A federal judge ruled that the government may continue seeking the death penalty in the trial of Zacarias Moussaoui despite reports that several witnesses were improperly coached by a government lawyer.

Background Report

Discussion

GWEN IFILL: The government's bid to have Zacarias Moussaoui sentenced to death hit a stumbling block today after the presiding judge banned key witnesses from testifying. But Judge Leonie Brinkema, angered yesterday after discovering some witnesses may have been coached, allowed the death penalty phase of the trial to continue.

Judge Brinkema sent the jury home yesterday when she learned a lawyer working on the prosecution team contacted witnesses in the case. Carla Martin, an attorney for the Transportation Security Administration, sent e-mails to seven witnesses, even though the judge had forbidden such contact.

The disclosure caused Judge Brinkema to declare from the bench yesterday, "In all the years I've been on the bench, I've never seen such an egregious violation of the court's rule on witnesses." Relatives of 9/11 victims said the government's actions had harmed the case against Moussaoui.

ROSEMARY DILLARD: I'm concerned, because she's taking aviation out of it. Each of the weapons that were used on 9/11 were airplanes, and we're taking six people out of the trial automatically; they will not be included. And we all, we sit there, and we see one woman has made this entire case a laughingstock.

GWEN IFILL: Moussaoui, dubbed the 20th hijacker, is the only person to be charged in the United States in connection with the September 11th terrorist attacks. He's pled guilty to six counts of conspiracy.

Moussaoui was arrested on immigration charges shortly before 9/11 after arousing suspicion at a flight school in Minnesota. Prosecutors say Moussaoui withheld information after his arrest that would have allowed them to uncover the al-Qaida plot.

The trial has been a raucous one; Moussaoui has erupted into frequent outbursts, tried to fire his court-appointed lawyers, and argued that he should be able to interview other suspected terrorists. He also declared his loyalty to al-Qaida and Osama bin Laden.

GWEN IFILL: For more on today's court action, we're joined by Deborah Charles, who's covering the Moussaoui trial for the Reuters News Agency. She's outside the federal courthouse in Alexandria, Virginia. And by Andrew McBride, a former federal prosecutor for the eastern district of Virginia.

GWEN IFILL: Deborah Charles, you were in the courtroom today. Tell us, why did Judge Brinkema decide to ban those witnesses who were going to testify to the aviation part of the case?

DEBORAH CHARLES: Well, she said there was too much taint involved to the whole thing. She couldn't tell how much the witnesses could have possibly been coached, could have been affected by what Ms. Martin said in her e-mails.

And she was also concerned about the evidence. Ms. Martin was involved with almost every part of the aviation-related evidence, and she was concerned that that also could have possibly been slanted or not as complete as possible.

GWEN IFILL: You have seen those e-mails. What did she say to them?

DEBORAH CHARLES: She said things like -- what she did was she summarized -- she took excerpts from the opening statements of the government, and she criticized the government's opening statements, saying that it left a huge hole for the defense just to ram a truck into it, I think is what she said.

She said there's too much room for them to show that there were lapses that the FAA couldn't have solved the problems that -- there were too many lapses. And so she kind of coached them in these e-mails saying: You need to make sure you focus on this. You need to make sure you have them have you say this, and things kind of saying -- try to get this out in direct questioning rather than having it come out in cross-examination.

GWEN IFILL: So what did the government -- this is obviously a setback for the government prosecutors. What did they say about that today?

DEBORAH CHARLES: They didn't say much. I mean, they were just -- at first, at least, they were -- you know, they just listened to what she said. After court recessed, they had a telephone conference with the judge and got a delay in the trial, at least until Monday.

They're considering right now what it is they need to do, whether or not they will try and -- if they're going to try and appeal in some way or anything.

GWEN IFILL: Was there some possibility that the judge was simply going to throw this death penalty phase out and he was going to serve life in prison?

DEBORAH CHARLES: Yes, exactly. That's what the defense had asked for. They said that this was an unfair trial and that Moussaoui was not going to get -- his constitutional rights were being violated, so they were requesting complete dismissal of the death penalty portion of the trial, which is basically what this whole trial is about.

She said she wasn't going to do that, but she did move -- it's a pretty big step to exclude, not just the witnesses, but all aviation-related evidence.

GWEN IFILL: And, Deborah, up until yesterday, how had this part, this phase of the trial, been going?

DEBORAH CHARLES: You know, interesting. Right now, it's still the government phase, so we've heard testimony from FBI agents. There were a few areas where Ms. Martin, in fact, in her e-mail said that the government kind of slipped up in letting an FBI agent say something that they didn't want him to say. So I guess, in her mind, at least, it wasn't going so well for the government.

There were some witnesses from flight schools talking about what a bad pilot Moussaoui was, and that sort of thing helps the defense, as well. The defense is trying to prove that he was a bad pilot, he couldn't have ever carried out these hijackings anyway. So, you know, it was really early on in the trial. It's just one week.

GWEN IFILL: Andrew McBride, Judge Brinkema said today that there has never in the annals of criminal law ever been a case with this many significant problems; would you agree with that?

