Patterico's Pontifications

3/14/2006

Moussaoui Penalty Trial Halted Due to Misconduct by Government Lawyer

Filed under: Terrorism — Patterico @ 7:25 am



Every American should be furious at Carla Martin, the government lawyer who has compromised the government’s bid to execute Zacarias Moussaoui:

The prosecution’s carefully laid strategy to secure the death penalty against confessed terrorist Zacarias Moussaoui neared collapse Monday when an incensed federal judge halted his sentencing trial and ordered a hearing to investigate apparent witness tampering by government officials.

U.S. District Judge Leonie M. Brinkema took under advisement a defense request to drop the death penalty from the case, which would leave life in prison as the only possible sentence.

Martin violated the first rule any litigator learns upon walking into a courtroom: follow the judge’s lawful orders.

Although some preparation of witnesses is common, Brinkema issued a special order Feb. 22 warning that in the Moussaoui case, witnesses must not be coached and should not be read or provided transcripts of opening statements or testimony of other witnesses.

The government notified the court Monday that Carla Martin, a senior TSA lawyer, had done just that by sending copies of court transcripts — as well as summaries of the testimony of FBI Supervisory Agent Michael Anticev, the government’s first witness in the sentencing phase — around to the seven witnesses.

“We really are left speechless, frankly,” prosecutor David J. Novak told the judge, conceding that Martin’s actions were “wholly improper” and could seriously hamper the government’s case.

It’s clear that the judge is taking this seriously:

“In all the years I have been on the bench,” Brinkema told a hushed and crowded courtroom, “I have never seen such an egregious violation.”

A judge for 12 years, she called a government lawyer’s attempt to shape the testimony of seven key witnesses a “significant error … affecting the constitutional rights of this defendant and, more importantly, the integrity of the criminal justice system in this country.”

Having made such a sweeping statement, the judge has committed herself to taking some fairly drastic action to remedy the harm caused by Martin.

However, taking death off the table entirely would be an overreaction. Martin should be brought before the court and severely sanctioned for her egregious violation. The court should consider whether it is necessary to strike the testimony of the witnesses who were improperly influenced — a remedy that would seriously harm the government’s case. But absent a showing that these measures are insufficient to cure the error, any remedy should end there.

49 Responses to “Moussaoui Penalty Trial Halted Due to Misconduct by Government Lawyer”

  1. If Carla Martin was unaware of the judge’s order, then blame lies with the prosecution who failed to get the word out to everybody and anybody who could possibly be affected.

    But if Carla Martin knew of the judge’s order banning the coaching of witnesses and did what she did anyway, she was simply fulfilling the prime directive for government functionaries to protect the interests of the home agency, in her case, the FAA.

    To such bureaucrats, protecting their own turf is the most important thing, far more important than such trivial matters as whether Moussaoui would receive the death penalty.

    steve sturm (e37e4c)

  2. Huh. You have the same take on it that Andy McCarthy has then.

    I’m no lawyer but this behavior strikes me as a fatal error – especially in a death penalty case. I’ll defer to your judgement – and I’m glad to see that McCarthy isn’t just being wacky, because some of his Plame/Fitz stuff has struck me as very odd.

    Dwilkers (a1687a)

  3. It seems that Martin has been fired. But she should still be hauled into the court and jailed for contempt, then disbarred. I’d also like to see her boss grilled by the judge…but I bet they’ll say it was a “lone gunman.” Inexcusable, really.

    Kevin Murphy (6a7945)

  4. Is it possible this lawyer is personally opposed to the death penalty and so knowingly threw a monkey wrench into the case in order to impose an outcome she wanted?

    Black Jack (d8da01)

  5. I agree with Black Jack. A lawyer doesn’t make this type of mistake, so the documents were passed around to suit her own purpose.
    I watched the news yesterday about the gruesome murder in NY and some of the high class female lawyers are already in love with the ‘suspected’ murderer and display it openly in every interview. Evidently they have a death wish. This could very well be the case with the so called government lawyer and the terrorists.

    scrapiron (71415b)

  6. The witnesses were expected to testify as to what steps might have been taken if Moussaoui had told the truth. If any element can be called the most critical to the government’s case for execution, this is it.

    Martin informed these witnesses what the theory of the case was, how to testify to the ultimate legal issues, and did it by way of a group email, as if it were a chat room.

