Feds Swimming Upriver On Moussaoui

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

It is hard to see how the feds will be able to meet their burden of proof without this testimony and it is easy to imagine the judge dismissing the case for good a few weeks from now when prosecutors have completed the first part of the process.

It could have been worse for government attorneys — but not much worse. True, they live to fight in court another day because the sentencing trial will continue. True, the death penalty still is an option for jurors. But the prosecution's case against Moussaoui now is fundamentally weaker than it was when it started just last week. A vital portion, an indispensable portion of it really, has been gutted by a veteran judge who said she had before never seen such inappropriate behavior in a case.

Judge Brinkema came to her landmark decision after hearing nearly a day's worth of testimony from a half dozen federal witnesses, all of whom (and another) received e-mails last week from Carla Martin, a lawyer at the Transportation Security Administration.

The e-mails included the prosecution's opening statement as well as a summary of testimony from at least one witness who testified in court last week. As if that were not bad enough, Martin then proceeded to suggest to those witnesses how they might tailor their testimony. All of this violated the judge's witness sequestration order as well as common sense.

The hearing Tuesday made things only worse for the government. One witness told the judge that Martin had told him not to talk to defense attorneys. Two witnesses told Brinkema that they had viewed media coverage of the trial. Another mentioned that Martin had said the defense was trying to portray its client as a "cuckoo."

When it was over, and without even hearing from Martin, Judge Brinkema decided to pull the plug on all of the witnesses and, perhaps more importantly, on the entire area of inquiry. It's awful news for a prosecution team that surely deserves better.

Why is the aviation evidence so important? Because it's the main link in the chain the government must prove tying Moussaoui to 9/11. The feds must establish that Moussaoui caused at least one death on 9/11 by lying to authorities when he was arrested in August 2001.

The flip side of that is that they must prove that the government would have reacted to Moussaoui's honesty back then by firming up aviation security in order to thwart the hijack plot. The seven witnesses who now are blocked from testifying were going to try to prove all that. The order blocks both these seven witnesses and also the testimony of any replacement witnesses the prosecutors might have been able to scare up.

Prosecutors know this ruling eviscerates their case, which is why they are likely to appeal the decision to the 4th U.S. Circuit Court of Appeals. That's a conservative federal appeals court based in Virginia that has sided before with the government and against Judge Brinkema in this very case.

The 4th Circuit a few years ago reinstated the death penalty as an option in the case after the trial judge tossed it out for evidentiary reasons.

Will the 4th Circuit rescue prosecutors again? I'm not so sure. Excluding witnesses from a trial, especially in these circumstances, typically is the sort of judicial function over which trial judges have great discretion. And when trial judges have great discretion, appellate judges typically show great deference.

If the 4th Circuit overturns Judge Brinkema, we will be back to where we started the week and Moussaoui will have another wonderful issue to raise on appeal, if he ultimately is given a death sentence.

If the 4th Circuit affirms Judge Brinkema's ruling, the government will know that it must continue its case without vital evidence. Don't be surprised if an appellate ruling that way, a ruling that keeps those witnesses out of this trial, ends the case for good. I can easily see the Justice Department ending its star-crossed bid to execute Moussaoui after blaming the courts (and Carla Martin) for the disaster this prosecution has become.

And if the government doesn't end its bid, and still cannot tell jurors about aviation security, it faces another crucial problem just a few weeks from now.

At the end of this phase of the trial, Moussaoui's attorneys plan to ask the judge to dismiss capital punishment as an option because the government did not and could not prove its case beyond a reasonable doubt. Without those seven witnesses, the judge might have to grant that motion and end the trial anyway. And that ruling would be even more unlikely to be overturned by the 4th U.S. Circuit.

No matter how you slice it, after the second dramatic day in a row in this epic trial, the prosecution's case is on the ropes, the government knows it, and things look to get worse before there is any chance they can ever get better.
By Andrew Cohen