Slate's Jurisprudence: A Mistrial for Moussaoui?

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MADELEINE BRAND, host:

In a courtroom in Alexandria, Virginia, the prosecution's case for executing confessed terrorist Zacharias Moussaoui hangs by a thread today. Judge Leonie Brinkema is holding a special evidentiary hearing, because yesterday, the prosecution revealed that a government lawyer had improperly communicated with witnesses. Those witnesses are testifying without the jury present. The lawyer who sent them the information was going to testify, too, but did not, because she could not get an attorney for herself.

ALEX CHADWICK, host:

So, now the judge must decide whether to drop the death penalty and instead sentence the defendant to life without parole. Dahlia Lithwick, Legal Analyst for the online magazine Slate and for DAY TO DAY is back with us. Dahlia, the judge was pretty angry yesterday. What happened that made her stop the trial?

Ms. DAHLIA LITHWICK (Legal Analyst, Slate Magazine): Well, in a huge surprise, Alex, the government disclosed before yesterday's proceedings that a government lawyer had improperly communicated with seven key witnesses from the FAA. This was in direct violation of a fairly standard court order that prohibits witnesses from reading trial transcripts, from aligning their stories to be more effective, and yet this government lawyer had emailed them portions of the transcripts with her critical gloss on what the prosecution had done wrong, and told them how to change their testimony to shore up the case. It was completely egregious said the judge, who then dismissed the jury and said, I need to hold a hearing today, Tuesday, to figure out what I'm going to do.

CHADWICK: And so, what could make the judge decide to remove capital punishment as an option for Zacharias Moussaoui?

Ms. LITHWICK: Well, what she has said is this is such egregious misconduct-- this testimony is now so tainted. These witnesses know things they shouldn't know, they've been coached in ways they shouldn't have been coached. They've kind of got their ducks in a row, and their stories pulled together, and that denies Moussaoui the right to a fair proceeding. And don't forget, this is not any ordinary trial. The question here is whether he's going to die. And so, it's incredibly high stakes, and the judge says there's no way, almost, that I can go forward now, because this testimony is so tainted.

And so, what she's doing today is talking to those seven witnesses one by one, out of the presence of the jury, to figure out, indeed, how tainted their testimony is, and to figure out if she can perhaps call some of them and not others--if she can change the rules of cross examination so that she can, you know, give a little leeway rather than taking death off the table, or if she, in fact, does have to take the death penalty off the table, or declare a mistrial and let this whole issue go up on appeal.

CHADWICK: Hasn't she had earlier frustrations with this trial as well?

Ms. LITHWICK: Well, she initially had frustrations with Moussaoui, who, you'll remember, was acting like a lunatic in the beginning. But quickly, she started to get frustrated with the government. You may remember that in 2003, she tried to take the death penalty off the table again, because the government had refused to allow Moussaoui or his attorneys access to key captive al-Qaida prisoners who would have, Moussaoui says, been able to exonerate him.

That was reversed in a higher court of appeals, and so the death penalty is back on the table. But again, as recently as last week, Brinkema was telling the prosecutors that she had real problems with their constitutional theory here, with their criminal theory. And that, to quote her, "I don't know of a case where the failure to act is a basis for the death penalty." And the allegation that Moussaoui had some duty to come forward and tell the FBI everything he knew about the plots is just not a sound theory on which to kill someone.

CHADWICK: Do you draw conclusions from this case, Dahlia, about the general procedure of even trying to try alleged or admitted al-Qaida terrorists in open court?

Ms. LITHWICK: I think it's absolutely the wrong conclusion to draw, that you cannot try these terrorists in court. Don't forget, we tried and convicted the first World Trade Center bombers. I think the conclusion to draw is that when people throw monkey wrenches into the system, they can't turn around and say the system doesn't work.

CHADWICK: Opinion and analysis from Dahlia Lithwick. Thank you, Dahlia.

Ms. LITHWICK: My pleasure, Alex.

CHADWICK: Dahlia covers the courts for the on line magazine Slate, and for DAY TO DAY. And you can read those incriminating email notes that have upset the judge at our website, npr.org.

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