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Moussaoui Judge Bars FAA Witnesses, Allows Death Case to Proceed

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 the hearing this morning, the Judge said Martin could refuse to testify because she faced legal jeopardy over her e-mails to trial witnesses.

Martin asked for more time to get a lawyer, and the judge gave it to her -- till tomorrow morning. The Judge probably knows any lawyer she gets is going to advise her to take the 5th and refuse to testify so a long delay isn't necessary. The Judge also refused to allow Martin to make a statement to the Court, admonishing her that she is now a witness.

My theory on Ms. Martin's separate agenda in disclosing the transcripts and her opinions to trial witnesses is here.

From the WaPO article linked above:

Carla J. Martin, a Transportation Security Administration lawyer who was been accused of coaching witnesses in the case, asked permission to address the court and was immediately cut off by an irritated U.S. District Judge Leonie M. Brinkema, who told her, "No, you're a witness."

When prosecutor David J. Novak suggested that Martin be advised of her rights, Brinkema told her that she has the right not to testify, that her testimony could be used against her because she is in jeopardy for the alleged violation of a court order and that she has the right to be represented by counsel.

Update: There's been a lot of talk about whether Carla J. Martin was just an attorney for the Government or an attorney in the Moussaoui case. As I wrote yesterday here, she wasn't a prosecutor in the case, but she co-signed this pleading with the prosectors which I think makes it fair to say she is an attorney in the case.

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    Is it me, or is this thing going over-the-top weird?

    Re: Moussaoui Judge Bars FAA Witnesses, Allows Dea (none / 0) (#2)
    by nolo on Tue Mar 14, 2006 at 11:21:05 AM EST
    More from the WaPo article --
    Martin's e-mails were highly critical of the government's case, especially an assertion by prosecutors that the government could have stopped the Sept. 11 terror attacks if Moussaoui had not lied to the FBI by, among other things, having the FAA focus airport security on short-bladed knives. The Sept. 11 hijackers used such knives to take over four airplanes. "There is no way anyone could say that the carriers could have prevented all short bladed knives from going through -- Dave [Novak] MUST elicit that from you and the airline witnesses on direct, and not allow the defense to cut your credibility on cross," Martin wrote.
    This shores up Jeralyn's theory nicely. Martin's focus clearly was on the specter of government/air carrier liability in the civil cases, not on helping the prosecution in the sentencing hearing.

    I am quite cynical but at heart hope that I am wrong but as soon as I read the excerpt from the AP story you quoted: "Martin's e-mails to the upcoming witnesses included excerpts of the government's opening statement and Martin's assessment that the opening statement "has created a credibility gap that the defense can drive a truck through." She expressed concern that FAA witnesses would be made to look foolish on cross-examination and warned them to be prepared for certain topics." My instinct was to go exactly where you went with your theory for Martin's reasons even before I had read your theory. Corp. America = Gov't. = Fascism.

    Jeralyn, The headline for the LATimes refers to the misconduct as a "blunder" (which the body of the text describes clearly as misconduct (See the statements of the prosecutors and her boss for context)) which speaks to me of media-level "cover-up". Further, the article states in the last graph: "In Martin's e-mails to witnesses, she voiced concerns that prosecutors were overselling to the jury the FAA's ability to stop the hijackers at the airports and prevent them from boarding the four planes -- even if Moussaoui had tipped off the government that the attacks were coming." Your theory seems supported by this piece from the LATimes. Good work!

    Re: Moussaoui Judge Bars FAA Witnesses, Allows Dea (none / 0) (#5)
    by nolo on Tue Mar 14, 2006 at 01:12:46 PM EST
    CNN's reporting that the judge will allow the Feds to continue to seek the death penalty, but that the Feds cannot call the tainted witnesses.

    Thanks. This is very Interesting. Corporate Media implied that the TSA lawyer was part of the prosecution team. A gigantic screw up. Instead it is a reflection of federal government cronyism. Her clients are FAA, United and American Airlines. God forbid they will ever be found at fault for 9-11. Civil Service used to mean serving the American Public but with deregulation and the Reagan Revolution, federal employees serve their Stakeholders: the President's Cabal and Campaign Contributors.

    Re: Moussaoui Judge Bars FAA Witnesses, Allows Dea (none / 0) (#7)
    by Sailor on Tue Mar 14, 2006 at 04:14:12 PM EST
    update for TL:"Later, Brinkema said the government lawyer's attorney contacted the judge and said Martin wouldn't be available today or tomorrow." Ahh, how nice to have a choice in when you show up for court. And it's not just Martin who violated the judges order:
    In addition, FAA official Claudio Manno said he and Osmus participated together in a conference call to discuss the case with Novak.
    Novak is the lead prosecutor.

