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Preview: RealClearPolitics - Articles - Debra Burlingame

RealClearPolitics - Articles - Debra Burlingame

Last Build Date: Mon, 20 Mar 2006 21:18:26 -0600

Copyright: Copyright 2007

The Moussaoui Prosecutors Did Nothing Wrong

Mon, 20 Mar 2006 21:18:26 -0600

Carla J. Martin draws a paycheck from the U.S. government. That makes her a government lawyer. But that's about all she has in common with the federal prosecutors who have been diligently toiling away on this criminal investigation of the 9/11 attacks for the last four and a half years. Her role in the Moussaoui case was to retrieve FAA documents in the discovery phase of the case and to serve as a point of contact for aviation security witnesses. She did not make strategic or substantive decisions. She did not determine which documents to assemble or whether they were Brady material, that is, exculpatory and therefore discoverable by the defense. She did not determine how classified documents should be redacted. She was not tasked with prepping witnesses. In short, she functioned in a housekeeping role on the periphery of the case. Ms. Martin's misconduct consisted of violating Judge Leonie M. Brinkema's witness sequestration order and denying the defense team access to two TSA employees by falsely claiming to prosecutors that these witnesses had declined to speak to defense attorneys. Witness sequestration--designed to keep witnesses from shaping their testimony based on the testimony of previous witnesses--is a standard trial rule commonly known and understood by first year law students. To suggest that prosecutors could foresee or prevent a seasoned attorney's unfathomable, reckless and potentially criminal decision to violate this basic court procedure is to suggest that they can fly to the moon. Worse, it is an impossible expectation with dangerous consequences. After Martin was summoned to Brinkema's court and invoked her 5th Amendment right not to answer any questions, the judge excoriated prosecutors, unfairly accusing one of committing a "bald-faced lie." Brinkema's behavior was similar to that of an angry, frustrated mother who knows that one of her children has been bad, but because she can't discipline the one who's guilty, the one in front of her will do. She then struck not just all seven allegedly "tainted" witnesses from the case, but all aviation evidence in toto. Everything. This effectively gutted the prosecution's proof connecting Moussaoui's conduct to the murder of 3,000 people. Rather than fashion a remedy that would simply and effectively cure any alleged prejudice to Moussaoui which, in fact, may be negligible, Judge Brinkema vented her wrath by taking a blunt sledgehammer to the case where a tuning fork would suffice. While her anger at the flagrant violation of her sequestration order was understandable, punishing the prosecution for the errors of an outside attorney whom they contend played no substantive role in any aspect of the case was fundamentally unfair. The September 11 attacks have been the subject of dozens of books and thousands of investigative reports, including two lengthy government investigations--the 2002 Joint Intelligence Inquiry and the 9/11 Commission--which explored in exhaustive detail the facts and circumstances surrounding the attacks. A particular focus of those voluminous reports was the primary method of terrorist destruction, aviation. In the last four years, government agents, federal prosecutors and outside agencies have interviewed thousands of witnesses and generated millions of documents about the events surrounding that dark day. The prosecutors in the Moussaoui case have turned over 160,000 witness interview records and over a million documents to the defense. Some of the same witnesses who were questioned in those government inquiries and whose lengthy interviews and sworn testimony before congressional committee hearings have been provided to the defense were among the witnesses excluded by Judge Brinkema's order on Tuesday, despite the fact that their previous statements lock them in and can be used by the defense during vigorous cross-examination to expose any alleged "coaching." The prosecution immediately moved for the judge to reconsider her excessive and broad order, and included a compromise to substitute new aviation witnesses. On Friday th[...]