March 13, 2006

"I have never seen such an egregious violation of a rule on witnesses."

Said Judge Brinkema, halting the Moussaoui trial:
Even prosecutor Novak conceded that the witness coaching was "horrendously wrong."
Brinkema says she needs time to figure out what to do. The defense has moved to eliminate the death penalty from the case, which would end the trial by making life without parole the only possible sentence. Brinkema has already commented that she knows of no case that imposed a death sentence for failure to act. So doesn't it seem likely that the judge will grant the defense motion?

IN THE COMMENTS: "Why are there four pictures of Moussaoui's mother? What does she have to do with the contents of this article? Wouldn't pictures of the lawyers or judge make more sense? She isn't even mentioned in the article."

UPDATE: Judge Brinkema decides to allow the government to continue to seek the death penalty, so I must update my prediction: she will not, in the end, give him the death penalty.


jeff said...

So, what happens to the TSA lawyer? Seems like she ought to be an ex-government lawyer, and perhaps even an ex-lawyer, by this point.

Freeman Hunt said...

Why are there four pictures of Moussaoui's mother? What does she have to do with the contents of this article? Wouldn't pictures of the lawyers or judge make more sense? She isn't even mentioned in the article.

brylin said...

Judge Brinkema was appointed by Bill Clinton in 1993.

MadisonMan said...

Judge Brinkema was appointed by Bill Clinton in 1993.

The point being?

I would venture to guess that any judge would do the same thing had the prosecution violated her rules. Note that even the prosecutor admitted to being in the wrong.

Is it standard for witnesses to be oblivious to opening comments? When I sat on jury duty in February, the witnesses were not present during opening arguments. Is that normal?

brylin said...

MadisonMan, Any judge?

Sure, it's just a coincidence, right?

Just like these are all coincidences, right?

Forgive me for being a little skeptical.

amn said...

I think Brylin is right. A Bush appointee would have said, "to hell with a trial," and executed Moussaoui himself.

Art said...

Let the record show that the TSA attorney, if he still has a job, is an employee ultimately under the supervision of Sec. of Homeland Security Michael Chertoff.

Was this guy freelancing or did he have orders? I wonder since the goal of the alleged tampering was to make the government look more competent than it obviously was.

DRJ said...

Any federal judge - no matter what their politics or who appointed them - would be livid if a prosecution or defense lawyer intentionally violated an order of the court. Lawyers rarely violate clear and specific court orders, especially in the federal courts. To paraphrase an old saying: "Hell hath no fury like a federal district court judge scorned".

DRJ said...

Art -

A minor point, but I think the TSA lawyer is a female.

Mark the Pundit said...


For the record, the "he" has been identified as a "she" - Carla Martin.

I suppose a man could have the name Carla, but I doubt it...

HaloJonesFan said...

I'd guess that there aren't many pictures of Moussaoi himself since he's been in custody for four years, and wasn't notable before that. His mother is the only Moussaoui we can get pictures of.

tjl said...

Federal Evidence Rule 615 permits the Court to order the exclusion of witnesses from the courtroom so that they cannot hear the testimony of other witnesses. It would also be a violation of this rule to coach a witness using transcripts or summaries of the testimony of other witnesses.
The rationale for the rule is that a witness should testify from his or her own knowledge only.
The rule doesn't apply to opening statements per se, but opening statements often indicate what a prosecution witness is expected to say, so the logic of the rule supports exclusion of witnesses from opening statements as well.
Any judge, regardless of political affiliation, would regard an intentional breach of the rule as very serious indeed.

peter hoh said...

In no way am I an apologist for Moussaoui, but I think that it's been very difficult for the government to prove that he is specifically tied to the Sept. 11 group. I suspect he knew some things, but that he was not fully up to speed on the specifics.

Perhaps he had been recruited along with the others, but I think he was working under some incorrect assumptions about the plot. Either he misunderstood the directions, or he was briefed incorrectly -- that is, his handler had bad information. Either way, I'm guessing he was working independently of the Sept. 11 terrorists.

He was, IIRC, trying to get time on a 747 simulator. That's not the kind of plane involved in the Sept. 11 attacks. I've heard of no evidence that any of the other terrorist pilots sought time on a flight simulator in the U.S. Also, his time in flight school did not match up with the window in which the other terrorist pilots were in flight school.

