Judge Issues Compromise Order on Moussaoui Aviation Evidence
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.
From the defense motion (pdf). [Note: you can read the hearing transcript here (html)]:
First among these errors was the violation of the Court's rule on witnesses. The Court found that "the evidence is uncontroverted . . . [that] six witnesses, two for the government and four potential defense witnesses, were tainted in that the [government] attorney, Ms. Martin, communicated with them in clear violation of the Court's written order." Tr. 214.
The second error concerned the government's representation to the defense that
none of the three FAA employees who were potential defense witnesses would "agree to meet with [the defense] for an interview before trial." Tr. 200-01. The Court found that, based on the evidence, this representation was a "bald-faced lie." Tr. 201.The third error concerned the extensive taint Ms. Martin's false actions and
representations had on the aviation portion of the government's case, including "the selection of evidence." Tr. 217. The Court found that Ms. Martin was "involved in a significant portion of [the government's] case,'' and that "[she] appears to have been the key contact person between the prosecution team and the TSA-FAA component in terms of getting documents and that sort of thing." Tr. 201-02. The Court noted that Ms. Martin was "included on some of [the government's] pleadings to this Court [and she was] cc'd on some of the letters that [the government was] sending to the defense team."
In short,
While an incarcerated defendant may not lie to authorities, he certainly is not
required to tell the truth, for he is not required to say anything. See, e.g., Edwards v.Arizona, 451 U.S. 477 (1981).
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