    Any discipline against Martin will depend on whether she knowingly disregarded the order (or was somehow kept out of the loop by the prosecution – highly unlikely, as restrictions on coaching witnesses are a general principle, and the order was not secret anyway.

    As I understand it, none of the witnesses have yet testified. With all due recognition of the importance of this case, their testimony will taint an already tainted trial to the point where dismossal will be the only constitutional option.

    The government and the system are in a terrible position, and seemingly stand only to lose legitimacy either way.

    biwah (f5ca22)

  7. Any discipline against Martin will depend on whether she knowingly disregarded the order (or was somehow kept out of the loop by the prosecution – highly unlikely, as restrictions on coaching witnesses are a general principle, and the order was not secret anyway.

    I meant to point out that, by contrast, the issue of whether the case goes forward has nothing to do with Martin’s intent – just to the degree of prejudice the violations have against the defendant.

    There is little possible rehabilitation of the witnesses here. It illustrates how much worse the tainting of witnesses is compared to the tainting of a jury.

    biwah (f5ca22)

  8. Of course, biwah, it remains to be seen if the witnesses read the damn thing, or if they discarded it and/or notified the judge. It’s entirely possible that the clumsy attempt to taint the witnesses may have tainted them the other way. Which is probably what the judge is going to ask them outside the jury’s presence.

    Kevin Murphy (9982dd)

  9. I believe the prosecutor notified Judge Brinkema, an act she praised. It was not any of the witnesses.

    As to whether they read it, I guess the judge will find out. One of the three prosecution witnesses said it wouldn’t affect her testimony because “I know what I know,” implying that she had read it. Also, the prosecutor offered to reduce the number of government FAA witnesses and allow some defense FAA testimony without cross-examination. Seems that whether they read it is not really the issue anymore – rather, what is going to cost the government.

    biwah (f5ca22)

  10. Correction: I’m not sure whether Lynne Osmuss, the former head of the FAA who said “I know what I know”, was a prosecution or defense witness.

    biwah (f5ca22)

  11. I may be dancing on the edge of la-la land by saying this, but given the history of the WOT – Oil-for-food, Eason Jordan etc – shouldn’t blackmail, threats and bribes all be considered as possible motives for Martin’s actions?

    ras (f9de13)

  12. McCarthy has correctly torpedoed the notion that “dismissal is the only constitutional option.”

    eddie haskell (51058c)

  13. McCarthy simply makes the argument that it goes to the weight, not the admissibility of the witness’ testimony, i.e. let the jury sort it out.

    However, there are many issue not entrusted to the jury, and thus deemed inadmissible. I suppose McCarthy doesn’t think the Rules of Evidence are binding, since they aren’t written in the text of the Constitution.

    Maybe the witnesses will be given the chance to testify. Whether they are or not, it looks awful for the entire system. No less because it will look like deference is being paid to the government by letting them play fast and loose on a capital case. That perception is justified cannot be avoided if the trial goes on.

    biwah (f5ca22)

  14. Mr. Moussaoui has already been convicted, so it’s not like he’s going to go free because of this. He might only get life in prison? That still punishes him in the same way we punish the vast majority of murderers. Considering that Mr. Moussaoui was (supposedly) planning to be on one of the September 11th planes, giving his life for his miserable cause wasn’t something of which he was abnormally terrified.

    Wouldn’t a worse punishment for this man to be to simply rot in prison, to die of old age while his cause dies around him?

    That doesn’t make Miss Martin’s actions something of which I approve; Mr Novak did the right thing in informing the judge. Miss Martin should be fired (if she hasn’t already been dismissed.)

    Dana (3e4784)

  15. Dana’s point is important particularly because to proceed might enable the U.S. to execute someone in connection with 9/11 at a great cost to the legitimacy of the judicial process; whereas to stop now would get the government most of what it wants (life for Moussaoui) while also demostrating its adherence to principles of justice.

    biwah (f5ca22)

  16. According to MSN, the judge has allowed the government to continue with the death penalty proceeding.

    Dana (3e4784)

  17. …but without the tainted witnesses.

    The prosecution told the judge earlier that these witnesses’ expected testimony comprised about half the government’s case.

    Also, it appears that Martin had done more even monkeying around than previously reported.

    biwah (f5ca22)

  18. The evidence being excluded includes anything regarding aviation security prior to 9/11. I presume this encompasses any of the testimony that the FAA witnesses were going to give.

    biwah (f5ca22)

  19. Considering that Mr. Moussaoui was (supposedly) planning to be on one of the September 11th planes, giving his life for his miserable cause wasn’t something of which he was abnormally terrified.

