More than a dozen pages of e-mails shown to the court contain a set of messages that "smacks of coaching," which the judge had prohibited.
U.S. District Judge Leonie Brinkema said it was "very difficult for this case to go forward" after prosecutors revealed that a lawyer for the Transportation Security Administration had violated her order barring witnesses from any exposure to trial testimony.
The prosecutors admitted Monday to Brinkema that the TSA lawyer had e-mailed seven future witnesses coaching notes on how to testify. One reads: "Today the FBI got tripped up on the stand. ... (don't) allow the defense to cut your credibility. ..." CBS News correspondent Jim Stewart reports.
Brinkema sent the jury home until Wednesday while she considers her options. She will hold a hearing Tuesday to determine the scope of the problem. The TSA lawyer, Carla Martin, and most of the seven witnesses — past or present employees of the Federal Aviation Administration who received e-mails from Martin — are expected to testify.
"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 Judge Brinkema that some of their witnesses have broken her sequestration rules by sharing information with each other about testimony, Cohen said. "This sort of mistake, this 'egregious violation,' as the judge put it, isn't supposed to happen in a county court never mind in federal court in the government's most important single trial over the century."
Brinkema said she had "never seen such an egregious violation of a rule on witnesses," and prosecutor David Novak agreed that Martin's actions were "horrendously wrong."
Defense lawyer Edward MacMahon asked Brinkema to dismiss the government's death-penalty case, saying, "This is not going to be a fair trial." Cohen says that it is the government's own slip up that could keep him from the punishment they desired.
"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," Cohen said.
Brinkema said Martin had sent e-mails to the upcoming witnesses in which she discussed the government's opening statement and trial strategy and included transcripts of the first day's proceedings, including the testimony of an FBI witness. MacMahon suggested that the upcoming witnesses were warned to "be careful" if they were cross-examined about certain topics.
"What that leads to is the very real potential that witnesses are rehearsed, coached or otherwise that the truth-seeking concept of a proceeding is significantly eroded," Brinkema said.
The tainted witnesses all come from the aviation field, and presumably would help the government make its case that cockpit doors would have been hardened and security at airports tightened — if Moussaoui had told the truth about 9/11, Stewart reports.
At the very least, McMahon said the government's FAA witnesses should be excluded. But prosecutor Novak protested they represented "half the government's case."
Brinkema said she also would reconsider the defense's request of last week for a mistrial — made after a question from Novak suggested to the jury that Moussaoui might have had an obligation to confess his terrorist connections to the FBI even after he had invoked his right to an attorney.
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 wit