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The Moussaoui Prosecutors Did Nothing Wrong

By Debra Burlingame
"The Moussaoui case serves as a vivid reminder of the corrosive impact of prosecutorial misconduct. When a prosecutor breaks the rules, it's not just the defendant who loses. We all do."

So said the editorial page of the Chicago Tribune last week. But hold on here. There is no evidence that any prosecutor broke any rules in the Zacarias Moussaoui case. What happened in that Alexandria, Virginia courtroom last Tuesday was the result of the highly professional, highly ethical prosecution team unilaterally reporting the misconduct of a Transportation Security Administration (TSA) lawyer who is neither a criminal prosecutor nor a member of the prosecution team.

Carla J. Martin draws a paycheck from the U.S. government. That makes her a government lawyer. But that's about all she has in common with the federal prosecutors who have been diligently toiling away on this criminal investigation of the 9/11 attacks for the last four and a half years. Her role in the Moussaoui case was to retrieve FAA documents in the discovery phase of the case and to serve as a point of contact for aviation security witnesses. She did not make strategic or substantive decisions. She did not determine which documents to assemble or whether they were Brady material, that is, exculpatory and therefore discoverable by the defense. She did not determine how classified documents should be redacted. She was not tasked with prepping witnesses. In short, she functioned in a housekeeping role on the periphery of the case.

Ms. Martin's misconduct consisted of violating Judge Leonie M. Brinkema's witness sequestration order and denying the defense team access to two TSA employees by falsely claiming to prosecutors that these witnesses had declined to speak to defense attorneys. Witness sequestration--designed to keep witnesses from shaping their testimony based on the testimony of previous witnesses--is a standard trial rule commonly known and understood by first year law students. To suggest that prosecutors could foresee or prevent a seasoned attorney's unfathomable, reckless and potentially criminal decision to violate this basic court procedure is to suggest that they can fly to the moon. Worse, it is an impossible expectation with dangerous consequences.

After Martin was summoned to Brinkema's court and invoked her 5th Amendment right not to answer any questions, the judge excoriated prosecutors, unfairly accusing one of committing a "bald-faced lie." Brinkema's behavior was similar to that of an angry, frustrated mother who knows that one of her children has been bad, but because she can't discipline the one who's guilty, the one in front of her will do. She then struck not just all seven allegedly "tainted" witnesses from the case, but all aviation evidence in toto. Everything. This effectively gutted the prosecution's proof connecting Moussaoui's conduct to the murder of 3,000 people.

Rather than fashion a remedy that would simply and effectively cure any alleged prejudice to Moussaoui which, in fact, may be negligible, Judge Brinkema vented her wrath by taking a blunt sledgehammer to the case where a tuning fork would suffice. While her anger at the flagrant violation of her sequestration order was understandable, punishing the prosecution for the errors of an outside attorney whom they contend played no substantive role in any aspect of the case was fundamentally unfair.

The September 11 attacks have been the subject of dozens of books and thousands of investigative reports, including two lengthy government investigations--the 2002 Joint Intelligence Inquiry and the 9/11 Commission--which explored in exhaustive detail the facts and circumstances surrounding the attacks. A particular focus of those voluminous reports was the primary method of terrorist destruction, aviation. In the last four years, government agents, federal prosecutors and outside agencies have interviewed thousands of witnesses and generated millions of documents about the events surrounding that dark day.

The prosecutors in the Moussaoui case have turned over 160,000 witness interview records and over a million documents to the defense. Some of the same witnesses who were questioned in those government inquiries and whose lengthy interviews and sworn testimony before congressional committee hearings have been provided to the defense were among the witnesses excluded by Judge Brinkema's order on Tuesday, despite the fact that their previous statements lock them in and can be used by the defense during vigorous cross-examination to expose any alleged "coaching."

The prosecution immediately moved for the judge to reconsider her excessive and broad order, and included a compromise to substitute new aviation witnesses. On Friday the judge agreed to allow one new witness. She would have been hard-pressed to justify anything less. Brinkema's initial wrecking ball order would have excluded even those witnesses who had absolutely no contact with Carla Martin.

Legal doctrine dictates that when an error has occurred that would jeopardize a defendant's right to a fair trial, the judge is obliged to use the least severe sanction or corrective measure to protect the defendant from being prejudiced. Why? There are other equities here, even in a death penalty case. Trials are a search for the truth. Judge Brinkema also has an obligation to the People and, in this case, to the victims and survivors of the September 11 attacks, some of whom were permanently disfigured in the inferno which raged not five miles from her courtroom. They have been patiently waiting four and one half years to hear this evidence.

The judge must do what is required to protect the defendant's constitutional rights, but no more. Judges rightfully impose punitive sanctions on attorneys for the salutary effect of curbing improper or unethical behavior, but sanctioning the prosecutors for behavior they neither engaged in, encouraged, nor could reasonably foresee punishes no one more than the public.

Moreover, excluding evidence which severely damages the heart of the government's case because of the misconduct of an individual outside the control of prosecutors will only encourage such misconduct in future trials. Want to sink the prosecution's case or force a mistrial? Have someone outside the case send inappropriate emails to witnesses which comment on the trial and offer unsolicited, "helpful" advice about the case. To be sure, the judge has an obligation to protect the defendant's rights, but it is an abuse of her discretion to go drastically beyond that if doing so will effectively destroy the government's case.

Finally, let us not forget that this trial will not decide Moussaoui's guilt or innocence. This is the same committed terrorist who stood before Judge Brinkema last April and pleaded guilty in a clear, loud voice to six counts of conspiracy which resulted in the deaths of 3,000 innocent men, women and children. Three of those individual counts alone qualify him for the death penalty.

Let us not forget that Moussaoui is an unrepentant member of al Qaeda whose shouts of "Death to America" echo throughout the courtroom each time he leaves it, who dares to declare to her face that Judge Brinkema is presiding over a "kangaroo court" even as his five court-appointed attorneys vigorously plead his case.

Despite the court's modified order, the prosecution has been seriously hurt by the outside interference of someone who, it may turn out, was more interested in protecting the joint interests of the TSA and the airlines rather than effecting an outcome in the Moussaoui case. It will be a grave injustice if her actions ruin years of diligent, dedicated work, but it will also be grossly unfair if her conduct besmirches the professional reputation and credibility of these career prosecutors. However one assesses the prospects of the case going forward, to say that it has run aground because of prosecutorial misconduct is to ignore the plain facts.

Ms. Burlingame, a former attorney, is the sister of Capt. Charles F. “Chic” Burlingame III, pilot of American Airlines flight 77 which crashed at the Pentagon on September 11, 2001.

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