Senescent Wasp said...

I have this nagging little bell going off in the back of my skull. Moussaoui is actually two things. First he is a defendant. Second, he is a intelligence resource that has not been fully exploited. A death sentence gives no leverage at all short of commutation. Whereas, after a couple of years in durance vile many options open up for carrot and stick.

brylun said...

I am not an expert in federal rules of evidence.

Commentary to FRE 615 says:

"Many district courts permit government counsel to have an investigative agent at counsel table throughout the trial although the agent is or may be a witness. The practice is permitted as an exception to the rule of exclusion and compares with the situation defense counsel finds himself in--he always has the client with him to consult during the trial. The investigative agent's presence may be extremely important to government counsel, especially when the case is complex or involves some specialized subject matter. The agent, too, having lived with the case for a long time, may be able to assist in meeting trial surprises where the best-prepared counsel would otherwise have difficulty."

Now I'm really wondering about Judge Brinkema.

Ricardo said...
This comment has been removed by a blog administrator.
MadisonMan said...

Now I'm really wondering about Judge Brinkema.

In what way?

It seems like the rules are clear-cut. Witnesses cannot see/read testimony, but the prosecutor can have an 'expert' with him, and that expert may or may not testify. Prosecution witnesses were informed of testimony they weren't supposed to be aware of. Judge is pissed.

I will echo other remarks: it boggles the mind that if ZM had told the FBI about what was going down (if, indeed, he did know -- and that's an unproven if) that the government would have stopped it. Didn't the President have at his disposal the infamous briefing that said OBL wanted to use planes? He didn't act on that information, and yet he would have acted on the information from ZM? That's a very flimsy thread on which to execute someone.

And I'm curious: are brylin and brylun related?

Richard Dolan said...

The old saw was that hard cases make bad law. Perhaps it's also now true that high profile cases make bad law.

According to the news reports, the TSA attorney was posting summaries of the events in court -- openings, witness testimony, etc. While it was unclear from the article whether the TSA attorney was aware of the judge's pre-trial ruling, I assume that she was not and that the prosecutor was unaware that she was posting such summaries or sending them to likely witnesses. That the likely witnesses were almost evenly balanced between Gov't and defense witnesses (I believe it was 3 Gov't witnesses and 4 defense witnesses) belies any intention to "coach" these witnesses. Witness "coaching" is an effort to get the witnesses to testify more favorably to one's position than their actual memory of events would permit -- by coloring the way in which the witness recalls events, or "refreshing" a recollection of certain events that the witness had entirely forgotten. It would have been very bizarre for the TSA attorney, presumably working on the same side as the prosecution, to try to coach defense witnesses -- presumably, any such coaching would just allow them to anticipate the prosecution's arguments and its likely cross when those witnesses were on the stand.

Nor is there anything nefarious in preparing a witness to testify -- as any practicing trial attorney knows, it happens in every case and a trial lawyer who doesn't prepare his witness(es) is engaging in malpractice. As part of that preparation, a witness learns the attorney's theory of the case. To the extent the witness's expected testimony may present inconsistencies with that theory, those areas of potential tesimony (and any documents bearing on the issue) are the subject of intense review during the prep sessions.

It's true, as one commenter notes, that FRE Rule 615 allows the exclusion of certain witnesses (not including parties, party representatives, etc.). But the TSA attorney's account here sounds as if it were more like a newspaper account of the trial, perhaps with more detail. In my experience, courts don't generally read Rule 615 so broadly as to prohibit potential witnesses from reading newspaper accounts. And, in all events, it beggars the imagination to believe that the prosecution had not thoroughly prepared its witnesses long before this trial began.

Thus, it seems to me that there may have been an unintentional breach of the judge's pre-trial order. But it is quite unlikely that the breach resulted in any demonstrable prejudice to the defendant. Which one of these witnesses is going to come in and say that reading the TSA attorney's emails changed his or her testimony to be more favorable to the Gov't or less favorable to the defense? If that's the case, then it seems to me that the judge would be on very thin ground legally in tossing out the prosecution's case in the penalty phase.

As the appeals courts have held zillions of times in excusing errors by the prosection, the defense is entitled to a fair trial, not a perfect trial. Without a showing of harm, I don't see how the defense gets past that point.

E said...


