Lawyers joust over Moussaoui death penalty issues
(This is another in a continuing series of reports on the aftermath of Supreme Court opinions and orders. On March 21 of last year, the Supreme Court refused to hear an appeal by Zacarias Moussaoui, the only individual charged in the U.S. with a crime related to the Sept. 11, 2001, terrorist attacks. That denial (in docket 04-8385) led to a guilty plea and to a death penalty proceeding in U.S. District Court in Alexandria. A jury was seated last Monday, and the proceeding began.)
Defense lawyers and prosecutors in the death penalty case against Zacarias Moussaoui took opposing stands on Monday on a new controversy that threatened to disrupt seriously that proceeding. The defense asked a federal judge to deny the government an opportunity to ask for a death sentence on his guilty plea to conspiracy charges growing out of the 2001 terrorist attacks. Technically, it was a “motion to dismiss the death notice.” The text of a memorandum supporting the motion can be found here. The case is U.S. v. Moussaoui, 01-455.)
The government swiftly opposed that motion, filing a memorandum that can be found here. The government contended that the revelations that led to the defense maneuver could be handled with the death penalty trial going forward, through cross-examination of any witnesses involved. “Thee is no sanction more severe than dismissal of the government’s case — or in this context, the death notice. Dismissal would be particularly inappropriate here, where there has been no suggestion of bad faith on the part of the prosecution team.”
The government also argued that the judge had already taken steps adequate to cure a prosecutor’s comment last week that led the defense to seek new sanctions over that incident.
The trial judge, U.S. District Judge Leonie M. Brinkema, held a hearing on the defense motion Monday morning, then took it under advisement. Later, she scheduled a hearing on the issue for 9:30 a.m. Tuesday, and ordered both sides to file legal memoranda on the issues raised by the new developments..
The defense motion noted that, on Feb. 22, the judge had issued an order saying that witnesses who may be called to testify (other than witnesses who were victims of the attacks) “may not attend or otherwise follow trial proceedings (e.g., may not read transcripts) before being called to testify.” The motion said that the defense on Monday morning had received a letter from prosecutors relating a “possible violation” of that Feb. 22 order. It goes on to say that a lawyer with the U.S. Transportation Safety Administration who is a part of the prosecution team had given a copy of the transcript from the first day of trial to a Federal Aviation Admiistration witness who was to testify for the government. The attorney also was said to have sent e-mails with the transcript to two other government witnesses and four defense witnesses. (The motion also noted that the government had communicated directly to the judge about this reported incident.)
Quoting from Monday morning’s hearing on the motion, the defense lawyers’ document said that the judge had said that “[i]n all the years I have been on the bench, I have never seen such an egregious violation of a court’s rule on witnesses…” The judge also was quoted as saying there had been another “very serious problem” last Thursday when, according to the transcript from which the quotation was drawn, she admonished a prosecution lawyer for “an inappropriate comment on a defendant’s right to invoke his Fifth Amendment right to remain silent.”
(UPDATE: Later in the day, the District Court made public the contents of the e-mails mentioned in the motion and the government letter. Here
are the e-mails, along with the government’s letters to the Court and to defense counsel. The letter to the Court asked the judge to withhold from the defense all but one of the e-mails, which prosecutors turned over to the defense team; the others, the government argued, may be attorney work product because the TSA attorney was working on the case.)
The defense motion argued that dismissal of the death notice “is the appropriate sanction for the violations of the Court’s Febraury 22, 2006 Order.” If the Court denies that motion, the defense urged the Court to exclude the testimony “of all government FAA witnesses tainted” by the lawyer’s actions.
In addition, the motion sought sanctions for the Thursday comment about Moussaoui’s remaining silent about the Sept. 11 plot. At the time, the defense had sought a mistrial, but the judge denied that motion. In the new memorandum, proposed sanctions were to remove portions of the statement of facts to which Moussaoui agreed when he pleaded guilty last April, to strike the testimony of an FBI agent who was on the stand when the challenged questions came from the prosecutor, and to give the jury a “curative instruction.”
The government, in its reply, conceded that the violation of the judge’s order on witness access to the proceedings was “egregious” and “flagrant,” but was “unforeseeable to the prosecution.” It said the prosecution’s arguments on this incident would be borne out by testimony on Tuesday.
Arguing against the loss of its chance to seek a death sentence, the prosecution team said “we have found no published decision dismissing a case for violation of the sequestration rule — death penalty or otherwise….Any sanction must be proportional to the severity of the offense.”