    Not abnormally terrified, no, but his plan was not just to die for dying’s sake; it was to reap a huge reward from Allah for taking thousands of innocents down with him. Getting caught and then dying alone as a punishment will only get him 1/72 of a virgin, if that.

    Wouldn’t a worse punishment for this man to be to simply rot in prison, to die of old age while his cause dies around him?

    Of all the silly arguments I’ve heard against the death penalty (and yes, all arguments against the death penalty are silly), “death’s too good for them” has got to be the silliest. Suffice it to say that if there were an iota of truth to the P.C. notion that LWP is a more serious punishment than death, there wouldn’t be so many suspects plea bargaining down to LWP, or convicts appealing their death sentences in full knowledge that LWP is the best they can realistically hope for if they prevail. Can you name a single convict who appealed his life sentence seeking death instead?

    Xrlq (f52b4f)

  20. biwah – So McCarthy was right, huh?

    eddie haskell (51058c)

  21. X: Moussaoui sure isn’t your run-of-the-mill murderer so the standard analysis doesn’t (necessarily) apply in his case.

    steve sturm (d3e296)

  22. Nope eddie, McCarthy’s recommendation was for the testimony to be allowed and considered by the jury. But it is being excluded, and my understanding that none of the recipients of Martin’s emails will be permitted to testify.

    When I said dismissal was the only constitutional option, I meant exclusion of these witnesses, not outright dismissal. Obviously, excluded tainted witnesses avoids introducing any taint to the trial, so beyond that dismissal is unnecessary. Depending on how much the government is relying on this testimony, however, it may be tantamount to dismissal.

    biwah (f5ca22)

  23. #19. Xrlq. Timothy McVeigh is the most famous suicide by executioner. A forgotten one is “The Executioner’s Song” character from Utah who also chose death. Maybe he just wanted the glory of being the first execution in the country after reinstatement of the death penalty. It may not be exactly the point of your question but there are people who would rather die than go to prison. Perhaps we do not notice them as much because they choose to die in shootouts with the police taking as many as they can with them. So they never go to trial. The Branch-Davidians may qualify for that example.

    This Moussaoui has never sounded real to me. He reminds me of the Kamikaze pilot who flew 47 missions — he was willing, but never quite grasped the concept.

    nk (4cd0c2)

  24. Dana, I’m not so sure that we get bonus points for sparing Moussaoui’s life just to demonstrate our adherence to the rule of law. Capital punishment in this case would not only to demonstrate the value we place on the lives of the victims, but also to demonstrate the value we place on the civilized society we live in, without which the phrase “rule of law” is meaningless. Like McVeigh, Moussaoui’s objective was to destroy civilized society, not just kill the people who happened to be in the WTC. Let the process work, but anything short of capital punishment is going to look to our enemies like a “kick me” sign on our collective backside.

    TNugent (6128b4)

  25. This is an egregious error. Despite the fact that this was an important trial domestically, it was also an important message to send to the world. She cocked it up.

    Washington (3a69b1)

  26. Oh, I see, biwah – when you said dismissal, you didn’t mean dismissal, and when you said constitutional, you meant the rules of evidence. I guess you were tantamount to right all along.

    eddie haskell (210276)

  27. 1. The government’s theory is a crock all along. Moussaoui, supposedly a 9/11 co-conspirator, had a “duty” to tell the truth to the FBI, who then would have sprung into action and saved the day. Right. The government already had warnings about flight schools, Atta, and airborne attacks, and this loon would have “connected all of the dots” and led to immediate cockpit door reinforcement, increased scrutiny, etc. Certainly. George W. himself would have seen to it.

    2. How many times have we heard it — The state puts on an informant, who is granted favors for his “truthful testimony” — which is defined as exactly the testimony the prosecutors proffer, prepare, rehearse, and offer. Then once the conviction is secured and questions arise on appeal, the state argues that the bought and paid for testimony was not really that important, and that the “overwhelming” evidence still supports death or whatever. (See the Morales case, among hundreds of others.)