Nice try, but Fed. R. Evid. 615 has zero applicability to this situation. What were there, four FAA witnesses that were coached? None were designated as the case/investigative agent.

As someone else pointed out, this is simply a case of the government violating a court's instructions (instructions that reinforced the default no-witness-coaching rule).

Trying to create the impression that the judge is somehow at fault or otherwise politically motivated defies common sense.

amn said...

Mr. Dolan,
According to the quote we're given the prosecutor regarded the incident as "horrendously wrong." Apparently you know something he doesn't.

JAL said...

Arguably, Atty Martin is guilty of witness tampering under 18 USC sec 1512(b). That carries a possible 10 year prison sentence.

brylin said...

JAL, The language of 18 USC 1512(b):
"Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct...."

I don't think it fits.

E, As for FRE 615, I said I wasn't an expert.

A long time ago I had a NY State case involving exclusion of witnesses, and the judge refused a motion to exclude them. As I recall from that case, the common law was rather murky (Wigmore and all).

From the NY Times, it appears that the attorney violated the judge's order by providing a copy of the opening statement and testimony of a witness.

It seems to me that what happened is a far cry from "coaching the witnesses."

It also seems fair to admonish the attorney for not following the order of the court, and proceed with the trial.

Why can't cross-examination of the witnesses handle any problem created by making documents available to the witnesses?

JAL said...


The language you quote from sec 1512(b) is pretty broad, e.g.,"engages in misleading conduct." And if a federal prosecutor were to pursue Atty Martin with the same zeal that the prosecution has shown in the Moussaoui, an indictment would not be a surprise.

JAL said...

...And if it is shown that Atty Martin's conduct were deliberate, instead of merely stupid, I'd expect an indictment.

JimNtexas said...

I'm not a lawyer, but I am a business person. I have a business in Williamson county Texas (just north of Austin), which is one of the most Republican counties in Texas.

I've participated in a number of civil court proceedings of one kind or the other in the last few years, giving me the opportunity to watch our County and District judges in action.

Many of our judges were appointed by then Governor Bush and then elected in unopposed elections. All are Republicans of course. We have no elected Democrats in this county.

We are as red a dot as you will find on any map.

I promise you that if a lawyer had pulled something like the TSA lawyer tried then I'd expect a thermonuclear explosion from any judge in the Williamson County Courthouse. The TSA lawyer would very likely spend a few nights in jail.

Heck, a couple of those guys would just borrow a gun from the baliff and shoot the TSA lawyer on the spot for less than this.

Our judges don't cotton to having their instructions disregarded.

vnjagvet said...

The question goes beyond what to do with the TSA lawyer, however, which can be handled with a sanction or contempt.

The real question is whether the improper conduct so prejudiced the proceding against the defendant to require a mistrial or a verdict (in this case a sentence) in the defendant's favor.

Without knowing the effect the conduct had on the witnesses testimony, it is difficult to assess its prejudicial effect on the defendant.

Ann Althouse said...

Of course, Moussaoui has already pleaded guilty, so the worst that can happen to the government's position is that he gets life without parole, which is probably what the judge would have given him anyway, since she thought it extraordinary to give the death penalty for failure to act. The defense has only requested the elimination of the death penalty. The most obviousl thing to do is to grant the defense motion. Can anyone justify a different response?

teddy_kgb said...

The fact that we are even debating this hurts the troops and emboldens the enemy. Sept 11 changed everything. This judge is still in a pre 9/11 mindset. Moussaoui is obviously guilty, and deserves the death penalty.


The Drill SGT said...

My wife the TSA attorney came home and was of the opinion that Ms Martin, was:

a. out of a job, and perhaps

b. subject to disbarment

We'll find out soon.

vnjagvet said...

Ms. Martin is afflicted by a disease, often seen in young lawyers, known as "terminal helpfulness".

This incident could well be a CEM.

If not, it should keep her away from the courtroom, if, indeed, she was ever near one.

misterfed said...

The "case agent" exception to witness exclusion has absolutely zero to do with this. These wits are not, by any stretch of the imagination, "case agents". That's the lead special agent on the AUSA's case who coordinates the witnesses and often leads the investigation.

I can't think of a single federal judge I've appeared before who wouldn't take this extremely seriously. About 50% of them would have blown a gasket as colorfully as the judge did here. 25% more, 25% less.

