U.S. Tries to Salvage Unraveling 9/11 Trial
All week long, government lawyer Carla J. Martin badgered them. She sent them 100-plus-page court transcripts. She harried them with e-mails criticizing prosecutors and fretting about the government’s image. She called them at home.
By Friday, Lynne A. Osmus had had enough. As a top security official at the Federal Aviation Administration -- and soon to be a key prosecution witness in the death penalty trial of admitted terrorist Zacarias Moussaoui -- she did not like being used to further the lawyer’s interest in making the FAA look good at the expense of telling the truth in a capital murder case.
“I didn’t want to have secret discussions with her,” she said.
Osmus showed the e-mails to prosecutors, to dramatic effect.
On Monday, the allegations of government witness tampering led the judge to postpone the trial. On Tuesday, the judge barred all testimony and evidence dealing with aviation security -- the heart of the government’s case.
On Wednesday, prosecutors asked U.S. District Judge Leonie M. Brinkema to reconsider her ruling. Transcripts of a conference call showed prosecutors told the judge that otherwise, they would have to abandon their quest to see Moussaoui executed.
“We don’t know whether it’s worth us proceeding at all, candidly, under the ruling you made,” Assistant U.S. Atty. Robert A. Spencer, the prosecution team leader, told the judge. “Without some relief, frankly, I think that there’s no point for us to go forward.”
It would be a devastating defeat in a showcase trial that has been in the making since Sept. 11, 2001. The Moussaoui case has lurched chaotically along -- with Olympian battles over the death penalty, the use of testimony from secret captives in the war on terrorism and the introduction of highly classified government material -- while the emotional defendant made repeated outbursts in court.
Its most bizarre moment came in April, when Moussaoui, a 37-year-old French citizen of Moroccan descent, unexpectedly pleaded guilty to capital murder. He said he was part of the Sept. 11 conspiracy, and that his mission was to fly a plane into the White House.
The government was determined to secure the death penalty in what is the only criminal case on U.S. soil to have emerged from the Sept. 11 attacks. Although Moussaoui was in jail the day hijackers flew four airplanes into the World Trade Center towers, the Pentagon and a field in Pennsylvania, killing more than 3,000 people, prosecutors advanced the theory that had he tipped off FBI agents, the government would have prevented the carnage.
That was the issue facing jurors when testimony began last week in Moussaoui’s sentencing trial, the culmination of a years-long, government-wide effort. Scores of government agents and attorneys had interviewed thousands of witnesses and pored over millions of documents, prosecutors recalled Wednesday in pleading with the judge to reverse herself.
One of those lawyers was Martin.
“In this sea of government attorneys and agents who have assiduously played by the rules, Ms. Martin stands as the lone miscreant,” the prosecutors wrote.
Martin, 51, a onetime airline attendant who found a second career as a lawyer, had worked for the FAA since the early 1990s. Her first big case was the Lockerbie trial, in which the families of the victims in the Libyan terrorist explosion aboard Pan Am Flight 103 sued the airline for negligence.
Her job then was to protect government secrets -- information about airline security -- from entering the trial’s public record. By all accounts, she did her job zealously.
“Her role was to make sure names, dates and places that would be dangerous if publicized were kept out of view,” said James P. Kreindler, a New York lawyer who represented families in the case. “For 13 weeks, she was in the courtroom every day. Every so often she would ask the judge to please clear the courtroom.”
Moving from the FAA to the newly formed Transportation Security Administration, Martin did civil work and had little or no trial experience, former colleagues said.
“She spent over a decade fiercely protecting from disclosure sensitive security information,” said one former co-worker who spoke on condition of anonymity because, he said, he did not want to publicly criticize Martin. “That’s her niche, to represent her agency, to shield their classified information. She served the niche well, but often at the expense of collegiality and professionalism.”
In the Moussaoui case, Kreindler said, Martin’s role “was as a traffic cop scheduling appearances. She’s not a trial lawyer,” he said. “Her role was to get people there at the right time.”
In February, Brinkema issued an order mandating that witnesses were not to follow trial proceedings in the press or read trial transcripts before being called to testify. Martin was there when the order was discussed in court, the judge and prosecutors have said; it also was posted on the court’s website.
