Government Given Until Monday to Rebuild Moussaoui Sentencing Case

RENEE MONTAGNE, host:

There has been another setback for the government in the death penalty trial of confessed terrorist Zacarias Moussaoui. The judge has barred prosecutors from calling several key witnesses. Yesterday's ruling does allow prosecutors to continue seeking the death penalty against Moussaoui, who's already pleaded guilty. But the loss of the witnesses is a major blow and the lawyers must now figure out how to proceed.

NPR's Laura Sullivan reports.

LAURA SULLIVAN reporting:

Prosecutors said if they were to lose the witnesses they planned to call from the Federal Aviation Administration, they would lose half their case. That is exactly what's happened.

Judge Leonie Brinkema found that the witnesses had been inappropriately coached and she tossed them out of the case, as well as any testimony about aviation security. She said there is no way to know how badly they had been tainted. And with no witnesses, there could be no discussion of whether the FAA could have prevented the attacks.

Family members of the 9/11 victims did not take it well.

Ms. ROSEMARY DILLARD (Widow of 9/11 Victim): I felt like my heart had been ripped out. I felt like my husband had been killed again. I felt like the government has let me down one more time.

SULLIVAN: Rosemary Dillard lost her husband aboard the flight that crashed into the Pentagon. Abraham Scott lost his wife, who was working in an office at the Pentagon. Scott said he had been really curious to hear what the government aviation employees were going to say about September 11th and how they might have stopped it with the right information from Moussaoui.

Mr. ABRAHAM SCOTT (Widower of 9/11 Victim): This has really put a setback to my grieving process.

SULLIVAN: It is also a setback for the prosecution. Prosecutors argued in their opening statements that they planned to prove that the FAA could have prevented 9/11 with better screening and watch lists. They said Moussaoui didn't tell them what he knew about a possible plot so the FAA didn't know what extra action to take. This issue is critical to the prosecution's case because in order to obtain the death penalty, the prosecution must convince a jury that people died as a direct result of Moussaoui lying.

Without the FAA or employees from the Transportation Security Administration, it will be difficult to show just how the government could have stopped the attacks, says Steven Salsburg(ph), a professor of law at George Washington University.

Mr. STEVEN SALSBURG (Law Professor, George Washington University): It was a very difficult case for the prosecution to persuade a jury that if Moussaoui hadn't lied, they would have stopped 9/11. very difficult with the TSA witnesses, without them, it appears to be almost impossible.

SULLIVAN: Prosecutors seem to agree. Prosecutor David Raskin jumped out of his seat after the ruling and said the government would likely appeal. If that happens, that means more delays in the trial that has already cost millions of dollars and lasted four and a half years.

In the morning, Judge Brinkema seemed angry with prosecutors, as she frequently glared down at them from her bench. One witness after another took the stand and acknowledged they had been coached by TSA Lawyer Carla Martin.

Then, defense attorney stumbled onto another problem for the prosecution while questioning three TSA employees. The employees testified they were never asked if they would be willing to meet with defense lawyers. Carla Martin apparently told the prosecutors, who then told the defense attorneys, that the employees had refused to meet with the defense team. By that point, Brinkema leaned far back in her chair and let out a long sigh. She later called Carla Martin's assessment a bald-faced lie.

Yesterday's problems came right on the heels of last week's misstep, when prosecutors asked an inappropriate question. Judge Brinkema said taken together, it would be difficult to find a case with this many significant problems.

Professor Salsburg agrees.

Mr. SALSBURG: It's the first case I've ever seen where I would say, if something else could go wrong, it probably will.

SULLIVAN: Judge Brinkema says she was not faulting the prosecutors individually for what she called the series of egregious errors--but she said the problem was created by a government lawyer, assisting the government with government witnesses. And it would be the government that would have to bear the burden.

Officials at the Justice Department said they are considering how to proceed. Judge Brinkema has given them until Monday to figure it out.

Laura Sullivan, NPR News.

MONTAGNE: A timeline for the case against Zacarias Moussaoui is at NPR.org

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