The Justice Department moved swiftly on Wednesday to try to salvage a crucial part of its death penalty case against Zacarias Moussaoui, the only individual charged in the U.S. with a crime growing out of the Sept. 11, 2001, terrorist attacks. The Department asked a federal judge in Alexandria, Va., to reconsider her ruling on Tuesday barring a significant array of testimony and evidence the government had planned to offer to bolster its death sentence request. The motion can be found here The motion argued that the Court’s order “is terribly excessive” and “is patently disproportionate to the prejudice that the defendant [Moussaoui] could conceivably have suffered in this case.” It urged the judge to reconsider the entire order, or at least to “narrow it substantially.”
U.S. District Judge Leonie M. Brinkema had barred any evidence dealing with the issue of aviation security. Prosecutors were counting on having that evidence to show that, if Moussaoui had not lied to FBI agents after his arrest, the government would have been able to take steps that would have thwarted at least some of the hijackers who seized planes and crashed them into the World Trade Center and the Pentagon.
Earlier Wednesday, it had become clear just how seriously the judge’s action had impaired the government’s case. Various news organizations reported that, in a transcript of a telephone conference call on Tuesday, one of the federal prosecutors in the case had told Judge Brinkema that “we don’t know whether it is worth us proceeding at all, candidly, under the ruling…Because without some relief, frankly, I think that there’s no point for us to go forward…”
Essentially repeating that argument in its motion, the Department said the judge’s order makes it “impossible for us to present our theory of the case to the jury. The aviation evidence was not some thrown-in supplement; it is one of the two essential and interconnected components to our case….[H]ad the defendant told the truth, the FBI could have gathered information about the hijackers (the first essential component) and given it to the FAA, which could have used that information to keep the hijackers off airplanes on September 11 (the second essential component).”
Because the judge’s order bars not only the testimony of witnesses that the judge had found were “tainted” by “egregious” tactics of a government aviation lawyer, but also any other aviation security evidence, prosecutors said they would not be able to get their point across by any alternative means. The order thus left prosecutors, the Department said, “no way to show what the FBI could have done with information it had obtained about the hijackers.”
The motion suggested that Judge Brinkema had aimed her punishment at the wrong target — the government’s case, rather than at the federal lawyer that the motion described as “the lone miscreant” — Transportation Safety Administration attorney Carla Martin. Prosecutors said Martin’s actions in dealling with FAA witnesses constituted “aberrant and apparently criminal behavior.”
The Department urged the judge to erase the exclusion order, and replace it with assurances that defense lawyers could mount “full-bodied” cross-examination. But, if any sanction stands, the motion argued, the only evidence that should be barred was evidence “actually tainted.” The prosecution, it said, should remain free to present evidence that would show how an FAA “no fly” list could have been used to try to thwart the hijackings. An “untainted witness” could offer that testimony, allowing the government “to present our complete theory of the case to the jury, albeit in imperfect form.”
The motion contained no hint of what the government would do, such as seeking to appeal, if the trial judge does not withdraw or narrow her sanctions order. There apparently is a dispute about whether the government may appeal such an order mid-trial. The motion, however, did contain citations to past cases in which appeals had resulted in reversal of trial judge’s evidence exclusions.