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Slate's Jurisprudence: Moussaoui Trial Under Cloud

ALEX CHADWICK, host:

The effort to sentence confessed terrorist Zacarias Moussaoui to death is a waste of time. That's not our assessment. It comes from the prosecutor who's been seeking the death penalty. He said that in a conference call with Federal Judge Leonie Brinkema yesterday, after she ruled that key prosecution witnesses could not testify.

A transcript of the call was released today. Dahlia Lithwick is following the trial for the online magazine, Slate, and for DAY TO DAY. Dahlia, why does the Assistant U.S. Attorney Rob Spencer now say the penalty trial is a waste of time? And is he right?

Ms. DAHLIA LITHWICK (Legal Analyst, Slate): I think he is right. He's saying that these seven witnesses, who were tainted by misconduct on the part of the government, were a key component of this case. They would have proven that the government's contention that the FAA, if they had known about this plot against the World Trade Center and other government buildings, would have done things differently--that airport security would have been beefed up, that they would have banned short knives, in effect, that 9/11 would not have happened if Moussaoui had come forward.

Without that testimony, without the testimony about what airport security would have been like, and how it would have been different, there's really no way for them to prove up their case.

CHADWICK: Well, is there some opportunity for the government to appeal the ruling in Judge Brinkema's case? At her level, that is?

Ms. LITHWICK: Well, that's what they were talking about yesterday in that teleconference. And it seems like there's real disagreement among everybody as to whether or not the next step is an appeal.

The defense attorney, Ed McMahon, claimed that they can't be appealed now, because the trial's already started. It's underway. The prosecutor seemed to say in the conference that, well, we don't exactly want to appeal. What we want to do is ask the judge to reconsider this decision before we even talk about an appeal.

It seems that the judge herself was not quite clear on when and where an appeal to a higher court comes in. So, I think that's the confusion that they need to sort out before they resume again next Monday.

CHADWICK: Well, in addition to the problem with coached witnesses that Judge Brinkema had, was so upset about earlier in the week, she had heard evidence of other misconduct, too. What about that?

Ms. LITHWICK: That's right. The wheels really came off yesterday when it turned out that Carla Martin, this government attorney, not directly involved in the case, but responsible, sort of--a liaison to the FAA witnesses--did all sorts of really shocking things, including falsely telling the defense that two possible witnesses wouldn't speak to them, when in fact she'd never even talked to them-falsely, not telling the witnesses that she was responsible for that they weren't supposed to follow the trial.

She didn't tell them not to read the papers. She didn't tell them of Judge Brinkema's order. And then, as we know now, emailing them transcripts, portions of the trial, with her own opinions on what they needed to do to change their testimony to be more credible, and to essentially make sure that Moussaoui got the death penalty.

So, it's quite clear, and I think this is what Brinkema found yesterday, that she really had very, very much colored and shaped the kind of testimony that they might give.

CHADWICK: I read a quote, I think this was in an AP story, that Judge Brinkema had said this was, perhaps, the worst criminal case she had ever seen brought, the worst prosecutorial case she'd...in the history of criminal law. That's quite a statement.

Ms. LITHWICK: Well, she was furious. I don't think there's any understating how angry she is. And she, in fact, is threatening sanctions for this lawyer, Carla Martin. She really does feel, I think, that this kind of tainting of witnesses violates not only, you know, laws about procedure, but also just cardinal, basic, you know, elementary first-year law student knowledge of what it is that you do not do to your witnesses before trial.

I mean, this is just not a mistake you see very often.

CHADWICK: How do you explain something like that?

Ms. LITHWICK: It's hard to explain. I mean, really, that's the question right now. Everyone is trying to figure out if Martin just was out of control. She was apparently frantically emailing these witnesses all the time. If she just had some, you know, zealous agenda of her own to promote, or if she just completely lost, you know, touch with what the ethics rules provide, it's not clear.

And, you know, the fact that she's not speaking to the judge, she's unwilling to testify, makes it harder to figure out what was going on in her head.

CHADWICK: Opinion and analysis from Dahlia Lithwick. She covers the courts for the online magazine, Slate, and for DAY TO DAY. Dahlia, thank you.

Ms. LITHWICK: Always a pleasure, Alex. Transcript provided by NPR, Copyright NPR.

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