Angry judge questions U.S. death case against Moussaoui
Judge to consider witness coaching by government lawyers

http://www.cnn.com/2006/LAW/03/13/mo....ap/index.html

Monday, March 13, 2006; Posted: 10:47 a.m. EST (15:47 GMT)

ALEXANDRIA, Virginia (AP) -- An angry federal judge unexpectedly recessed the death penalty trial of al Qaeda conspirator Zacarias Moussaoui to consider whether government violations of her rules against coaching witnesses should remove the death penalty as an option.

The stunning development came at the opening of the fifth day of the trial as the government informed the judge and the defense over the weekend that a lawyer for the Federal Aviation Administration had coached four government FAA witnesses.

The coaching violated the rule set by U.S. District Judge Leonie Brinkema that no witness should hear trial testimony in advance.

"This is the second significant error by the government affecting the constitutional rights of the defendant and the criminal justice system in this country in the context of a death case," Brinkema told lawyers in the case outside the presence of the jury.

Defense attorney Edward MacMahon moved to have the judge dismiss the death penalty as a possible outcome, saying "this is not going to be a fair trial." In the alternative, he said, at least she should excuse the government's FAA witnesses from the case.

Prosecutor David Novak replied that removing the FAA witnesses would "exclude half the government's case." Novak suggested instead that the problem could be fixed by a vigorous cross-examination by the defense.

But Brinkema said she would need time to study what to do.

"In all the years I've been on the bench, I have never seen such an egregious violation of a rule on witnesses," she said.

Brinkema noted that last Thursday, Novak asked a question that she ruled out of order after the defense said the question should result in a mistrial. In that question, Novak suggested that Moussaoui might have had some responsibility to go back to the FBI, after he got a lawyer, and then confess his terrorist ties.

Brinkema warned the government at that point that it was treading on shaky legal ground because she said she knew of no case where a failure to act resulted in a death penalty as a matter of law.

Moussaoui pleaded guilty 11 months ago to conspiring with al Qaeda to hijack planes and commit other crimes.

The sentencing trial is being held for the jury to choose between execution or life in prison without possibility of release.

To obtain the death penalty, prosecutors must first prove Moussaoui took an action that led directly to deaths on September 11.

Moussaoui denies he had any role in September 11 and says he was training for a possible future attack on the White House.