If I were that AUSA, I would be on the warpath about TSA right now. No one but the prosecution team should be "preparing" wits.

Richard Dolan said...

"The most obviousl thing to do is to grant the defense motion. Can anyone justify a different response?"

Well, yes. The "defense motion" here is, I assume, to end the penalty phase because of the apparent breach of the judge's order chargeable to the prosecution. Assuming as I do that the breach was unintentional and did not result in any prejudice to the defense (for reasons explained in an earlier comment), there are no grounds on which to grant such a motion.

It does not sound like you are suggesting that the judge should issue an opinion to the effect that the death penalty is not legally available here, because the crime to which the defendant has pled cannot result in the death penaly (either for constitutional or statutory reasons). Assuming the judge concludes that, for such reasons, the death penalty is not available here, that would at least be a legally acceptable rationale to end the penalty phase. If that is the "defense motion" to which you are referring, there would be no problem in principle in granting it. I haven't looked at the particular statute in play in this case and don't have an opinion on that subject. But if the "defense motion" relates to the brouhaha about the TSA attorney's postings about the openings, etc., it would just invite reversal to end the penalty phase based on an error chargeable to the prosecution that was both unintentional and harmless.

While I am not familiar with the particular statutory provisions invoked by the Gov't to seek the death penalty in this case, if I recall the death penalty cases correctly, the Supremes have held that constitutionally the fact finder in the sentenciing phase must have some discretion to decline to impose that penalty. If the judge is the factfinder here, she could make findings (if the evidence justified them) that justify refusing to apply the death penalty. If it's the jury, she has no right to intrude on their prerogatives. But in all events, I don't see what principle you are invoking to suggest that she should just pretermit the whole exercise because the application of the death penalty to a "failure to act" by the defendant just seems dubious. And without a showing of harm or proof that the prosecutorial breach was knowing and intentional, I don't see how this episode can be invoked to end the penalty phase of this case.

vnjagvet said...

From the articles, it sounds like the AUSA was almost as exercised about this little caper as Judge Brinkema was, as Mrfed suggests he should be.

Here is the biographical information on Ms. Martin, courtesy of MH. She has been practicing for sixteen years.

Government Profile for Carla J. Martin

Carla J. Martin
Office of the Chief Counsel, Federal Aviation Administration, Department of Transportation
US Government

Admitted 1990; University of Tennessee at Knoxville, B.A.; Washington College of Law, J.D.

She is neither poorly educated nor unseasoned, it would appear.

I would not want to be in her shoes in Alexandria on Wednesday.

teddy_kgb said...

If anyone is still interested in the particulars of the case, please see the relevant portions of the defense motion describing what the TSA attorney actually did.

Ok, obviously, adversarial proceeding = slanted writing. But this helps explain why everyone is so upset. If the central assertions of the defense motion are true, extremely serious sanctions are in order. And those sanctions should include removing the death penalty from consideration.

nk said...

Why is it even an issue that Moussaoui failed to renounce his Fifth Amendment rights and reveal the 9/11 conspiracy to the FBI. Was he part of a criminal enterprise which resulted in the murder of more than than three thousand people? Even if the federal courts have not adopted the criminal enterprise rule for accomplice liability, did he aid, abett, solicit, encourage the crime? It may be the reporting, but it seems to me to be less of a situation of a pro-defense judge and more of a situation of a clueless prosecution.

The Drill SGT said...

Thanks Teddy,

I looked at the defense memo. I am going to make some assertions here, based on what I know about Martin and what little I know about DoJ procedures.

1. I haven't googled it, but I assume that the prosecution is being run by the best trial attorney that either the DOJ criminal division has or can be found in US Attorney's office.

2. Martin is a staff attorney working for the TSA Chief Counsel, a place that doesn't do criminal law.

3. My understanding is that Martin was sort of a Liaison lawyer, making sure that the prosecution got what it needed from TSA (and FAA?).

4. I assume that the lead attorney tasks somebody or a couple of somebodies to honcho witnesses. a lawyer or FBI type. e.g. herd cats, know where they are, what they are going to say, prep them for trial, etc. That person was NOT Martin as far as I know

5. Reading the memo, it seems that Martin was freelancing with the with witnesses, independently trying to make her agency look good, and second guessing the principal DOJ attorney's opening statement, and witness handing.

