Moussaoui Judge Bars FAA Witnesses, Allows Death Case to Proceed

By Jeralyn, Section Terror Trials
Posted on Tue Mar 14, 2006 at 04:10:32 PM EST
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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:

But the officials who took the stand today revealed several other problems, including an assertion by government lawyers in a Feb. 14 letter that three federal aviation officials did not want to talk to defense attorneys. The three, who were sought as witnesses by the defense, said in today's hearing that they were unaware of the letter, and one said he would have been willing to talk to the defense, the Associated Press reported.

Martin, the TSA lawyer accused of misconduct, told one official who was sought as a defense witness that he should not have any contact with defense lawyers, the court was told.

That is a huge no-no. Prosecutors are not allowed to tell witnesses not to discuss the case with the other side. They can only say the decision is up to them.

Then, there's this, for which blame falls squarely on the prosecutors:

In addition, the prosecution acknowledged that it did not advise witnesses of the judge's order governing their conduct and that it held a telephone conference call with two witnesses at once, violating a rule barring trial witnesses from interacting with each other before their testimony. Novak, the prosecutor who initiated the call, told the judge it concerned only the logistics of trial exhibits, not the substance of testimony, AP reported.

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Original Post 11:10 am

Judge Brinkema, with good reason, is seriously miffed at former FAA and TSA attorney Carla Martin. At th