The revelation came on the fifth day of Zacarias Moussaoui’s trial in the United States which became stalled after the judge learned that a federal attorney coached witnesses in violation of court rules.
An angry US District Judge Leonie Brinkema considered Monday whether to dismiss the US government’s death penalty case against Moussaoui.
Brinkema said a lawyer for the Transportation Security Administration (TSA) sent e-mail to seven Federal Aviation Administration officials outlining the prosecution’s opening statements and providing commentary on government witnesses from the first day of testimony.
That was in violation of her pretrial order barring witnesses from exposure to any opening statements or trial testimony.
"An attorney for the TSA ... egregiously breached that order," she told jurors before excusing them until Wednesday. Of the seven, three were to testify for the government and four were potential defense witnesses.
Government officials identified the attorney as Carla Martin.
Brinkema wanted to hear Tuesday from the seven and from the attorney who contacted them to help her decide whether to throw out the government’s case.
If she does, Moussaoui would escape the possibility of execution and be sentenced to life in prison without chance of parole.
She said the rule against witnesses hearing testimony in advance is "a very important protection of the truth-seeking process."
The stunning development came at the opening of the fifth day of the trial after the government informed the judge and the defense over the weekend of the attorney’s contact.
Moussaoui appeared bemused as the lawyers debated how to proceed.
Attorney General Alberto Gonzales declined comment on the developments.
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.
The defense did not move for a mistrial, which would have restarted the proceedings.
Moussaoui, a French citizen, is the only person in the United States charged with the Sept. 11 attacks. He pleaded guilty in April to conspiring with al-Qaeda to hijack planes and to other crimes, but he denies any role in Sept. 11. He says he was training for a possible future attack.
Before the trial was recessed by Brinkema, the jury was to hear from the Minneapolis FBI agent who arrested Moussaoui – perhaps the key witness in the trial.
Special Agent Harry Samit’s testimony is equally important to prosecutors and the defense at Moussaoui’s sentencing trial. Samit, who has already testified for the prosecution, faced cross-examination.
Prosecutors say Samit and the FBI would have foiled the Sept. 11 attacks had Moussaoui confessed his membership in the al-Qaeda terror network and his plans to hijack an airplane after he was arrested on Aug. 16, 2001, and interrogated by Samit.
The defense argues Moussaoui’s lies made no difference because Samit saw through them and was convinced Moussaoui was a threat.
Up to now the burden of proof was this: To obtain the death penalty, prosecutors must first prove that Moussaoui’s actions — specifically, his lies — were directly responsible for at least one death on Sept. 11.
MacMahon said the government had told the defense that the TSA attorney had wanted the witnesses to be very careful in discussing the FBI agent’s acknowledgment that the FBI knew long before the Sept. 11 attacks that al-Qaeda militants in the Philippines were plotting to hijack an airliner, use it as a missile and crash it into CIA headquarters.
In January 1995, an accidental kitchen fire in a Manila apartment blew the cover of a terrorist plan, dubbed "Bojinka" (Serbo-Croat for explosion), which called for five militants to board 11 airliners and leave small bombs that would explode in mid-flight.
If successful, up to 4,000 people could have been killed. The key plotter, Ramzi Yousef, was arrested in Pakistan in February that year. He also planned to assassinate Pope John Paul II during his 1995 visit to Manila. He was tried and convicted in the United States in 1996. – AP