Witness Coaching Halts Moussaoui Sentencing Trial

Eddie Brecken

Eddie Brecken's sister, Lucy Fishman, died in the attacks on the World Trade Center on Sept. 11, 2001. He says he would be devastated if Moussaoui gets life without parole because of a prosecution error. Raul Moreno, NPR hide caption

itoggle caption Raul Moreno, NPR

The judge in the Zacarias Moussaoui sentencing trial has halted testimony after being informed that a government lawyer shared trial testimony with upcoming witnesses, in violation of court rules. Brinkema calls the action a breach of the defendant's constitutional rights, and is considering what sanction against the government is appropriate.

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RENEE MONTAGNE, host:

This is MORNING EDITION from NPR News. I'm Renee Montagne.

Government prosecutors are preparing arguments to try to salvage their case against Zaccarias Moussaoui. Prosecutors suffered a major blow yesterday when they disclosed that a government attorney had been coaching witnesses and e- mailing them trial transcripts against the judge's orders. That is likely to bring significant penalties against the prosecution, if not end all together their efforts to have the al-Qaida conspirator executed.

NPR's Laura Sullivan reports.

LAURA SULLIVAN reporting:

The government has tried for four and half years to bring Moussaoui before a jury. Through it all, prosecutors vowed they could convince a jury to execute him. But after only four days of testimony, the government's case has almost imploded, twice.

First, prosecutors asked a witness a question on Thursday that Judge Leoni Brinkema warned may have violated Moussaoui's constitutional rights. Now the government faces charges that a lawyer it was working with violated the judge's orders and coached seven witnesses from the Federal Aviation Administration. Prosecutors described the FAA witnesses as half their case.

Professor JONATHAN TURLEY (National Security Lawyer; Law Professor, George Washington University): Even before this week, this case had become a total train wreck.

SULLIVAN: Jonathan Turley is a national security lawyer and law professor at George Washington University.

Professor TURLEY: The violation last week might have been enough to jeopardize whatever came out of these hearings in the first place. Then the government commits and egregious violation in terms of prepping these witnesses. At some point, the boat takes on so much water that you gotta abandon ship.

SULLIVAN: That would be a huge loss for the government. For the Justice Department, this case has always been about the death penalty. Moussaoui's guilty plea already assures he will receive life without parole. Judge Brinkema raised the possibility yesterday the government's efforts may have been a waste. She angrily warned the prosecution, with this amount of mess in the record, it is very difficult for this case to go forward.

Brinkema said she was concerned not only that the government's lawyer e-mailed the witnesses transcripts and commentary, but that she also copied all the witnesses together, as if to get them to collude with each other. In one e- mail, the lawyer warns a witness, quote, "The defense will exploit the fact that the FAA was not clued in to what was going on. You need to assert that we acted independently."

Last night, defense attorneys filed a motion to dismiss the case. They charged that the lawyer knew what she was doing was wrong, because she conspicuously told one of the witnesses not to respond to her e-mail in writing.

Some family members of 9/11 victims, like Eddie Bracken(ph), said they would be devastated if Moussaoui gets life without parole because of a prosecution error.

Mr. EDDIE BRACKEN: I'd be very upset. I'd be very, very, very upset. I'd probably clench my teeth and my fist.

SULLIVAN: Judge Brinkema ordered the prosecution to produce the seven FAA witnesses today. She said she wants to find out how much damage has been done.

Laura Sullivan, NPR News.

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