Thu, Mar 16, 2006 - Page 7 News List

Moussaoui judge bars testimony

NY TIMES NEWS SERVICE , WASHINGTON

A federal judge dealt a serious, perhaps crippling, blow on Tuesday to the government's effort to execute Zacarias Moussaoui for the deaths that occurred in the terrorist attacks of Sept. 11, 2001.

The judge, Leonie Brinkema, ruled that because of three major instances of misbehavior by government lawyers in the trial, she was barring prosecutors from using any testimony or evidence from a handful of government aviation officials.

The officials were to provide a pillar of the Justice Department's argument as to why Moussaoui deserved to die: That had he told investigators when he was arrested three weeks before the attacks on immigration violations about al-Qaeda's plans to fly planes into buildings, the Federal Aviation Administration would have put in place security measures that could have prevented the attacks.

Prosecutors seemed dispirited by the ruling and indicated that they might seek an immediate review before a federal appeals court in Richmond, Virginia. Brinkema granted their request to postpone the trial until at least Monday until they decide what to do.

Brinkema said the prosecution of Moussaoui was "too riddled with errors" to proceed without some sanction against the government.

She directed her wrath most strongly against Carla Martin, a lawyer for the Transportation Security Administration, who was assisting prosecutors in arranging for the testimony of aviation security officials. When Brinkema learned on Monday that Martin had coached seven witnesses on how to testify and respond during cross-examination, she called it the most striking example of witness tampering by a lawyer she has experienced in her years on the bench.

On Tuesday, Brinkema's anger grew as she learned of another problem apparently created by Martin.

During an extraordinary special hearing in the middle of the trial to determine if the witnesses were "tainted" by the coaching, Brinkema said it became apparent that Martin had violated Moussaoui's constitutional rights to a fair trial by telling prosecutors that four government officials had refused requests by defense lawyers to speak with them.

"That was a bald-faced lie," Brinkema declared after some of the witnesses testified that they had not said that to Martin.

The third misstep cited by the judge was a question by a prosecutor in front of the jury last Thursday that she ruled improper. But Brinkema said the question by David Novak, a prosecutor, was not significant enough by itself to order any sanctions on the government.

"A trial, particularly a death penalty case, simply cannot go forward with this many errors," Brinkema said.

Martin appeared briefly on Tuesday in court after being hurriedly summoned the evening before by the judge.

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