Moussaoui defends sanctions order
on Mar 16, 2006 at 5:44 pm
Defense lawyers for Zacarias Moussaoui, facing a potential death penalty for a conspiracy related to the 2001 terrorist attacks, on Thursday urged a federal judge to make no change in her order blocking about half of the federal government’s case in support of a death sentence.
It is unknown when U.S. District Judge Leonie M. Brinkema will act on the government’s plea to withdraw or narrow her sanctions order. The death penalty proceeding is in recess until Monday, but there could be a further delay. The government has not revealed whether it will seek to appeal if the judge does not alter her order.
In a memorandum filed in U.S. District Court in Alexandria, Va., (found here), Moussaoui’s attorneys argue that the order issued Tuesday by Brinkema “was, without question, necessary to protect Mr. Moussaoui’s right to a fair trial and to protect the integrity of the criminal justice system.” They accused the prosecution team of seeking “to absolve itself from the actions of its own employees” that led to the sanctions order.
Brinkema’s order bars the government from offering on any testimony or exhibits in the proceeding about aviation security — that is, any evidence that would seek to show that, if Moussaoui had not lied to FBI agents after his capture before the terrorist attacks, the government could have taken steps that might have prevented at least some of the terrorist hijackers from boarding planes to carry out their terrorist mission. The government on Wednesday, arguing that the exclusion may impair seriously its case, urged the judge to abandon the order, or at least to narrow it significantly. Prosecutors, though, did concede that disclosure to witnesses who had been called of some of the courtroom presentations in the case was wrong, unexcused and “apparently criminal.”
The defense team said that the government in opposing the judge’s order had attempted to minizmize the role of a Transportation Security Administration attorney, Carla Martin, the individual identified who shared evidence with seven witnesses in violation of an order by Brinkema in February. The prosecutors, Moussaoui’s opposition papers said, attempted to reduce Martin “to virtually the status of a messenger.” But, with some sarcasm, the defense team argued, the evidence of her role with the prosecutors showed more “direct involvement with the misconduct at issue here than the government will adduce about Mr. Moussaoui’s involvement with the hijackers, yet it considers that connection sufficient to actually execute him.” The lawyers said that Ms Martin has been named in pleadings “as one of the government’s attorneys working on this case” and that she has been present for many hearings in the case, including some dealing with classified evidence.
Discussing legal points about modifying or abandoning the sanctions order, the defense reply said that “absent a need to accommodate an intervening change in controlling law, to account for new evidence not previously available, or to correct a clear error of law, a court should not be asked to reconsider a ruling previously made.” The government’s only argument, the defense suggested, was that “the Court should have exercised its discretion differently.”
Discussing the three errors that it noted Judge Brinkema had found before issuing her order, the defense ridiculed the government’s contention on Wednesday that there is no actual prejudice to Moussaoui from those errors. That argument, the defense said, is “baseless.”
Those attorneys also said that “the legal issues posed by Ms. Martin’s apparently criminal conduct continue to grow as more parties learn of her actions.” The defense enclosed a letter to a federal judge in New York City presiding over a lawsuit against airlines resulting from the 2001 attacks, suggesting that some attorneys in the aviation case may be attempting to shape the government’s death case against Moussaoui. “What we learned today only shows that the virus is spreading,” the defense attorneys said.
The new filing also contended that the government, with aviation security evidence, would be seeking to prove something that the government had not planned when it initially proposed a death sentence. In the notice of intent to seek the death penalty, the reply noted, the government said that it would show as an act justifying such a sentence that Moussaoui had lied, and that act connected him with the deaths on Sept. 11. Now, according to the defense, the government is seeking an opportunity to prove that the deaths were due to Moussaoui’s failure to tell the truth. That would contradict his right to remain silent, the lawyers contended.
The reply also challenged the goveernment’s proposal that, as an alternative to the ban on aviation security evidence, it be allowed to call another witness to help make some of the points that would have been made by that evidence. The trial judge, the reply noted, required a witness list before the death proceeding began. “The government now proposes to violate this Court’s order…to remedy the errors created by its own misconduct.” the reply added.
“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,” the reply said. “It would be an extraorindary proposition — and like the Court, the defense is unaware of any such case — to execute a defendant for an omission, including his failure to take the affirmative step of telling the truth. But that is precisely what the government is now attempting to do…”
Part of Judge Brinkema’s reasons for issuing the broad sanctions order was her discontent with questioning last week by a prosecutor that she suggested indicated an intent to show Moussaoui was obliged to reveal criminal evidence.
