Moussaoui seeks to limit testimony
on Mar 21, 2006 at 9:59 am
Defense lawyers for Zacarias Moussaoui on Tuesday asked the trial judge in his death penalty trial to limit the testimony that government witnesses may use to justify a capital sentence, barring them from talking about his failure to reveal information to an FBI agents after his arrest prior to the Sept. 11, 2001, terrorist attacks. The motion to amend the judge’s order of last Friday can be found here.
U.S. District Judge Leonie M. Brinkema, in relaxing an earlier ban on any testimony or exhibits about aviation security following the Sept. 11 attacks, allowed the government to present witnesses who would say what the federal government could have done to prevent the attacks if Moussaoui had disclosed after his arrest in August “the facts that he admitted in pleading guilty.”
Fully one half of the government’s case in favor of a death sentence is based on the theory that, because Moussaoui lied to an FBI agent, Moussaoui was liable for the deaths that occurred on Sept. 11, because his lies kept the government from taking steps that might have thwarted the hijackers from getting on planes to carry out their terrorist mission.
In the new motion, Moussaoui’s lawyers argued that the government must be allowed to proceed on that theory, only to the extent that it relies on Moussaoui’s lies, not on what he failed to say to them. Because he had no obligation to tell the agents anything, his lawyers argue, the government may not suggest what would have been done if he had volunteered information, the motion contended.
All that the government charged Moussaoui with doing, in the indictment to which he pleaded guilty, was that he had lied, and the lies were the act that caused the victims’ deaths, the lawyers noted. He was not charged with a failure to tell the truth, nor with a failure to tell what he knew at the time, they said.
To now allow government witnesses to take the stand and discuss what they could have done had he told the truth or revealed what he knew, or even had he revealed the facts that he later admitted in pleading guilty, would be to amend the indictment after the fact, the motion argued. In the absence of his lies, the FBI agent who interviewed hiim “would not have been entitled to, and would not have obtained, the information Mr. Moussaoui admitted as part of his guilty plea.”
“This distinction is neither technical nor esoteric,” the motion contended. “It is the very underpinning of the government’s power to criminalize the making of false statements to government officials.”
“Neither the government, by its evidence, argument or otherwise, nor the Court by its instructions or evidentiary rulings, may effectuate a constructive change to the allegation of the grand jury or the notice provided to the defendant,” the motion added.
Moreover, the defense team contended, any ruling by the judge allowing the government witnesses to testify about what they could have done if Moussaoui had not omitted information would be to rewrite the federal death penalty law. That requires, to justify a death sentence, an act, not an omission, they said.
“The defendant respectfully requests that the Court amend its order of March 17, 2006, to preclude testimony by the FAA witnesses based upon the defendant’s failure to tell the truth, including information he admitted in connection with his guilty plea,” the motion concluded.
