Government Lawyer Excused From Mossaoui Hearing
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

ALEXANDRIA, Va. (AP) – A lawyer at the center of the prosecutorial misconduct controversy enveloping the trial of confessed al-Qaida conspirator Zacarias Moussaoui got her interrogation delayed Tuesday after telling a federal judge that she had not been able to line up her own attorney.
U.S. District Judge Leonie Brinkema excused Carla J. Martin of the Transportation Security Administration from a hearing that the judge had scheduled to give federal prosecutors a chance to save their bid to have Moussaoui executed.
Brinkema called a halt to Moussaoui’s sentencing trial Monday, castigating the government prosecution team for witness coaching. Martin was subsequently identified as the lawyer involved, and Brinkema said that her conduct made it very difficult for the trial to go forward.
Brinkema had intended to question Martin Tuesday to assess what damage might have been done by witness coaching.
The seven present or former federal aviation officials _ three prosecution and four defense witnesses _ also were to be questioned, and that part of Tuesday’s hearing was proceeding without Martin’s participation.
Brinkema said she wanted to “find out if I can satisfy myself that their testimony is not going to be slanted or otherwise inaccurate” as a result of Martin’s coaching.
Brinkema sent the jury home Monday after suspending the trial, and to give herself time to decide on a remedy for the government misconduct.
Defense attorney Edward MacMahon has moved to bar the government from pursuing the death penalty. If Brinkema does that, the trial would end. Moussaoui would automatically be sentenced to life in prison without possibility of release. And the government would likely appeal.
The trial’s second week began Monday with a bombshell: “In all the years I have been on the bench, I have never seen such an egregious violation of a court’s rule on witnesses,” Brinkema told the court before the jury was brought in.
Brinkema had ordered that trial witnesses were not to see trial transcripts or to follow the case, to guard against their being coached or altering their testimony to conform with what others said.
Prosecutor David Novak, who had disclosed Martin’s actions over the weekend, agreed they were “horrendously wrong.”
In moving to exclude the death penalty, MacMahon said, “This is not going to be a fair trial.”
At the very least, he said, the government’s witnesses from the Federal Aviation Administration should be excluded. But Novak protested they represented “half the government’s case.” He offered to reduce the number of government FAA witnesses and allow some defense FAA testimony without cross-examination.
Among the options Brinkema could consider are to accept the defense’s motion to dismiss the government’s bid for the death penalty. Or she could approve an alternate defense motion to exclude some government witnesses from the Federal Aviation Administration and let the trial continue.
Brinkema also could declare a mistrial on her own, or she could accept a proposal by the government that any taint to the seven witnesses in question could be cured by an aggressive cross-examination by the defense.
In a court filing, prosecutors said there is no need to exclude the FAA witnesses from testifying, saying the violation of the court’s order, “while egregious,” can be remedied when the witnesses are questioned in front of the jury.
The defense said in court papers, “There is no way to un-ring the bell. The FAA witnesses have been tainted.”
Martin e-mailed the upcoming witnesses a transcript of the trial’s first day and her analysis of the government’s opening statement and of vulnerabilities exposed in the government’s case by questioning of the first witness. Until recently, Martin had been the government lawyer representing the FAA witnesses.
Martin said the opening statement “has created a credibility gap that the defense can drive a truck through.” She expressed concern that FAA witnesses would be made to look foolish on cross-examination and tried to shape their future testimony to meet or deflect possible defense attacks.
Brinkema said she also would reconsider the defense’s request of last week for a mistrial _ made after a question from Novak suggested to the jury that Moussaoui might have had an obligation to confess his terrorist connections to the FBI even after he had invoked his right to an attorney.
Ruling the question out of order, she warned the government it was treading on shaky legal ground because she knew of no case where a failure to act resulted in a death penalty as a matter of law.
“This is the second significant error by the government affecting the constitutional rights of this defendant and, more importantly, the integrity of the criminal justice system in this country,” Brinkema said Monday.
Moussaoui pleaded guilty in April to conspiring with al-Qaida to fly airplanes into U.S. buildings; this trial is to determine whether he will be executed or spend life behind bars.
The only person charged in this country in al-Qaida’s Sept. 11, 2001, attacks, Moussaoui has denied having any role in those attacks. He says he was training for a possible future attack.