Prosecutors Seek Reversal on Moussaoui Ruling

When Judge Brinkema ruled that witnesses could not testify in the penalty phase of this trial, it threw the US prosecutor's case in doubt. They even openly admitted that if this ruling were to stand, there was no real chance of success.

So, we now learn that the US prosecutors are calling for Brinkema to reconsider her decision. This is the right move on their part, even if it is only the first step. If the decision is overturned, those witnesses will be able to testify, but if they fail to convince Brinkema to allow the witnesses to testify, they will have to file an emergency appeal with the Fourth Circuit Court of Appeals to salvage their case.

Brinkema did not immediately respond to the motion for reconsideration that prosecutors filed Wednesday evening. But she had indicated earlier she had time available Thursday to hear such a motion if it were filed.

The jury has been sent home until Monday to give prosecutors time for their next step.

Brinkema barred prosecutors from submitting any witnesses or exhibits about aviation security. Prosecutors responded in their motion that this evidence "goes to the very core of our theory of the case.

At the very least, the prosecutors argued, they should be allowed to present a newly designated aviation security witness who had no contact with Carla J. Martin, the Transportation Security Administration lawyer responsible for the government's misconduct. This would "allow us to present our complete theory of the case, albeit in imperfect form."

"The public has a strong interest in seeing and hearing it (aviation security evidence), and the court should not eliminate it from the case, particularly not ... where other remedies are available," they wrote Brinkema.