Judge Leonie Brinkema lost no time and minced no words when she took the bench Monday morning. "In all my years on the bench, I have never seen such an egregious violation of the court's rule on witnesses," she proclaimed.
Virtually everyone in the courtroom sat up, silent and stunned. The tone of the stern schoolmarm was so evident that those in attendance started guiltily searching their own consciences and memories.
Born in Teaneck, N.J., in 1944, Brinkema did graduate work in philosophy at two universities before obtaining her MLS at Rutgers in 1970 and her J.D. from Cornell in 1976. She worked for a number of years as a trial attorney for the Justice Department, and was appointed a Magistrate-Judge in 1985 during the Reagan administration. President Bill Clinton elevated her to the U.S. District Court in 1993.
With her grey hair pulled back in a bun, she can look like your kindly old grandmother. But make no mistake: This lady can be one tough judge. Last summer she handed down sentences of up to 65 years in prison for a group of Muslim men accused of training for terror attacks overseas. In this case, she has patiently borne the most vituperative attacks from the defendant himself, whom she first allowed and later denied the ability to represent himself.
This morning it soon became clear that a lawyer working for the government had violated the judge's rule that no witnesses should be made aware of earlier testimony in the case. In fact, the attorney, Carla Martin, shared trial transcripts with seven witnesses, most from the FAA.
Defense attorney Edward MacMahon complained that "this is not going to be a fair trial any more," and noted that Martin, a lawyer for the Transportation Security Administration, had actually attended closed hearings to consider classified information. The judge repeated his words incredulously, seemingly unable to believe that one so knowledgeable could have violated so basic a rule.
Brinkema made it clear that the government's case is on exceedingly shaky ground, noting that one prosecutor had already asked an improper question of a witness last Thursday. Although she had told the jurors to disregard the question, she warned the government today that that error had been "a close call." Now, however, she said, "this is the second significant error by the government affecting the Constitutional rights of this defendant, and, more importantly, it affected the integrity of the criminal justice system of this country in the context of a death case."
The judge then called in the jury and explained that a government lawyer unrelated to the prosecution had "egregiously breached" her rule on witnesses, "a very important protection of the truth-seeking portion of a trial." As stern as she had been with the attorneys, Brinkema was the kindly and concerned grandmother with her jurors. "The weather is beautiful," she told them, so take the rest of the day off, and Tuesday, too, "while I figure out what I'm going to do."
Prosecutors had pleaded with her not to throw out the FAA witnesses, who represent "literally half of the case." Defense attorneys, who on Thursday had demanded a mistrial, today said the case should be dismissed. The net effect of that action would be for Moussaoui to spend the rest of his life in prison, the result the defense has been seeking anyway.
Perhaps more important, Brinkema has herself ruled in the past that because the government has refused to make available to the defense certain witnesses who could give testimony favorable to Moussaoui, the death penalty should not be under consideration in the case. However, she has been overruled on that issue by an appeals court.
It just may be that Tuesday's evidentiary hearing will provide all the ammunition she needs to do what she thinks is just.