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Judge raises possibility of mistrial in moussaoui sentence { March 13 2006 } Original Source Link: (May no longer be active)
http://www.nytimes.com/2006/03/13/national/13cnd-moussaoui.htmlhttp://www.nytimes.com/2006/03/13/national/13cnd-moussaoui.html
March 13, 2006
Judge Raises Possibility of Mistrial in Moussaoui Sentencing
By NEIL A. LEWIS
ALEXANDRIA, Va., March 13 — The sentencing trial of Zacarias Moussaoui teetered on the brink of a mistrial today, as the judge in the case angrily said she might spare him the death penalty following the disclosure that a government lawyer had improperly coached some witnesses.
"In all my years on the bench, I've never seen a more egregious violation of the rule about witnesses," Judge Leonie M. Brinkema said.
The judge recessed the trial until Wednesday. She said she would rule then on a request from Mr. Moussaoui's court-appointed lawyers that she end the sentencing trial, now in its second week, and order that he be imprisoned for life instead of executed, as the government has urged.
She also scheduled a hearing for Tuesday to look into the improper sharing of information with seven witnesses — some of whom were scheduled to testify for the prosecution and some for the defense. The lawyer involved in the incident was identified by a federal official as Carla J. Martin of the Transportation Security Administration. Judge Brinkema had earlier ordered that people scheduled to testify not be given access to transcripts by prior witnesses, a common order in such cases.
But Ms. Martin gave the witnesses transcripts of opening statements and of testimony last week by an F.B.I. agent, Michael Anticev.
Two of the witnesses scheduled to appear for the government were identified as Lynne A. Osmus and Claudio Manno of the Federal Aviation Administration.
The testimony of aviation officials could be crucial because of the unusual nature of the hearing.
Mr. Moussaoui, a 37-year-old Frenchman of Moroccan heritage, has already pleaded guilty to six felony counts, three of which expose him to the death penalty. The only question before the jury is whether he should be executed or sentenced to life in prison.
When the attacks of Sept. 11, 2001, were carried out, Mr. Moussaoui was in jail, having been arrested three weeks earlier in Minnesota, where he was taking flying lessons. The government has argued that he deserves to be executed because he lied to investigators after his arrest about his knowledge of Al Qaeda plans to fly airplanes into buildings.
The aviation officials were expected to testify as to what steps might have been taken if Mr. Moussaoui had told the truth.
At the time of the Sept. 11 attacks, Ms. Osmus was the deputy associate administrator of the agency's Civil Aviation Security Program, and Mr. Manno was the director of the Office of Intelligence in that office. After the attacks, Congress transferred the job of aviation security to a new agency, the Transportation Security Administration, but Ms. Osmus and Mr. Manno are still with the F.A.A.
Edward J. MacMahon, Mr. Moussaoui's chief defense lawyer, said Ms. Martin had been engaged in "an obvious effort to shape the testimony of the witnesses."
David Novak, a prosecutor, agreed that the disclosures had been wrong. But he argued that the case should go forward and that any problems caused by Ms. Martin's actions could be remedied during cross-examination by Mr. Moussaoui's lawyers.
It was not clear why Ms. Martin had shared materials with defense witnesses, who are expected to testify about earlier warnings about terrorist threats to hijack airplanes. Judge Brinkema said that she would question all the witnesses for both sides on Tuesday before making a decision on the motion for a mistrial.
Judge Brinkema, who said she had been informed of the coaching by the prosecutors, recalled that on Thursday, she had denied a defense motion for a mistrial because of a separate mistake, although she had admonished prosecutors at that time.
"This is the second significant error of the government affecting the constitutional rights of this defendant," she said. "More importantly, it affects the integrity of the criminal justice system in the United States."
David Novak, a prosecutor, argued that the case should go forward and that any problems caused by Ms. Martin's actions could be remedied during cross-examination by Mr. Moussaoui's lawyers.
Last week, the jury heard testimony from the F.B.I. agent who arrested Mr. Moussaoui on immigration charges three weeks before the Sept. 11 attacks.
The agent, Harry Samit, testified that he was convinced that Mr. Moussaoui was an Islamic extremist who knew about some terrorist plan involving airplane hijackings, but that Mr. Moussaoui's lies sent him off on "wild goose chases" up to the day of the attacks.
Mr. Samit testified that he had tried to obtain warrants to search Mr. Moussaoui's belongings but had been hampered because Mr. Moussaoui had concealed that he was a member of Al Qaeda and that the group was plotting to crash planes into buildings.
If Mr. Moussaoui had not concealed that information, Mr. Samit said, that would have led to an intense investigation, but he did not flatly assert that it would have prevented the attacks.
In questioning Mr. Samit, Mr. Novak asked loudly whether Mr. Moussaoui had reached out from the local jail to tell him what he knew about Al Qaeda in the immediate days before the attack. By that time, Mr. Moussaoui had said he would not speak to investigators without a lawyer.
Judge Brinkema, who had warned prosecutors not to go too far in talking of Mr. Moussaoui's responsibility to confess fully, ruled the question improper, but said it did not rise to a mistrial.
Matthew L. Wald contributed reporting from Washington for this article, and John O'Neil from New York.
Copyright 2006 The New York Times Company
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