Prosecutorial Pain: Zacarias Moussaoui

Imagine, you are the prosecutor in a terrorist case which has gained international attention (Germany, Britain, France, India, Middle East) because of its connections to 9/11. Your theory of the case was one which was somewhat shaky but the case is important and you have the entire federal government backing you on this one so you go forward to try this guy and subject him to death by lethal injection. Things in your favor? The guy's a maniac who pulls a surprise guilty plea out of his hat, refuses to cooperate with his attorneys, and is being a true jerk in the courtroom; he may actually be trying to become a martyr. Things against you? The trial judge already threw out the death penalty part of your case once and you had to get the 4th Circuit to overrule her. The defense has already moved for a mistrial because you said something he construed as inferring that the defendant should have spoken to the police after he invoked his right to remain silent. All-in-all, so far the case seems to - at least - be going okay.

Then one of your expert witnesses contacts you. A government attorney has been coaching her and 6 other expert witnesses using trial transcripts and talking points. WHAT???? No, that can't be right. Nobody that you work with would be dumb enough to violate the sequestration order and thru it the defendant's 6th Amendment right to an untainted confrontation with the witnesses; NOBODY would be dumb enough to violate the single, solitary specific sequestration example the judge gave: "[W]itnesses may not attend or otherwise follow trial proceedings (e.g., may not read transcripts) before being called to testify."

You investigate. It wasn't a prosecutor; it was an attorney for the Transportation Safety Administration (TSA). This offers little comfort. It means that nobody in your office is an idiot but you're still responsible for all the acts of all governmental actors. And, boy-howdy, were these some amazing acts.

The tale starts with the civil lawyer for American Airlines getting a copy of transcripts. He forwards a copy to a civil attorney for United Airlines. The United Airlines attorney then forwards the transcript to the government's TSA attorney. The TSA attorney then starts contacting the 7 aviation security experts the prosecution plans to call, sending them the transcript and emails:

"My friends Jeff Ellis and Chris Christenson, NY lawyers rep. UAL and AAL respectively in the 9/11 civil litigation ... all of us aviation lawyers, were stunned by the opening. The opening has created a credibility gap that the defense can drive a truck through. There is no way anyone could say that the carriers could have prevented all short-bladed knives from going through - (Prosecutor) Dave (Novak) MUST elicit that from you and the airline witnesses on direct...."

In follow-up emails the TSA lawyer coaches:

"[S]he urged FAA witnesses scheduled to testify for the government to openly acknowledge that agency X-ray machines could not identify all short-bladed knives like those used by the Sept. 11 hijackers so they would not appear to be concealing the limitation.

She urged Lynne Osmus, assistant FAA administrator for security, to stress that the agency's 'multilayered system of aviation security' would have 'thwarted the attacks.'"

You also find out that when the TSA lawyer told you that the expert witnesses didn't want to talk to the defense attorneys she "had never told the witnesses that Moussaoui's attorneys wanted to speak to them, and that they had the option to talk to the defense." OMG! You have no choice with such an egregiouss breach - you must turn it over. So, you give one email to the defense and the rest to the judge urg[ing] the judge to review [the] e-mails privately before deciding 'whether they must be produced to defense counsel.'"

Needless to say, this does not make the judge a happy lady: "In all the years I've been on the bench, I've never seen such an egregious violation of the court's rules on witnesses." "This is the second significant error of the Government affecting the constitutional rights of this defendant. More importantly, it affects the integrity of the criminal justice system in the United States." "I don't think in the annals of criminal law there has ever been a case with this many significant problems." Despite the testimony of the experts that they were unaffected by the transcript and emails the judge excludes them all from the trial: "Whether the witnesses have actually been tainted or not is almost impossible to tell. There are a number of errors so serious that that portion of the government's case has been seriously eroded." She also excludes all aviation security experts.

You go back and plead your case to the judge. Your theory is that if the terrorist had told what he knew before 9/11 the attack would have been stopped. Without airport security experts you can't pursue that line of reasoning. You make it pretty clear to the judge that you will appeal (again) if you cannot get new experts: "We don't know whether it's worth us proceeding at all, candidly, under the ruling you made. Without some relief, frankly, I think that there's no point for us to go forward."

Finally, the judge comes around. Your original experts are still excluded but you can call different ones as long as you give the defense 3 days notice and they are "untainted."

So your case continues. You have two major problems to work around, but the case goes on. First, where do you find an expert who isn't already tainted by the proceedings? Under the sequestration order you cannot call any witnesses who have been following the trial. Even if there were security experts who stuck their collective heads in the sand for the majority of the trial when their fellows were involved in a scandal with the TSA and it was splashed everywhere even the most blind surely paid attention. The second is the massive gift the TSA lawyer et al. have just handed the defense for impeachment. Lawyers who deal with this sort of airport security for a living don't believe your case can stand and apparently the experts which you had previously lined up were at least partially in agreement.

This case has gotten very interesting . . .