Moussaoui Trial In Doubt?

Defense attorney Edward MacMahon moved to have the judge dismiss the death penalty as a possible outcome, saying "this is not going to be a fair trial." In the alternative, he said, at least she should excuse the government's FAA witnesses from the case.

Prosecutor David Novak replied that removing the FAA witnesses would "exclude half the government's case." Novak suggested instead that the problem could be fixed by a vigorous cross-examination by the defense.

But Brinkema said she would need time to study what to do.

"In all the years I've been on the bench, I have never seen such an egregious violation of a rule on witnesses," she said.

Moussaoui is the only person charged in this country with the 9/11 attacks. He pleaded guilty in April 2005 to conspiring with al-Qaida to hijack planes and other crimes, but he denies any role in 9/11. He says he was training for a possible future attack.

Brinkema noted that last Thursday, Novak asked a question that she ruled out of order after the defense said the question should result in a mistrial. In that question, Novak suggested that Moussaoui might have had some responsibility to go back to the FBI, after he got a lawyer, and then confess his terrorist ties.

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

Even prosecutor Novak conceded that the witness coaching was "horrendously wrong."

According to descriptions by the lawyers in court, it appeared that a female FAA attorney who had attended closed hearings in the case went over with four upcoming witnesses from her agency the opening statements at the trial, the government's strategy and even the transcript of the questioning of an FBI agent on the first day.

"She was at the Classified Information Act procedures hearing and she should have known it was wrong," Novak said.

MacMahon said the government had told the defense she had wanted the witnesses to be very careful in discussing the FBI agent's acknowledgment that the FBI knew long before Sept. 11, 2001 that al-Qaida terrorists in the Philippines were working on a plan to fly an airplane into CIA headquarters.

This mishandling of the case may irrevocably damage the case against Moussaoui. Not a good way to start off a Monday morning.

UPDATE:
To be clear, this doesn't affect his guilt - that is a given due to his plea arrangement. The problems today raise doubts over the sentencing phase, which was to determine whether Moussaoui would face the death penalty or life in prison. Outside the Beltway and Below the Beltway has more.