Thursday, March 16, 2006


The Moussaoui Case

Put simply, it would suck to be Carla Martin right now. She is the Lawyer in 9/11 Case Placed on Leave yesterday for contacting certain witnesses in the ongoing proceedings to determine whether Zacarias Moussaoui gets the death penalty for his role in the 9/11 attacks. The judge had specifically ordered there be no such contact. As a result, the judge then banned those witnesses (and other aviation evidence) from testifying; effectively gutting the government’s case.

“Legal experts said it devastated the prosecution's main argument -- that if Moussaoui had not lied to the FBI about his knowledge of the Sept. 11, 2001, plot, the hijackings could have been prevented. The witnesses are airline security experts who would have testified about the measures the government would have taken had the truth been told.”  Federal Witnesses Banned in 9/11 Trial

The first thing to remember is that this is a sentencing trial; Moussaoui had already pleaded guilty to conspiracy with the other 9/11 terrorists….so this setback doesn’t mean he is going anywhere soon. He still faces, at minimum, life without parole.

How serious is what Ms. Martin is accused of? Well, she apparently violated a rather standard court order so it’s very serious…although I don’t think it reaches Stephen Gillers’ hyperbole:

“"The evil here, the corruption of the system, is that through the intermediation of Ms. Martin, witnesses were able to change their testimony to corroborate other witnesses," said Stephen Gillers, an expert on legal ethics at New York University Law School. "You want the raw experiences of other witnesses, untainted and uninfluenced by the views of others." “

(When I read a Stephen Gillers’ quote, I am usually also reaching for the salt shaker. This is the same Stephen Gillers who flat out said that that one of Justice Alito’s new clerks couldn’t work on some potential cases because….Stephen Gillers didn’t think it was a good idea. Justice Alito and his law clerks.)

Please; the witnesses weren’t “able to change their testimony to corroborate other witnesses” because they weren’t able to testify.

"I cannot allow that kind of conduct to go without there being serious sanctions," Brinkema said as she struck the expected testimony and all of the evidence about aviation.” (emphasis added) Federal Witnesses Banned in 9/11 Trial

And there is nothing to suggest that the witnesses would have changed their testimony; after all it was one of the potential witnesses (Ms. Osmus) that first brought the communications to the prosecutors’ attention:

“Osmus and the four other senior FAA and TSA officials who testified yesterday said their communication with Martin would not have affected the testimony they would have given. Osmus's deputy, Claudio Manno, said he brushed aside Martin's e-mails "because I can only testify about what I know."

In my mind, however, there is a much more serious charge against Ms. Martin:

“Legal experts said prosecutors could also seek to charge Martin with more serious felony charges, such as lying to a federal officer. Evidence emerged at a hearing Tuesday that a prosecutor, David J. Novak, had sent a letter to Moussaoui's attorneys saying that witnesses they were seeking would not meet with them.

“Brinkema called the letter a "bald-faced lie." It was based on information from Martin, prosecutors said”.

More serious…and incredibly stupid because you could never figure that the lie wouldn’t be exposed when the witness actually testified.

Moussaoui was already in jail on September 11, 2001 so, despite the backdrop of 9/11, the death penalty has never been seen as an easy sell. Prosecution mishaps haven’t helped but I think the judge here went too far in removing all the aviation-related testimony and evidence. As Drudge would say…Developing.

Well, I'm glad the judge backed down on her order and is allowing other aviation witnesses and evidence in to court. I'm not sure what a big deal this is. To be honest, I was under the impression that prosecutors always prepped their witnesses and went over their testimony before they took the stand. Is this because it's only a sentencing trial?
Your first sentence hit the nail on the head.
Goose: this wasn't just about witness prep in general, the judge had issued a fairly standard order against witness familiarity with other witnesses' testimonies. That was the supposed context of Ms. Martin's emails. This would have been for any trial

That saiod the judges original remedy was over-reaching and she was right to make it less so.

Attila: thanks...
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