    3. Keep in mind the very different roles of the prosecutor and defense — the defense is to do anything and everything, within ethical limits, to provide a vociferous and strong representation of the interests of the defendant. The prosecution, on the other hand, is not ordered to win, but to do justice. Therefore, much as with the exclusionary rule, when there is prosecutorial misconduct, whatever the horrific consequences to justice in the instant case, it should be dismissed as a deterrent to malfeasance by the all-powerful state.

    nosh (d8da01)

  28. […] It looks like Judge Brinkema took my suggestion from this morning. (Or maybe she just happened to rule the way my post suggested. Whatever.) […]

    Patterico’s Pontifications » Government Can Pursue Death Penalty Against Moussaoui (421107)

  29. To all the lawyers who post here:
    … affecting the constitutional rights of this defendant and, more importantly, the integrity of the criminal justice system in this country.”
    Are we supposed to afford constitutional rights to non-citizens? If Osama bin Laden were being tried are we really going to afford him the same rights as a citizen?

    paul (464e99)

  30. Paul, 29. Yes. Persons have rights. Citizens have privileges and immunities. Broadly speaking, of course. Non-citizens do not have the right to vote or to hold public office but when it comes to due process they are equal with citizens. We will also have to provide OBL with a legal team if he cannot afford his own.

    nk (06f5d0)

  31. I guess the question has to be asked: Is it really a surprise that a lawyer on either side of a criminal matter would coach a witness? Even if there is a standing court order? I don’t think that is a surprise at all. The real stupidity here was that it was done in writing. Truth be told – there are a lot of government paid lizards doing prosecutions. They cheat a lot (not all mind you – but a large number). And due to shows like Law & Order, more and more of them are turning up in positions of authority. And their belief is to secure the conviction no matter what. The number of cases of prosecutorial misconduct keeps going up….

    Specter (466680)

  32. Seems to me this is the risk we take in treating terrorists as mere criminals; in fighting a war in the courtroom.
    It should never have happened this way, and I hope it never happens again. The idea of a Bin Laden in an American courtroom is more than repellent. It’s dangerous.
    For every terrorist defendant, there’s a Ramsey Clark, and a potential Carla Martin, not to mention unpredictable judges and the years it takes to prosecute, convict, and punish.

    organshoes (b905c2)

  33. eddie, I corrected myself – obviously dismissal is not necessary, no matter how bad the witnesses have been tampered with, if the witnesses haven’t testified yet. But they are being kept out.

    The government has had a tenuous case for the death penalty. It is very hard to see them overcoming this ruling to show that they would have acted on Moussaoui’s information, had he given it, in time to prevent the 9/11 attacks.

    Also, I did mean constitutional, and was poking a hole in McCarthy’s hackneyed argument that constitutional rights are illusory unless they are parsed out in the original text, never mind over two centuries of applying that text.

    Also, you are annoying.

    So McCarthy was right, huh?

    Now would you care to correct yourself?

    Specter: you may have a point, but I doubt it’s usually this egregious and coordinated as to multiple witnesses. Also, this is not prosecutorial misconduct, as evidenced by the fact that Martin was a TSA lawyer, and the prosecutor informed the judge of what had happened once he learned of it.

    biwah (f5ca22)

  34. And due to shows like Law & Order, more and more of them are turning up in positions of authority.

    ?

    Patterico (de0616)

  35. Specter:

    I prosecute, and I coach witnesses. Here’s the meat of the coaching:

    “Tell the truth. Even if it’s embarrassing, tell the truth.

    “Remember, you’re not prosecuting or defending Mr. Kidkill; I’m prosecuting Mr. Kidkill. Your job is solely as a witness, to tell the truth.

    “Answer only the question posed. You might want to add or explain your answers; avoid that.”

    There’s a little more to my spiel, but it starts and ends with, “Tell the truth.”

    Generally:

    Reading the excerpts of Martin’s e-mails does not give one confidence that the truth is her primary goal. If the media reports are correct (and I can’t find the original e-mails online to verify) I’d be calling her as a defense witness, were I a defense attorney.

    I suspect that the prosecutor is…. unhappy. Did Martin really expect that the prosecutor wouldn’t narc her out because of the expense to his case? Most people who become prosecutors understand that cheating hurts everyone, and that’s it’s just wrong besides.

    (I express no opinion here on whether Moussouai is a good death penalty candidate.)

    –JRM

    JRM (de6363)

  36. biwah – You took the position that “dismissal” was consitutionally mandated. McCarthy took the position that “dismissal” was not required by the Constitution, and that allowing cross-examination of the witnesses in question would be a sufficient corrective. The judge decided that “dismissal” was not required but it would be necessary to exclude the witnesses’ testimony.

    McCarthy was right about “dismissal,” wrong about the particular remedial measure.

