this brainstorm a good 2 days after this blogger had already laid it out. I can't help but wonder whether they really came up with this theory independently, or if they use the same Google rank-change monitor program that I do. ;) Good job, TalkLeft! =) Too bad they didn't give you credit...

    Lest we let he prosecutors off the hook too early, if you read their motion for reconsideration (No. 1684 at href="http://notablecases.vaed.uscourts.gov/1:01-cr-00455/docs/71862/0.pdf"> link) you will see that Ms.. Miller is characterized by the prosecutors as a bit player, nothing more than a "horse holder." From the brief:
    "She did not make discovery decisions." "Ms Martin had a very limited role in the CIPA process." "She simply served as a conduit to the security personnel at TSA." "She served only as a coordinator for discovery, and made no substantive decisions."
    Hold on counselors. You can't have it both ways. If this TSA lawyer, Ms Martin, is the legal equivalent of a water boy to your team then what is she doing signing some of your pleadings, interviewing witnesses and being copied on your letters to the defense team ? What are you doing taking the word of this bit player that three of the witnesses don't want to talk to the defense lawyers, now demonstrated in court (in the judge's words) that this was "A bald faced lie." You could have and are required to verify this personally before you communicate such a devastating bomb to the defense. One lousy phone call to just one of these witnesses would have alerted you to Ms. Martin's lie. Shame. Counselors, your Lords and Masters over at the Department of Justice know that you screwed up royally and they will hold you responsible right after they get finished with Ms. Martin. Time to dust off the resumes.