The trial of self-confessed al Qaeda conspirator Zacarias Moussaoui was recessed today by an angry federal judge who is considering a mistrial in the sentencing portion of the trial because of a major government error involving alleged coaching of witnesses.
A mistrial would mean that Moussaoui would not be eligible for the death penalty and he would receive life in prison.
A Transportation Security Administration lawyer allegedly sent transcripts of the opening statements and some trial testimony to potential government witnesses, apparently trying to coach them.
"This is the second significant error by the government affecting the constitutional rights of the defendant and the criminal justice system in this country in the context of a death case," U.S. District Judge Leonie Brinkema told lawyers in the case outside the presence of the jury.
Defense attorney Edward MacMahon moved to have the judge dismiss the death penalty as a possible outcome, saying "this is not going to be a fair trial." In the alternative, he said, at least she should excuse the coached government witnesses from the case. I guess that's what defense lawyers do, even if your client is an al Qaeda terrorist.
Federal Prosecutor David Novak replied that removing those witnesses would "exclude half the government's case." Novak said that the problem could be addressed in cross-examination by the defense.
Brinkema said she would need time to study what to do.
"In all the years I've been on the bench, I have never seen such an egregious violation of a rule on witnesses," she said.
It's hard to know where to draw the line on this one. Moussaoui, a French citizen, is the only person charged in the United States with the 9/11 attacks. He pleaded guilty in April to conspiring with al Qaeda, and also says he was training for a possible future attack.
To say he's not getting a fair trial after already confessing to being involved is really pushing the envelope, even for a Leftist Clinton appointee like Brinkema.
But as much as I hate to admit it, she may be right on this one.
Even prosecutor Novak admitted that the witness coaching was "horrendously wrong."
It was, and it's yet another screwup by the Bush Justice Department in prosecuting Islamic terrorists.
Before the trial was recessed by Brinkema, the jury was scheduled to hear from the FBI agent who arrested Moussaoui — perhaps the key witness in the trial.
Special Agent Harry Samit's testimony is equally important to prosecutors and the defense at Moussaoui's sentencing trial. Samit has already testified in the trial for the prosecution was scheduled for cross-examination.
Prosecutors are taking the position that Samit and the FBI would have foiled the Sept. 11 attacks had Moussaoui confessed his membership in the al Qaeda terror network and his plans to hijack an airplane after he was arrested on Aug. 16, 2001, and interrogated by Samit.
To obtain the death penalty, prosecutors must first prove that Moussaoui's actions — specifically, his lies- were directly responsible for at least one death on Sept. 11.
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