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Judge Modifies Ruling in Moussaoui Trial / Compromise Allows Prosecutors to Call an Aviation Witness

Posted on: Wednesday, 22 March 2006, 15:00 CST

By PAUL BRADLEY

The judge overseeing terrorist Zacarias Moussaoui's death- penalty trial restored a significant part of the prosecution's case yesterday, modifying her earlier ruling tossing out critical evidence for the government.

The decision by U.S. District Judge Leonie M. Brinkema adopts a prosecution-proposed compromise and allows prosecutors to present much of the evidence she had excluded earlier in the week.

The ruling is a significant win for prosecutors, who suffered a potentially crippling blow with Brinkema's original ruling. She had barred all evidence about how the government would have tightened aviation security had Moussaoui confessed his terrorist ties when arrested three weeks before the Sept. 11 attacks. Prosecutors complained the judge had essentially gutted their case.

Brinkema initially acted after concluding that six potential witnesses, all with ties to the Federal Aviation Administration or the Transportation Security Administration, had been tainted after being improperly coached by Carla J. Martin, a TSA lawyer.

Brinkema's modification will allow prosecutors to call an FAA witness who has had no contact with Martin.

"The government's proposed alternative remedy of allowing it to call untainted aviation witnesses or otherwise produce evidence not tainted by Ms. Martin has merit," Brinkema wrote in a court order.

The evidence now back in the case will focus on steps the FAA could have taken to tighten its "no-fly" rules for suspected terrorists had Moussaoui admitted his al-Qaida ties after his arrest on an immigration violation, court papers said.

"Allowing this evidence would permit the government to lay out both central components to its theory of our case - namely, that the FBI would have identified some of the hijackers and the FAA, through issuance of 'no-transport' security directives, would have prohibited them from boarding the planes on Sept. 11," prosecutors wrote in their motion asking Brinkema to reconsider her original order.

Government lawyers will still be barred from presenting evidence on countermeasures the FAA could have employed, such as banning small knives from airliners or ramping up screening at airport gates. That evidence remains tainted, Brinkema ruled.

The compromise "would permit the public to see at least an imperfect variation of the government's complete case, but a complete case nonetheless," prosecutors said in their motion.

Moussaoui, who pleaded guilty last April to six terrorism- related counts, admitting he plotted with al-Qaida to crash hijacked airplanes into prominent American buildings. A jury is now deciding between the death penalty or life imprisonment with no possibility of release.

Moussaoui contends he knew nothing of the Sept. 11 plot but was instead training for a second wave of attacks.

To obtain the death penalty, prosecutors must establish that Moussaoui intentionally took part in acts that directly led to the deaths of the Sept. 11 victims. Those acts, prosecutors contend, are the lies Moussaoui told investigators when he was arrested on an immigration violation on Aug. 16, 2001.

Prosecutors are trying to prove that authorities could have thwarted the attacks had Moussaoui told the truth. His trial, which was on hold all week, resumes Monday morning.

Contact staff writer Paul Bradley at pbradley@timesdispatch.com or (703) 548-8758.

ILLUSTRATION: PHOTO

Source: Richmond Times - Dispatch

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