Amateur Hour

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

You just cannot make up what has happened in the Moussaoui sentencing trial, which now teeters on the brink of a mistrial after prosecutors told U.S. District Judge Leonie M. Brinkema Monday that some of their witnesses have broken her sequestration rules by sharing information with each other about testimony. This sort of mistake, this "egregious violation," as the judge put it, is not supposed to happen in a county court, never mind in federal court in the government's most important single trial over the century.

The feds will have no one to blame but themselves if the judge—as threatened—sanctions prosecutors by removing the death penalty as a sentencing option for Moussaoui. They have cheated—Moussaoui, the judge, the system and ultimately you and me—by making a series of some of the stupidest mistakes you ever will see committed by lawyers in a capital case. And if they make it through Tuesday's evidentiary hearing with their case alive in any form, they ought to say a silent prayer of thanks to and for a judge who is able to suffer fools gladly once in a while.

Early Monday, before the start of trial, Paul McNulty, the U.S. Attorney for the Eastern District of Virginia, and lead prosecutor David J. Novak notified Judge Brinkema that Carla Martin, an attorney for the Transportation Safety Administration, had "provided a copy of the transcript of the first day of trial to one of the witnesses from the FAA, Lynne Osmus." McNulty also told the judge that Martin had contacted at least six other witnesses in this fashion and that at least two of the seven witnesses had actually read the trial transcript. Martin's conduct, McNulty conceded, was "reprehensible and we frankly cannot fathom why she engaged in such conduct."

Moussaoui's attorneys immediately asked the judge to end the sentencing trial by removing as a sentencing option the death penalty from the case. That's already happened once in this case, remember. In 2003, Judge Brinkema tossed out the death penalty—even before Moussaoui pleaded guilty, which he did in 2005—because the government refused to provide him with reasonable access to witnesses who might have helped his defense. Only a federal appeals court ruling by Brinkema's bosses on the 4th U.S. Circuit Court reinstated capital punishment as a potential outcome here.

So what do the feds do in a trial presided over by a judge they know to be soft on the idea that Moussaoui's conduct warrants capital punishment? They give her a perfectly legitimate reason to kick out the penalty again—and in a fashion that would limit the power of the appeals judge to overturn her. Indeed, either way now, thanks to Carla Martin, the trial now is ruined. The only question is which side will have to appeal. If Judge Brinkema declares a mistrial prosecutors will race to the 4th Circuit and try to get her decision overruled. If she does not, defense attorneys will race to the 4th Circuit if Moussaoui ultimately loses at trial. I just don't see how the federal courts untaint the taint to important witnesses that has occurred—at least in a way that gives Moussaoui whatever constitutional rights to which he is entitled.

The emails, released late Monday, are striking for several reasons. First, on a substantive level, they indicate that Martin, an experienced attorney working first with the Federal Aviation Administration and now with the TSA, believes her colleagues at the Justice Department's opening statement contained "more than a few errors" and left "big gaps" in the case "that the defense can exploit." She wrote in one email: "…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…"

Even if you discount Martin's opinion on the merits of the case—and why wouldn't you given how stupid she has acted?—it is not insignificant that aviation lawyers believe, apparently, that the core of the case against Moussaoui is weak. If prosecutors cannot prove that the airline industry, including its government overseers, would have reacted swiftly to the threat of hijackers had Moussaoui warned them before Sept. 11, they cannot get from jurors a death penalty recommendation anyway. It is astonishing that important governmental lawyers would think so poorly of the government's case—and essentially embrace the defense view of how weak the link is between Moussaoui and Sept. 11.

But it is on the procedural level that this fight will unfold and here, too, Martin's emails are devastating to prosecutors. It is bad enough that they exist. No sensible attorney ever would have or should have written and sent them and no honorable witness ever would have or should have read them. You learn in law school that witnesses are not supposed to confer with one another lest they conform their stories to match one another. Every trial judge in the country issues an order, written or verbal, like the one Judge Brinkema has in place in this case. Any lawyer in the country ought to know without confirmation that such an order exists.

And it gets even worse. Martin's uninvited comments to the Gang of Seven also suggest a level of coordination and coaching of the witnesses that is even more destabilizing to the trial than the exposure itself. One witness, responding to Martin, says he or she "agree we need to be careful in describing" certain testimony. To another witness, Martin talks about how that witness, and others, "have their work cut out for them, and you may as well" to get around certain problems with the evidence. In yet another, Martin tells one witness "we MUST emphasize the deterrent value of the measures."

Judge Brinkema has scheduled a hearing Tuesday to dig deeper into this mess. It will not be pretty for prosecutors or for Martin, who single-handedly may have derailed a trial that took over four years to begin and cost us tens of millions of dollars. But it clearly will give aid and comfort to Moussaoui, the terrorist, who has been saying all along that the government is lying and cheating to win. This trial is about to become a show trial, all right, but for all the wrong reasons.

By Andrew Cohen