    Re: Moussaoui Judge Bars FAA Witnesses, Allows Dea (none / 0) (#8)
    by Peter G on Tue Mar 14, 2006 at 04:15:45 PM EST
    SCOTUSBlog reports that Judge Brinkema has sticken the Aviation portion of the government's case and barred those witnesses. She then granted a govt motion to recess until Monday, so they can consider whether to appeal to the Fourth Circuit. Typically, the govt will move for reconsideration of any discretionary order (such as Judge Brinkema entered today) before appealing, so if they file that motion tomorrow or Thursday, that will be a sign of impending appeal proceedings. The Fourth has so far consistently favored the govt's position when they have disputed Judge Brinkema's moderate and balanced rulings in this case.

    Grieve them all!

    Re: Moussaoui Judge Bars FAA Witnesses, Allows Dea (none / 0) (#10)
    by rMatey on Tue Mar 14, 2006 at 06:23:41 PM EST
    Coaching the witnesses, my, my! How patently repugnicant. How incompetent. So Bushian.

    The purportedly reasonable Judge Brinkema, the same judge who intimated verbally just a few days ago that the death penalty for this crime is/was unprecedented, responds to egregious prosecutorial misconduct in the form of witness tampering/coaching by keeping the death penalty in play. And you classify her action as "splitting the baby". I suppose this small toe-nail clipping from the government's case does classify as removing part of the baby and therefore by some exceptional perspective, as a baby splitting. God YOU ARE FUNNY!!! Too bad, Judge Brinkema demonstrates far more concern for her self-image than this defendant and the law. I'm sure she expressed her decision with the stoicism of a steely-eyed logic master, so studied, so reasoned.

    Re: Moussaoui Judge Bars FAA Witnesses, Allows Dea (none / 0) (#12)
    by Sailor on Tue Mar 14, 2006 at 08:46:12 PM EST
    rsd43, I see your point, but I think she is trying to set a ruling that won't be overturned, unlike her last attempt at giving him a fair trial.

    Re: Moussaoui Judge Bars FAA Witnesses, Allows Dea (none / 0) (#13)
    by wg on Tue Mar 14, 2006 at 11:40:20 PM EST
    While everybody, myself included, is happy to see Ms. Brinkema promptly catching shenanigans of government prosecutors I feel a little ambivalent. If you read the news carefully you will see that the prosecutors violated not a standard procedural rule but something that was imposed by Ms. Brinkema specifically for this trial. I have no reason to doubt the wisdom of that particular ad-hoc rule, but remain deeply uncomfortable with the system where judges can impose ad-hoc rules basically willy nilly. The reasons for restricting judges from promulgating ad-hoc rules are multitude. The consistency and uniformity of the judicial process is one of them. Its predictability is another, all participants in the process should know well in advance what the rules are so they can prepare appropriately. Thirdly excessive power tends to breed arrogance. And US justice system particularly can barely afford the latter as is. Furthermore allowing judges to proclaim whatever rules they wish is also inherently dangerous. While the majority of judges can be counted on exercising that power prudently, it is statistically certain that there will be some who will abuse that power either out of maliciousness or simple ignorance. Lets face it there are judges out there who look and act as this well known American caricature. For these reasons most judicial systems operate with a well defined, carefully crafted set of rules and do not allow judges to amend them. We risk too much if we don't.

    Re: Moussaoui Judge Bars FAA Witnesses, Allows Dea (none / 0) (#14)
    by wg on Wed Mar 15, 2006 at 12:04:06 AM EST
    Let me add one more to the four listed above: shielding the participants from judicial capriciousness. Critical in our system, I think. -- There must be some reasons for judicial rule making discretion. I cannot think of one. Help, pointers please.

    Re: Moussaoui Judge Bars FAA Witnesses, Allows Dea (none / 0) (#15)
    by jimakaPPJ on Wed Mar 15, 2006 at 06:04:20 AM EST
    wg writes:
    While everybody, myself included, is happy to see Ms. Brinkema promptly catching shenanigans of government prosecutors
    Uh, if I remember correctly, it was the governnment who brought this to the attention of the judge.

    Re: Moussaoui Judge Bars FAA Witnesses, Allows Dea (none / 0) (#16)
    by wg on Wed Mar 15, 2006 at 06:12:58 AM EST
    Correct, should have used "penalizing" instead.

    Gee, that's big of 'em. Like they were gonna slip it past her, Jim. The US has a better chance of getting out of Iraq by sunrise with nobody noticing. They had no choice. If they tried to slip it past her, she would've thrown their entire case out and brought sanctions that probably would've culminated in their disbarment, so spare me the magnanimous gesture malarkey. Nobody's buyin' it.

    Is this a bench or jury sentencing hearing?