March 14, 2006 in Nation/World

Moussaoui sentencing jeopardized

Kevin Johnson USA Today
The Spokesman-Review photo

(Full-size photo)

Judge’s options

If she does not remove the death penalty for Moussaoui, the judge could:

“Allow the witnesses to testify and allow defense lawyers to question them about the government lawyer’s actions. “Excuse the witnesses from the trial, putting a huge dent in the government’s case.

ALEXANDRIA, Va. – A federal judge is threatening to eliminate the possibility of the death penalty for convicted al-Qaida conspirator Zacarias Moussaoui because a government lawyer leaked transcripts of court hearings to seven witnesses to try to influence their upcoming testimony.

An angry U.S. District Judge Leonie Brinkema called the lawyer’s action a “blatant violation” of a court order in which Brinkema had barred witnesses in the case from viewing or listening to accounts of hearings before they testify. Brinkema scheduled a hearing today without jurors to help her determine whether to sanction the government by dismissing its bid to execute Moussaoui and giving him a life sentence instead.

“In all my years on the bench, I’ve never seen such an egregious violation of the court’s rule on witnesses,” Brinkema, who joined the federal bench in 1993, told attorneys Monday before dismissing the jury for the day. “It is very difficult for this case to move forward.”

The episode raises the possibility that the only U.S. prosecution stemming from the Sept. 11, 2001, attacks could come to a sudden and embarrassing halt for the government. Moussaoui, a French citizen who was a flight student when he was arrested on immigration charges in Minnesota three weeks before the Sept. 11 attacks, pleaded guilty to terrorism conspiracy last year after acknowledging he was a member of al-Qaida.

During Moussaoui’s sentencing trial, prosecutors have argued that he should be executed rather than receive a life sentence because he could have tipped U.S. agents to the unfolding Sept. 11 plot after his arrest but chose not to do so.

Now, however, the trial is focused on the action of a government lawyer, identified in court records as Carla Martin, of the Transportation Security Administration. Martin is not part of the government’s trial team, but she is preparing prospective witnesses who are current or past employees of the Federal Aviation Administration. Last week, she sent the witnesses a flurry of e-mails containing tips and criticisms of the government’s opening arguments, according to prosecutors who notified Brinkema of Martin’s actions.

In court papers filed Monday, prosecutors skewered Martin and asked for Brinkema’s forgiveness.

“We view Ms. Martin’s conduct as reprehensible, and we frankly cannot fathom why she engaged in such conduct,” assistant U.S. attorneys Robert Spencer, David Novak and David Raskin said in documents notifying Brinkema of Martin’s actions.

Martin could not be reached for comment.

Analysts said Brinkema’s order restricting witnesses’ conduct is typical in criminal and civil courts.

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