For four days last week, Monday through Thursday, prosecutors slowly began to roll out their case. FBI agents described Moussaoui’s arrest and laid the groundwork for the trial’s next phase. They would have TSA and FAA officials tell the jury that had Moussaoui cooperated with the FBI, the government would have prevented the attacks.
But as the trial unfolded, Martin was -- without prosecutors’ knowledge -- sowing the seeds of a monumental legal mess.
Osmus had put together a PowerPoint display for prosecutors. It was to show the jury various options the FAA would have had in the late summer of 2001 to try to stop an airplane hijacking. The measures included beefing up airport security, hunting for small knives and box-cutters carried by passengers, and posting suspected terrorists’ names on watch lists.
Prosecutors in their opening statement gave the impression that the FAA would have barred the hijackers from boarding the aircraft.
“We would have prevented the terrorists from getting on the plane and getting on the plane with the weapons they used to turn those aircraft into weapons to kill Americans,” Spencer told the jurors. “It would have been a straightforward effort to keep those hijackers and to keep anyone with a knife or a box-cutter off a plane.”
According to Osmus, Martin was alarmed at that assertion. The day after the opening statement, Martin downloaded the transcript and sent it around to Osmus and half a dozen others planning to testify.
Martin knew there was no way the FAA could guarantee 100% failsafe security and, in hindsight, she probably was right, the witnesses have said. But, they said, she seemed bent on shaping their testimony to reflect that.
In one e-mail, Martin highlighted portions of the opening statement that she disagreed with, calling their attention to what she would have told the jury. The transcript was 129 pages. “She asked us to [read] it, and I didn’t know there was any reason not to do it, so I did as she asked,” Osmus said.
Martin warned Osmus to be careful under cross-examination, telling her the defense “could drive a truck” through the prosecutor’s opening remarks. Martin also told her that she had lawyer friends with United and American airlines who were troubled by the prosecution’s statement.
Like the other witnesses, Osmus had no idea about the judge’s rule against witness tampering. But she did not feel comfortable about all the coaching.
“I considered talking to Carla about it,” Osmus said. “I decided not to ... because I assumed since she was an attorney working on this case, she knew what the rules were.”
Claudio Manno, the FAA’s deputy assistant administrator for security and Osmus’ assistant, also was sent the transcript. He skimmed about 70 pages because Martin told him to read it. But Manno, feeling under siege, turned to an FAA attorney for advice and tried to avoid Martin over at the TSA.
“She was really taking up a lot of the time that we needed basically to do our everyday job,” he said.
Still the Martin e-mails kept coming. Manno said she was briefing him on other subjects that might come up in his testimony -- such as how the FAA responded to earlier plots to blow up planes over the Pacific and to dive bomb an aircraft into CIA headquarters.
“I don’t know what Ms. Martin was thinking.... Whether she was trying to prepare me or what she was doing, I can’t say.”
Martin had Matthew Kormann, a TSA liaison officer, search for documents and review them for their classified status. It appeared she was looking for material to back up how she believed the FAA would have responded had the agency known the Sept. 11 attacks were coming.
Kormann said he gathered the material, some still classified, and dropped it off for Martin at TSA headquarters. In meetings last week, he said, she updated him on how the trial was going. He said she also advised him that he had been listed as a defense witness, and instructed him not to cooperate with the defense.
And then on Saturday, the day after Osmus alerted prosecutors to Martin’s behavior, Kormann’s phone rang at home. Martin was frantic. He said she told him to forget everything they had discussed and cited the judge’s ruling on witnesses.
“That was the first time I heard that,” he said.
Martin has not spoken with reporters, and her attorney declined to comment. She faces possible civil or criminal contempt charges, and was expected to appear before Brinkema this week.
Prosecutors said in court papers Wednesday that her behavior was “aberrant and apparently criminal.”
Trial lawyers, said Kreindler, would know how to prep witnesses without shaping their testimony, would know where the line was between preparing witnesses and coaching them.
“It’s second nature to trial lawyers not to interfere with the substance of a witness’ testimony,” Kreindler said.
He speculated that Martin might have thought she was protecting the airlines, something she has done all her career.
“She’s a nice person, I’ve known her for 17 years, through Pam Am 103 and 9/11 and at aviation conferences. The unfortunate thing is what she did,” Kreindler said.