Setback for U.S. on Moussaoui
on Mar 14, 2006 at 4:25 pm
UPDATE: The Justice Department said Tuesday afternoon that it had asked for and obtained a recess of the death penalty proceeding until Monday. Tasia Scolinos, public affairs director for the Department, said in a statement: “The Justice Department is in the process of carefully reviewing Judge Brinkema’s decision…” The trial was to have resumed Wednesday morning. The postponement would give the Department time to take the dispute to the Fourth Circuit Court. Here is Scolinos’ s full statement.
The order discussed in the post below can be found here. A separate order postponing the proceeding until Monday is here. The judge said the delay was “to enable [the government] to consider whether to move for reconsideration of the Court’s decision to strike the aviation portion of this case or to notice an appeal…”
A federal judge in Alexandria, Va., on Tuesday barred a significant block of testimony from the federal government’s death penalty case against Zacarias Moussaoui, who has admitted taking part in a terrorist conspiracy in 2001. While the judge’s action rejected a defense lawyers’ motion to bar a death sentence, and thus allows the penalty proceeding to continue, prosecutors indicated they were considering an appeal to try to regain the opportunity to put on the excluded evidence.
U.S. District Judge Leonie M. Brinkema is expected to issue an order later Tuesday to explain her decision. But, several news accounts from the federal courthouse in Alexandria said she had ordered the exclusion of any evidence about airport security measures that might have been taken to help prevent the terrorist attacks of Sept. 11, 2001. This was the sanction the judge chose for what she called an egregious violation of her order on isolating expected witnesses from trial testimony and evidence. The judge, according to these news stories, said that she also had learned of apparent attempts to deter a government witness called by the defense from testifying.
The evidence excluded Tuesday had been described by government lawyers on Monday as making up about half of their case. The main theory on which the government is seeking to have Moussaoui sentenced to death is that, when captured before Sept. 11, he lied to federal agents, and his lies kept officials from being able to take steps to head off the attacks that ensued at the World Trade Center, the Pentagon, and in rural Pennsylvania. As a result, the government contends, Moussaoui is responsible for the 9/11 deaths that occurred, and thus is eligible for and should be executed. Aviation security experts were to be called by the government to show that, had Moussaoui not lied, the government could have been able to prevent some of the terrorist hijackers from boarding jets to do violence. The defense also was seeking to call some government employees to counter that testimony.
The judge reportedly said in open court that this evidence was now “irremediably contaminated.”
Earlier in the day, a Transportation Security Agency attorney, Carla Martin, who had shared a trial transcript with government aviation witnesses and discussed with them how they should testify, declined to testify after being told on the stand by Judge Brinkema that she may be at legal risk. She was told to obtain a lawyer. News stories later said the attorney she retained had indicated she would decline to testify, relying on her Fifth Amendment privilege.
(NOTE: Among the news accounts reporting this information were stories by Michael J. Sniffen, a veteran courthouse reporter for the Associated Press, with a well-established reputation for accuracy. This blog is not credentialed to this proceeding.)
Meanwhile, news organizations went to the Fourth Circuit Court, seeking an order that would require Judge Brinkema to make available publicly exhibits admitted into the death penalty proceeding, and transcripts of bench conferences. The judge has twice refused to release those materials until the proceeding is over. The new case at the Circuit Court is In re Associated Press, et al. (docket 06-1301). The Court on Tuesday called for answers to the mandamus petition, due by Thursday.
