What's Really Wrong With The Moussaoui Case

  • Share
  • Read Later
Carla J. Martin has taken most of the flak this week for the potential collapse of the Justice Departmentís death penalty case against confessed Sept. 11 conspirator Zacarias Moussaoui. It is after all Martin, a former flight attendant turned government aviation lawyer, who stands accused of improperly coaching witnesses scheduled to testify in Moussaoui's sentencing trial, e-mailing trial transcripts and offering advice on how to testify.

But for all the trouble Martin allegedly caused federal prosecutors — who have told the court they were unaware of her actions and will try next week to get Judge Leonie Brinkema to reverse her decision barring the seven witnesses' testimony — critics claim Martin is only one symptom of much deeper problems in the way the Justice Department has handled the high-profile terror case.

For one, the sea of government attorneys working on the case, many from outside Justice, simply got too large; the more lawyers the prosecution has working on a case, many attorneys argue, the more chances a serious mistake will be made. Martin herself works as a Transportation Security Administration lawyer, and prosecutors say she had no substantive involvement with the case, simply locating TSA files and helping arrange witness interviews. Lawyers who know her say she's an aggressive attorney but has confined herself to work in civil and administrative law, which has looser rules for admissible evidence than in criminal law. The case was "a classic example of too many chefs spoiling the soup," says Larry Barcella, a former assistant U.S. attorney who's handled a number of terror trials.

A more fundamental problem is what aviation security lawyers deride as the governmentís "imperial overreach." Prosecutors are arguing that if Moussaoui had come clean with FBI agents interrogating him before 9/11, airport security could have been beefed up to foil the hijackers. In other words, they are claiming that he should be put to death because of his inactions rather than his actions. "Itís enough of a stretch to get juries to convict people who drive getaway cars in a murder of conspiracy," says one government security lawyer not involved in the case. "But these prosecutors think Moussaoui should be put to death for not revealing a plan he never took part in?"

It hasnít helped matters that prosecutors have given the judge headaches over other missteps. Two years ago, for example, Brinkema took the death penalty off the table after government lawyers disobeyed her order that Moussaoui's legal team be allowed to interview captured al-Qaeda leaders that they claimed might clear their client, a ruling a higher court eventually overturned. And as recently as last week, Brinkema admonished prosecutor David Novak for posing an inappropriate question to an FBI agent who was testifying during the jury trial. "I don't think in the annals of criminal law there has ever been a case with this many significant problems," Judge Brinkema complained.

Martin's attorney, Roscoe C. Howard Jr., released a statement Thursday claiming his client, who was placed on paid administrative leave from her job Thursday and could face civil or criminal charges, has been "viciously vilified by assertions from the prosecution." What prosecutors have told the judge she did, the statement said, is not "the whole truth." Howard said Martin is preparing her response, which "will show a very different, full picture of her intentions, her conduct and her tireless dedication to a fair trial."

That may well be, but even Carla Martin's e-mails to prep witnesses — which were intended to bolster the government's case — ended up pointing out a serious flaw in it. As part of their case, prosecutors are arguing that if Moussaoui had come clean about the plot, enhanced airport screening could have detected the short-bladed knives that the hijackers carried on board. But as Martin herself wrote in one of her e-mails, "There is no way anyone could say that the carriers could have prevented all short-bladed knives from going through."

— With reporting by Sally B. Donnelly