From: "Rich Gauszka" 

The judge said she had "never seen such an egregious violation of a
rule on witnesses," and prosecutor David Novak agreed that Martin's
actions were "horrendously wrong."

http://news.yahoo.com/s/ap/20060314/ap_on_re_us/moussaoui

ALEXANDRIA, Va. - The federal judge in the Zacarias Moussaoui case is
considering ending the death-penalty prosecution of the al-Qaida
conspirator after learning that a federal lawyer apparently coached
witnesses on upcoming testimony.

U.S. District Judge Leonie Brinkema said Monday it was "very difficult
for this case to go forward" after prosecutors revealed that a lawyer
for the Transportation Security Administration had violated her order
barring witnesses from any exposure to trial testimony.

Brinkema sent the jury home until Wednesday while she considers her options.

If she bars the government from pursuing the death penalty, the trial would
be over and Moussaoui would automatically be sentenced to life in prison
without possibility of release. The government likely would appeal that
ruling.

A hearing is scheduled for Tuesday to determine the scope of the problem.
The TSA lawyer, Carla Martin, and most of the seven witnesses - past or
present employees of the  Federal Aviation Administration who received
e-mails from Martin - are expected to testify.


The judge said she had "never seen such an egregious violation of a
rule on witnesses," and prosecutor David Novak agreed that Martin's
actions were "horrendously wrong."

 At the very least, he said the government's FAA witnesses should be
excluded. But prosecutor Novak protested they represented "half the
government's case."


Brinkema said she also would reconsider the defense's request of last week
for a mistrial - made after a question from Novak suggested to the jury
that Moussaoui might have had an obligation to confess his terrorist
connections to the     FBI even after he had invoked his right to an
attorney.

She noted that when Novak asked the question Thursday, she ruled it out of
order after the defense said the question should result in a mistrial.

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

"This is the second significant error by the government affecting the
constitutional rights of this defendant and, more importantly, the
integrity of the criminal justice system in this country," Brinkema
said Monday.

Of the seven witnesses whose testimony was potentially tainted, three were
expected to be government witnesses and four were expected to be defense
witnesses. Novak suggested that, in lieu of dismissal, perhaps two of the
government's witnesses should be excluded from trial and the defense could
present its FAA witness evidence through a stipulation rather than by
testimony, meaning the defense witnesses would not be subject to
cross-examination.

 Brinkema barred prosecutors from seeking the death penalty against
Moussaoui once before, in 2003, after the government refused to let the
defense question key al-Qaida leaders in U.S. custody. But an appellate
court overruled her in 2004 and reinstated the death penalty as an option.

Moussaoui appeared amused as the lawyers debated how to proceed. Leaving
the courtroom, he said, "The show must go on."

Attorney General Alberto Gonzales declined comment on the developments.

Thomas G. Connolly, a former federal prosecutor in northern Virginia,
called the TSA lawyer's actions "a monumental blunder" that puts
Brinkema in "an impossible position."

"Either she goes forward with a record that is subject to a strong
challenge on appeal and faces the possibility of having to do this all over
again or she finds the case is now so tainted that she declares a mistrial
and has to do it all over. And her third option is equally bad: dismissing
the death penalty and not permitting the victims' families to see the
process play out in court."

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