The sentencing trial of terrorist Zacarias Moussaoui appeared to be back on track Friday, albeit with a crippled prosecution, after the judge decided to allow the government to present aviation security witnesses who had not been coached.
Prosecutors indicated that they would use a single witness in place of several who were improperly influenced by government lawyer Carla J. Martin, but called it an “imperfect” solution.
When the trial resumes before the jury on Monday morning, the government will be working from a marked disadvantage, with much of the central part of its case stricken from the trial.
Although she did agree to allow some aviation testimony, U.S. District Judge Leonie M. Brinkema refused to reconsider her ruling banning testimony by the tainted witnesses. She also added another restriction Friday: Any new witness may only testify that aviation officials “could” have prevented the Sept. 11 terrorist attacks had Moussaoui cooperated with the FBI. She said they would not be allowed to back the prosecution’s contention that the Al Qaeda hijackers “would” have been stopped at the airport.
This week, prosecutors said they would have had to abandon efforts to secure the death penalty against the 37-year-old French terrorist if they were not allowed to put on some aviation testimony.
In their opening statements March 6, prosecutors told the jury they would prove that security officials would have stopped the hijackers at the airports if Moussaoui had helped them after his arrest in August 2001.
Moussaoui pleaded guilty last year to plotting with the Sept. 11 hijackers. Jurors now are being asked to decide whether he should be sentenced to death or to life in prison. He was in jail when the attacks occurred, but the government contends he was responsible for the loss of lives because he failed to alert the FBI to the plot.
The case came near to collapse Monday when the judge learned that Martin, a 15-year government attorney working for the Transportation Security Administration, had violated the court’s order against sharing trial transcripts with witnesses and trying to shape their testimony.
Brinkema ordered all aviation witnesses and evidence stricken from the trial. Prosecutors asked her to reconsider, saying that they needed to put some aviation testimony before the jury.
The sanction would leave prosecutors “with no way to show what the FBI could have done with information it had obtained about the hijackers. More important ... the jury and the public will see only half the picture of what could have happened had the defendant told the truth,” the government said.
Prosecutors proposed alternatives to an outright ban on aviation testimony and evidence, which the judge agreed to Friday. But she warned that the new witnesses may not testify as to what the government would have done with information from Moussaoui, “as such testimony would be unduly speculative and misleading to the jury.”
The government’s new testimony and evidence will center on a “no transport” security directive, commonly called a no-fly list, that prosecutors said security officials would have put in place if they believed a Sept. 11-like attack was imminent.
“This evidence is simple, straightforward, and entirely uncontroversial, consisting mainly of FAA security directives issued over the years,” the prosecutors said. “We would call one witness to explain what they are and how they are used to keep suspected terrorists from boarding commercial aircraft.”
That, they said, “will allow us to present our complete theory of the case, albeit in imperfect form. We can then carry out our arguments from the FBI through to the FAA no-transport directive and present to the jury some semblance of what really could have happened had the defendant told the truth upon arrest.”
The prosecution described the new witness as someone who was “easily free of the specter of taint caused by Martin.”
Moussaoui’s defense attorneys had urged the judge to throw out the death penalty altogether. They told the judge that allowing new, untainted witnesses would be unfair to the defense because Moussaoui’s lawyers would not have enough time to investigate their claims and prepare to cross-examine them.
The judge ordered the government to give the defense the name of any new witnesses and the nature of their testimony at least three days before they would be called to testify.
Martin awaits a hearing on possible civil or criminal contempt charges.