6. Complete incompetence and misconduct at a personal level by a loose cannon. (Martin)
Hang her.

Then bring the guilty SOB back in and hang the defendant.

Wade_Garrett said...

I bet that a life sentence for a guy like this is actually a short-term death sentence . . . prisons are tough and I don't think the other prisoners would show him very much courtesy, if you know what I mean.

brylin said...

E, You said: "Nice try, but Fed. R. Evid. 615 has zero applicability to this situation."

But read the judge's order: "ORDERED, that Fed. R. Evid. 615 (Exclusion of Witnesses) be and is in effect...."

Nice try, E.

brylin said...

More facts, courtesy of the NY Times:

"Judge Brinkema, who had earlier tried to strike the death penalty from the trial only to be overruled by an appeals court...."

Would it surprise you that Brinkema, appointed by Clinton in 1993, is opposed to the death penalty?

me said...

Brylin: You are being ridiculous. The prosecution disobeyed a direct order given to it by the judge. The prosecutor admits that what the TSA lawyer did was horrendously, egregiously wrong. The prosecutor is falling on his sword hoping the judge will will not punish him too much -- he is ultimately responsible for the conduct of his case. This is not political, as many other commenters on both sides of the spectrum agree.

brylin said...

Me, Let's see.

The appellate court reversed Brinkema. On the death penalty issue. The Dems are vehemently opposed to the death penalty. Brinkema was appointed by Clinton. Here are some examples of political decisions by other Clinton judicial appointees.

Critical legal studies, embraced by ultra-liberal law profs, says all court decisions are political.

Oh yeah, look at what Andrew McCarthy has to say about this.

But you say it's not political. Please forgive me if I wait to see what she does tomorrow.

Do you think she will rule that the death penalty is off the table?

vnjagvet said...


The prosecutor did nothing wrong unless he knew that the TSA lawyer was not following the sequestration order and did nothing about it. That does not appear to be what happened.

I believe the misconduct was in fact revealed by the prosecutor.

me said...

vnjagvet said...

"The prosecutor did nothing wrong unless he knew that the TSA lawyer was not following the sequestration order and did nothing about it. That does not appear to be what happened. I believe the misconduct was in fact revealed by the prosecutor."

You are correct, the misconduct was revealed by the prosecutor, and the prosecutor did not know about the miscondcut by the TSA lawyer. However, the prosecutor is ultimately responsible for the gov't's case -- that is why he apologized profusely to the judge. He did something wrong by trusting the TSA lawyer to prep the witnesses without making sure she didn't violate court orders -- even though he did nothing intentionally wrong, "the buck stops here" concept applies.

brylin said...

According to Drudge, Brinkema is allowing the government to continue to seek the death penalty.

No other info is available there at this time.

tjl said...

Fed.R.Evid.615 and its state-law equivalents are not exactly bits of esoterica -- anyone who's ever tried a case should be aware of them -- so TSA attorney Martin's conduct is particularly egregious. Any judge would be wrathful at the prosecution under the circumstances, so it's unfair to read political motives into Brinkema's actions.

vnjagvet said...
This comment has been removed by a blog administrator.
vnjagvet said...

Of course lead trial counsel is responsible for the conduct of anyone aligned with the government's case.

It is perfectly understandable and appropriate for the judge to penalize the prosecution for this improper conduct. Exclusion of the witnesses seems to be a measured response proportionate to the offending conduct.

My primary point in yesterday's posts was that it appeared from the stories that Ms. Martin was an officious intermeddler, trying to prop up the government's case by giving extra help to the witnesses from her agency.

There is no indication that she had any trial experience, or that she was responsible in any way for the case.

brylin said...

tjl, Do you know how many times Brinkema has been reversed on this case already?

I'll give you a clue: you can count them here.

It would seem to me that the government should appeal the exclusion of witnesses.

misterfed said...

Didn't the government SUGGEST the exclusion of witnesses, as an alternative to a mistrial or a ruling taking the death penalty off of the table? That would make an appeal somewhat problematical.

Shepherd said...

I happen to know Ms. Martin. Maybe a little over the top but then again, thousands of people lost their life due to the poor babe on trial. Forgive her? Sure! Understandable? Maybe not but at least the SOB got more of a trial than those in the towers! We have become a country of wimps!