Blunder Jeopardizes Moussaoui Trial

Federal E-Mails Seem To Show Witness-Coaching

(CBS/AP) 

Brinkema noted that when Novak asked the question Thursday, she ruled it out of order after the defense said the question should result in a mistrial.

Brinkema warned the government at that point that it was treading on shaky legal ground because she knew of no case where a failure to act resulted in a death penalty as a matter of law.

"This is the second significant error by the government affecting the constitutional rights of this defendant and, more importantly, the integrity of the criminal justice system in this country," Brinkema said Monday.

Of the seven witnesses whose testimony was potentially tainted, three were expected to be government witnesses and four were expected to be defense witnesses. Novak suggested that, in lieu of dismissal, perhaps two of the government's witnesses should be excluded from trial and the defense could present its FAA witness evidence through a stipulation rather than by testimony, meaning the defense witnesses would not be subject to cross-examination.

If Brinkema bars the government from pursuing the death penalty, the trial would be over and Moussaoui would automatically be sentenced to life in prison without possibility of release. The government could appeal that ruling.

Moussaoui pleaded guilty in April to conspiring with al Qaeda to hijack aircraft and commit other crimes, and the current trial will determine his punishment: life in prison, or death.

Brinkema barred prosecutors from seeking the death penalty against Moussaoui once before, in 2003, after the government refused to allow the defense to question key al Qaeda leaders in U.S. custody. But an appellate court overruled her in 2004 and reinstated the death penalty as an option.

Moussaoui appeared amused as the lawyers debated how to proceed. Leaving the courtroom, he said, "The show must go on."

Attorney General Alberto Gonzales declined comment on the developments.

Thomas G. Connolly, a former federal prosecutor in northern Virginia, called the TSA lawyer's actions "a monumental blunder" that puts Brinkema in "an impossible position."

"Either she goes forward with a record that is subject to a strong challenge on appeal and faces the possibility of having to do this all over again or she finds the case is now so tainted that she declares a mistrial and has to do it all over. And her third option is equally bad: dismissing the death penalty and not permitting the victims' families to see the process play out in court."

Aitan Goelman, a former federal prosecutor who worked on the Timothy McVeigh and Terry Nichols trials for the bombing of the federal building in Oklahoma City, said he did not believe the mistake warranted dismissal.

"There's a whole range of remedies," he said. "Exclusion of witnesses seems to be the punishment that fits the crime."

Moussaoui is the only person charged in this country with the Sept. 11, 2001, attacks. While he has pleaded guilty to conspiracy, he specifically denies any link to 9/11 and says he was training to be part of a possible future attack. Prosecutors, to obtain the death penalty, must prove that Moussaoui's actions resulted in at least one death on Sept. 11.