    I agree with you that the death penalty aspect of the case was tenuous in the first place and that the judge’s exclusion of this testimony makes it more so. I wouldn’t be surprised, though, if the jurors don’t need testimony on the preventive steps that might have been taken. Despite their instructions, jurors often consider matters outside the evidence and the jurors in this case might very well make this connection on their own. The composition of the jury may be crucial here and, of course, an appeal would be possible based on the lack of record evidence.

    Also, you are annoying.

    eddie haskell (51058c)

  37. Organshoes – what is it about terrorism in particular that makes you think that a legal system which works for prosecuting other crimes will not work? ISTM that your argument could apply to any other type of crime with sufficiently corrosove effect; do you mean it to, or do you think terrorism is a distinct case?

    aphrael (e0cdc9)

  38. This seems like a truly FUBARed situation. If Mr. Moussaoui is sentenced to death, there will be immediate grounds for appeal of the sentence, and a perception that the death sentence was a railroad job because it was handed down even after prosecutorial misconduct; if the case proceeds with capital punishment still on the table, and Mr. Moussaoui is not sentenced to death, such will be blamed entirely on Carla Martin, regardless of the fact we could not know that he’d have been sentenced to death absent her foul up.

    Dana (3e4784)

  39. If the case proceeds with capital punishment still on the table, and Mr. Moussaoui is not sentenced to death, such will be blamed entirely on Carla Martin, regardless of the fact we could not know that he’d have been sentenced to death absent her foul up.

    I can understand why this outcome is far from ideal, but not your worry about Carla Martin getting more than her fair share of blame. Does anyone here think disbarment and public disgrace are out of line for her?

    biwah (f5ca22)

  40. Is there enough known about what Martin did to say whether she will be disbarred? I heard a report that she took the Fifth yesterday – obviously a bad sign – and I haven’t heard anyone suggest that she was unaware of the court’s prohibition, so it certainly looks dark for her, but whether she will be disbarred, as opposed to censured/suspended/otherwise disciplined, is unclear to me at this point.

    eddie haskell (51058c)

  41. via CBS:

    The e-mails included the prosecution’s opening statement as well as a summary of testimony from at least one witness who testified in court last week. As if that were not bad enough, Martin then proceeded to suggest to those witnesses how they might tailor their testimony. All of this violated the judge’s witness sequestration order as well as common sense.

    The hearing Tuesday made things only worse for the government. One witness told the judge that Martin had told him not to talk to defense attorneys. Two witnesses told Brinkema that they had viewed media coverage of the trial. Another mentioned that Martin had said the defense was trying to portray its client as a “cuckoo.”

    If it did not directly violate a judge’s order in a death case, it would be a matter for some lesser discipline. She was probably used to being anonymous and safely beholden to one client, far from any courtroom, let alone a capital criminal trial. Maybe those are grounds for letting her keep her license, but it’s hard to imagine.

    At least she didn’t deny it.

    biwah (f5ca22)

  42. IIRC, the order precluded sharing transcripts of testimony (and perhaps opening statements) with prospective witnesses. If so, some of the actions described in the CBS story clearly would be violations of the court’s order, some does not.
    And disbarment – as opposed to a two or three year suspension – might very well require more than Martin did here, despite its impact on the case.

    I think biwah may have hit on a likely explanation (NOT an excuse) for Martin’s behavior.

    eddie haskell (51058c)

  43. JRM,

    Good for you. Notice I did not say all prosecutors. But the number is growing – as you know the purpose of most courts is not to find justice but to clear the calendar….and anything is fine by some prosecutors just to do that. Sorry – I’ve seen it a lot.

    Specter (466680)

  44. disbarment – as opposed to a two or three year suspension – might very well require more than Martin did here

    She doesn’t seem to have told anyone to lie – being on the right side of that line helps.

    biwah (f5ca22)

  45. those darn lawyers

    Roscoe’s take is that nothing very serious happened, but (1) it pissed off the judge so she is exaggerating, (2) the defense is trying to profit from it so they are exaggerating, and (3) the prosecution wants to placate the judge so they are echoing …

    Doc Rampage (59ce3a)

  46. Here is the link for Martin’s emails and other related documents.

    Kenny (61d7a8)

  47. Blg Lizards has a new angle on Carla Martin’s possible motivations, and it ain’t opposition to the death penalty.

    http://biglizards.net/blog/archives/2006/03/moussaoui_case.html

    Black Jack (d8da01)


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