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.
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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.
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.
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?
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".
Art -
A minor point, but I think the TSA lawyer is a female.
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.
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.
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.
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?
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.
Arguably, Atty Martin is guilty of witness tampering under 18 USC sec 1512(b). That carries a possible 10 year prison sentence.
brylin
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.
...And if it is shown that Atty Martin's conduct were deliberate, instead of merely stupid, I'd expect an indictment.
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.
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?
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.
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.
"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.
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.
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.
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.
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.
Me:
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.
Brylin:
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.
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.
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