Judge Curbs Terror Trial

A federal judge all but gutted the government’s death penalty case against admitted terrorist Zacarias Moussaoui on Tuesday by ruling that prosecutors could not present any testimony or evidence from aviation officials to show that the Sept. 11 attacks could have been stopped had Moussaoui cooperated with the FBI.

U.S. District Judge Leonie M. Brinkema stopped short of granting a defense request that the death penalty be dropped as a possible punishment for the 37-year-old Frenchman. But she warned that allegations of government witness tampering had shaken her confidence that Moussaoui could receive a fair trial.

“I don’t think in the annals of criminal law that there has ever been a case with this many significant problems,” Brinkema said.

Prosecutors formally objected to her ruling, and the judge later recessed the trial until Monday to give the government time to consider an emergency appeal before the U.S. 4th Circuit Court of Appeals in Richmond, Va.

That court is considered conservative and generally supportive of law enforcement in criminal cases.

Moussaoui pleaded guilty last year to capital murder for his role in the Sept. 11 conspiracy. The trial that began last week is to determine whether he should be sentenced to die or spend the rest of his life in prison.

Prosecutors argue that by failing to tell FBI agents about the Sept. 11 plot when he was arrested in mid-August 2001 in Minnesota, Moussaoui deprived the government of the chance to boost aviation security and to try to track down the would-be hijackers and foil the terrorist attacks.

With adequate warning, prosecutors say, airport security screeners would have restricted passengers from bringing small knives and box cutters aboard planes. Box cutters were the main weapons used against passengers and crews on the four hijacked planes.

Without testimony or evidence from aviation officials, the government would be hard-pressed to show the relevance of Moussaoui’s arrest to the overall Sept. 11 plot. Federal Aviation Administration witnesses constituted about half of the government’s case, prosecutors said.

The official at the center of the furor is Carla J. Martin, who until last weekend was a senior Transportation Security Administration lawyer.

At a hearing before the judge Tuesday, half a dozen prospective FAA witnesses described how Martin repeatedly violated the judge’s written order against shaping witness testimony or allowing them to see transcripts of trial sessions. They said she sent them copies of the prosecution’s opening statement and pointed out errors that she thought made the FAA look less than diligent in the days before the Sept. 11 attacks.

They said she advised some of them how to testify and what to say, told one that he should not agree to be a witness for the defense despite his subpoena to do so, and apprised others that she had a copy of the government’s exhibit book and did not think the case was going well for the prosecution.

Martin was called as the first witness Tuesday. She took the stand briefly as the judge warned her that she faced civil and criminal punishment for her actions. Martin said she “very much wanted” to testify but had not arranged for a lawyer. Her appearance was postponed until later this week.

But the other witnesses collectively described Martin as a woman who was overzealous in her work, took up large amounts of their time and often seemed preoccupied with how the FAA would look in the public eye after the witnesses testified.

The witnesses said Martin never told them about the judge’s Feb. 22 order that witnesses were forbidden from reviewing trial transcripts or watching news media accounts of the trial. The witnesses said last weekend, after prosecutors learned what she had done, Martin anxiously called them at home and urged them to ignore the transcripts and any media reports about the case.

But the witnesses said they did not believe Martin’s actions would have had any effect on how they would have testified in the trial.

Lynne A. Osmus, the FAA’s assistant administrator for security and hazardous materials, said Martin last week e-mailed her a transcript of the prosecution’s opening statement, and that Martin told her the statement was not “as accurate as she would have wanted them.” Osmus said Martin also told her she was concerned that Moussaoui’s defense lawyers “could exploit some of those comments” by prosecutors.

Under cross-examination, Osmus said she believed Martin was working with prosecutors “to help put the case together,” and that “I assumed because she was an attorney in this case she knew what the rules were.”

Osmus said she agreed with some of Martin’s objections to the prosecution’s opening statement. For instance, she said that in the days before the Sept. 11 attacks, the FAA was not 100% capable of discovering short knives or box cutters that passengers might attempt to bring on airplanes in carry-on bags, as happened on Sept. 11.

Osmus’ assistant at the FAA, Claudio Manno, testified that Martin “sometimes had a tendency to go off on tangents that were taking up a lot of time.”

Manno insisted he was not swayed by Martin’s actions.

“I can only testify to the facts as I know them, and that is it,” he said. But he acknowledged that he had been reading and viewing media accounts of the trial all last week. “I had no idea we couldn’t do that,” he said.

Asked to explain Martin’s behavior, he said: “I had no idea what was going through Ms. Martin’s mind.”

Patrick McDonnell, a retired FAA director of intelligence, said Martin phoned him at home over the weekend, anxiously citing the judge’s order and urging him to ignore her earlier e-mails and to not read the transcripts or read or watch news accounts of the trial. By then, he said, it was too late.

“We have CNN and the news networks on,” McDonnell said. “It’s hard not to.”

Matthew Kormann, a TSA intelligence liaison officer, said Martin had instructed him not to obey a subpoena by the defense or agree to be one of its witnesses. He said he then told the defense he would not testify during its side of the case, even as a “hostile witness.”

After the FAA witnesses described their dealings with Martin, defense lawyer Edward B. MacMahon Jr. urged the judge to strike the death penalty from the case and sentence Moussaoui to life in prison with no parole.

“This is Mr. Moussaoui’s trial and it needs to be fair from a constitutional standpoint,” MacMahon said. “And it just flat-out isn’t.” He said neither side should have a monopoly on calling witnesses, and that when Martin instructed some not to cooperate with the defense, “it was a clear due process violation.”

MacMahon also cited e-mail replies that Osmus made to Martin, especially one that implied she agreed to have her testimony shaped by Martin. “I agree,” Osmus e-mailed Martin last week. “I need to be careful in what I say.”

David Raskin, an assistant U.S. attorney and part of the three-man prosecution team, said the FAA witnesses were independent-minded and not affected by Martin’s conduct.

“Ms. Martin simply was a little too aggressive in involving herself in this case,” Raskin said. He added that the damage done was minimal, and that “these witnesses were rock-solid. They weren’t affected.”

But the judge said she could not know how badly the witnesses were tainted, and that her only alternative was to ban any aviation-related testimony or evidence from the trial.