Judge eases Moussaoui evidence ban
on Mar 17, 2006 at 1:57 pm
(UPDATE: Both the prosecution and defense agreed on Friday night that a further hearing be held in the Moussaoui case to explore more fully the actions of a government lawyer that earlier in the week threatened to undermine much of the government’s case for a death sentence. The defense urged the trial judge to hold an evidentiary hearing on Monday, to p question that attorney — Carla Martin. The defense took that step after Martin’s attorney said in news interviews that she was prepared to tell her story. Prosecutors said they would welcome a chance to question Martin, but only if her lawyer indicates that she will not invoke her Fifth Amendment privilege. The new defense motion is here, and the prosecutors’ response is here.)
A federal judge in Alexandria, Va., on Friday partially withdrew her ban on some of the key evidence that the federal government planned to offer to support a death sentence for Zacarias Moussaoui for his admitted role in a terrorist conspiracy. The judge’s order can be found here. It appeared likely that the new order would allow the government to salvage a good part of the case that the judge’s earlier order had scuttled.
U.S. District Judge Leonie M. Brinkema on Tuesday had barred federal prosecutors from offering any aviation security testimony or exhibits, after she learned that a federal lawyer had disobeyed an order not to share courtroom materials with witnesses who were expected to be called to the stand. The government, saying that the total ban could make it impossible to pursue fully half of their case in the death penalty proceeding, asked her to reconsider.
In doing so, Brinkema narrowed her ban. While still barring any aviation witnesses and evidence with which that federal lawyer had been involved. That meant seven Federal Aviation Administration witnesses who were scheduled to testify on each side in the case, with their testimony focusing on the steps the government might have taken to thwart the Sept. 11, 2001, terrorist hijackers, had Moussaoui not lied to federal agents after his arrest prior to the attacks.
The judge accepted an alternative that the government had proposed, allowing it to “call untainted aviation witnesses or otherwise produce evidence not tainted” by the actions of the federal lawyer, Carla Martin of the Transportation Security Administration. She told prosecutors to give the defense the name or names of “untainted witnesses” at least three days before they are to testify, and to share physical evidence that was not tainted as soon as it was available.
The substitute witnesses, the judge ruled, may testify about what the government “could” have done to prevent the attacks had Moussaoui disclosed the facts he later admitted in pleading guilty, not what the government “would” have done. Any testimony along the latter line, she said, “would be unduly speculative and misleading to the jury.”
Although she largely adopted the alternative the prosecutors had requested, it is unknown whether they would try to appeal to seek a chance to use the witnesses that remain banned under the new order.
