Judge in Moussaoui Trial Faces a Delicate Task

With the sentencing trial for Zacarias Moussaoui stumbling forward again, lawyers for the two sides were sharply at odds Saturday over when a government attorney would testify about why she tried to influence witnesses.

The coaching efforts by Carla J. Martin nearly shattered the prosecution’s effort to have Moussaoui receive the death penalty for his role in the Sept. 11 terrorist attacks.

Defense lawyers want Martin on the stand as soon as Monday in the trial over whether Moussaoui, 37, should be executed or sentenced to life in prison.

Prosecutors want to delay Martin’s appearance until the middle of the week and have her testify only if she agrees to answer questions about her conduct and not invoke the 5th Amendment against self-incrimination.

“We see no reason” to have Martin take the stand “simply to have [her] invoke her rights,” prosecutor Robert A. Spencer said in court papers.

In the middle of the dispute is Judge Leonie M. Brinkema.

Clearly irked by the revelations about Martin early last week, Brinkema has made no secret of her view that the lawyer with the Transportation Security Administration may end up with criminal or civil sanctions for attempting to coach several witnesses.

But Brinkema also is trying to keep together a jury that has been left in the dark over the developments in the case -- the only one to be tried in the U.S. that stems from the 2001 attacks.

Moussaoui pleaded guilty last year to plotting with the hijackers. The government contends he should be put to death because he failed to alert the FBI to the plot, which resulted in the deaths of almost 3,000 people.

“I’m fully aware of how important it is for this matter to become resolved,” the judge told the prosecution and defense teams in a teleconference session late Friday. “I’m fully aware of the huge resources that have been expended on this case, the fact that we summoned 850 jurors, that we have an excellent jury of 17, and I agree that it would be unfortunate if this case could not go forward

One week into the trial, Brinkema abruptly stopped it Monday when word surfaced that Martin had attempted to influence witnesses from the transportation agency and the Federal Aviation Administration. Martin briefly appeared in court on Tuesday but declined to testify and was excused until she could find legal representation.

Her newly hired lawyer, Roscoe C. Howard Jr., has since said she was eager to testify but needed some time to prepare.

“She is entitled to a fair opportunity to prepare and present her side and a fair judgment of her intentions, her conduct and the conduct of others,” Howard said.

Brinkema first banned from the trial all testimony and evidence about aviation security because of Martin’s action. But the judge scaled back her ruling Friday, allowing prosecutors to present one or two witnesses on the issue who were not “tainted” by Martin.

For prosecutors, that decision drew new breath into their case for the death penalty for Moussaoui.

They had told jurors they would prove that, had the French citizen cooperated with the FBI upon his arrest on an immigration violation in August 2001, the government would have tightened airport security across the country. Those measures, prosecutors said, could have prevented hijackers from making it onto the airplanes used in the Sept. 11 attacks.

Defense lawyer Edward B. MacMahon Jr. said in court papers that he wanted Martin on the stand after he finished cross-examining FBI Special Agent Harry Samit on Monday morning, which is where the trial left off when it was postponed.

He said she should be the next witness before the prosecution brought in any “untainted” witnesses on aviation security because her testimony would provide “critical information” about the nature of the witness-tampering effort.