The government also argued against excluding any witnesses, saying that “potential prejudice can readily be cured by permitting cross-examination on the issue of the witness’s improperly acquired knowledge.” It said that only two of the seven witnesses allegedly sent the transcript will say on the stand Tuesday that they read it.
Regarding the prosecutor’s comment about Moussaoui’s silence, the government said that the judge had sustained a defense objection at the time, and had admonished the jury to disregard the question. “Thus, even if the question was improper, the Court’s ruling cured any prejudice,” the prosecutors said.
Dust-ups like these in penalty-phase proceedings are illustrative of why the Supreme Court was wrong to hold that mandatory death sentences are unconstitutional. The fetishlike zeal of our criminal justice system in bending over backwards for invented rights of murderers creates problems such as in this case. In the Constitution I’ve read, a mandatory death sentence for a vicious terrorist like Moussaoui is not prohibited and is therefore permitted. We wouldn’t be having this discussion about Moussaoui escaping death if the Supreme Court hadn’t overstepped its bounds.
It’s easy to throw stones at the prosecutors. What about the courts that have created all these procedural nightmares in getting to death?
Comment by federalist — March 14, 2006 @ 12:54 am
Ok, federalist. Having said that, how about case#2 the case of federalist’s son, where son is really innocent? Would that change your vision of the proper outcome? Just curious.
Comment by Mary — March 14, 2006 @ 9:21 am
Federalist: It’s easy to throw stones at the prosecutors. What about the courts that have created all these procedural nightmares in getting to death?
Let’s march all the guilty off to the death chamber so that we can just get over it. And to remove some of the procedural difficulties you decry, we can also strip the accused of their rights.
If there has been any “bending over backwards” in this case, it has been the government’s efforts to hang a death warrant on Mousaoui.
Comment by 14th Amendment — March 14, 2006 @ 10:08 am
14th:
Well, with respect to the rights of the accused provided by the constitution and law enacted by the people’s representatives, those protections should be enforced. With respect to the “death is different” jurisprudence, I would have zero problems stripping it.
Moussaoui is a case in point. Does anyone really believe that the inability of the law to impose a mandatory death sentence on a man who was involved in a plot that killed thousands is dictated by the Constitution? (Now, it is unknowable whether Congress would have passed a mandatory death penalty for people like Moussaoui. But I am not sure that the Supreme Court deserves the benefit of the doubt on that point.) Thus, I think it fair to pin ultimate responsibility for these kinds of issues on the judiciary that created this fetishism that is our death penalty jurisprudence.
Apparently, you are upset that the government is zealously trying to get the death penalty for Moussaoui. Given that the Congress has authorized the death penalty–why wouldn’t the government try to get death here?
Mary–as for innocence, not the issue here. Moussaoui pled guilty.
Comment by federalist — March 14, 2006 @ 1:34 pm
He may have pleaded guilty, but he didn’t plead guilty to the (speculative) crimes the government is alleging at penalty phase: knowing about and having been able to prevent the 9/11 attacks.
Furthermore, this kind of egregious prosecutorial misconduct is something that I thought might irk even you. Forget whether someone’s life is on the line, do you really think it should be kosher for lawyers to coach crucial witnesses like this?
Comment by SP — March 14, 2006 @ 4:32 pm
Contrary to most media reports, the issue isn’t “coaching” of witnesses, the permissibility of which is, to some extent, a matter of degree. Rather it is the clear violation of the sequestration order, presumably ordered under FRE 615 at the request of Defendant. After entry of that order it was the duty of trial counsel to explain what sequestration meant to each witness intended to be called.
The only question is whether the violation was deliberate or the result of gross negligence.
Comment by Spencer Ervin — March 14, 2006 @ 4:53 pm
As a matter of curiosity, in which state bar is Ms. Martin licensed? She’s not admitted in D.C. or Maryland (or Tennessee, her home state). It would seem that she might be subject to disciplinary proceedings by her state bar.
Comment by AndyP — March 15, 2006 @ 9:58 am
Thanks for clarifying, Spencer Ervin. I definitely should have been more precise. The violation of the sequestration order makes the TSA lawyer’s communications particularly egregious (unquestionably so), though I think this extent of coaching would have been out of line regardless of whether this order was in place.
Comment by SP — March 15, 2006 @ 2:31 pm