ANDREW MCBRIDE: Well, I'd like to make two points, Gwen, on that. First of all, Ms. Martin, the TSA lawyer, is not part of the prosecution team. She's a lawyer in the counsel's office at TSA.

The three Department of Justice prosecutors who are in front of Judge Brinkema are professionals. I know those gentlemen, and they're the ones who brought Ms. Martin's error to the attention of the court. So let's not -- this is not a case of intentional prosecutorial misconduct.

GWEN IFILL: Isn't that what they're supposed to do, though?

ANDREW MCBRIDE: And they did indeed do it. And I'm not sure -- but my second point is, I take it that Ms. Martin must not have been aware of the rule on witnesses. The rule on witnesses says that one witness should not hear the testimony of another, that we want witnesses to testify without understanding what the other witnesses have said so there's no cross-pollination, that they tell the truth, that they aren't coached by the attorneys, or that they don't tailor their testimony to the testimony of other witnesses.

Obviously, what Ms. Martin did violates that rule. No prosecutor or trial attorney worth their salt would ever do what Ms. Martin did. I have to assume she did it innocently, in the sense that, who would send this e-mail to seven witnesses, as I understand it, two of whom were government witnesses and five of whom were potential defense witnesses, if they understood anything about the rule against this kind of tainting of witness testimony?

GWEN IFILL: You have appeared before Judge Brinkema before.

ANDREW MCBRIDE: I have, indeed.

GWEN IFILL: Is she given to hyperbole? Yesterday, she was clearly not happy, today not happy. And she was using strong language to declare her displeasure.

ANDREW MCBRIDE: Had I been the trial judge in the case, I would be displeased, as well. I think the government having asked for the trial to be set back to Monday, Gwen, signals to us, I think, that the government will seek an emergency appeal, which is its right, in the Fourth Circuit Court of Appeals.

And I do think the government may argue that Judge Brinkema might have overreacted a little bit in excluding the whole aviation case based on this error by this TSA lawyer.

GWEN IFILL: I think for lay people we are surprised that lawyers are not allowed to talk to their own witnesses. Why not?

ANDREW MCBRIDE: Well, during the trial -- once the trial starts, it's an important principle to say that the witnesses will give statements of fact based on their memory, and that there would be a natural tendency if I were to go to a witness and say, "Well, Witness A testified this way, and the defense attorney cross-examined him about this," to tailor the testimony in a way positive to one side or the other.

You don't want the witnesses to know what the other witnesses have said or to know what the attorneys have cross-examined on, and that was the error here.

ANDREW MCBRIDE: In addition, evidently, Ms. Martin did something that was very improper. The defense wished to examine, prior to trial, some of these government officers who they wished to call. And Ms. Martin evidently said to Mr. Novak, the prosecutor: None of these people wish to talk to the defense.

Today, when they were examined by Judge Brinkema, they indicated they had never been approached about whether or not they would talk to the defense.

I would have to say overall it appears to me that Ms. Martin -- Judge Brinkema said, "You need a lawyer" today. Ms. Martin may be in a great deal of trouble, but I would emphasize that I don't think the Moussaoui prosecutors themselves are responsible for this particular glitch. And it looks to me like the government might appeal here.

GWEN IFILL: It should be said that Moussaoui, of course, is already found guilty. This is all about sentencing. So what is it about these witnesses that the government needs to establish the need for the death penalty?

ANDREW MCBRIDE: And this is why, Gwen, I think the government will appeal. These witnesses are central to the government's case that something would have been different if Moussaoui had told the truth.

The government's theory is that Moussaoui lied in August of 2001 in a way that set the FBI on the wrong course. The aviation witnesses are there to say, if we had been on the right course, we would have stopped the hijacking of one of those four planes, because we would have undertaken, under FAA procedure existing in September of 2001, procedures that would have stopped at least one of those four flights from being hijacked.

And that means Moussaoui is responsible for some of the deaths on 9/11. Without that aviation testimony, it's unclear the government can make that link.

GWEN IFILL: Deborah Charles, when the court comes back on Monday, what's supposed to happen next?

DEBORAH CHARLES: It's the cross-examination of the FBI agent who arrested Moussaoui, Harry Samit. And it was expected to be a pretty volatile cross-examination. The defense lawyer, Edward McMahon, had said he was ready to cross-examine him and ask kind of questions about what the FBI agent didn't get and what -- you know, did he really know that there were lies? And could he really have stopped 9/11 if he had gotten the right information from Moussaoui?

GWEN IFILL: Have you gotten any signs from what Andrew McBride is speculating on here tonight, that perhaps there may be an appeal in the offing?

DEBORAH CHARLES: Well, that's the impression we got from the courts. Both the court put out a statement and the Justice Department put out a statement. The court's statement said that the delay was while the prosecutors decide whether or not they're going to do some sort of appeal.

I mean, I would think -- it was hard to tell at that point. You know, when we left the courtroom, everyone was kind of shocked at what happened. I don't think people expected a decision so quickly. And it's a little hard to tell right away; obviously, they had a phone conversation later, so...

GWEN IFILL: Well, we'll see what happens next. Deborah Charles of Reuters, Andrew McBride, thank you both very much.

ANDREW MCBRIDE: Thank you, Gwen.

DEBORAH CHARLES: Thank you.