Aviation witnesses allowed to testify in Moussaoui trial


WASHINGTON -- The federal judge in the sentencing trial of Zacarias Moussaoui refused yesterday to reconsider her ruling banning testimony by aviation witnesses improperly influenced by a government attorney but did allow prosecutors to use other airport security witnesses who were "untainted" by attorney Carla J. Martin.

With prosecutors unlikely to appeal the issue further, the judge's compromise appeared to put the troubled trial back on track when it is scheduled to resume before the jury Monday morning. But prosecutors will be working from a marked disadvantage, with much of the central part of their case stricken from the trial.

Prosecutors indicated that they would use a single witness in place of the seven who were improperly coached by government lawyer Martin, calling it an "imperfect" solution.

But U.S. District Judge Leonie M. Brinkema added another restriction: Any such witness may testify only that aviation officials "could" have prevented the Sept. 11 attacks had Moussaoui cooperated with the FBI. She said they would not be allowed to back the prosecution's contention that the al-Qaida hijackers "would" have been stopped at the airport.

Lawyers for two airlines being sued by families of Sept 11 victims prompted Martin to coach the witnesses so the government's case would not undercut their defense, victims' lawyers allege.

A United Airlines lawyer received a transcript of the first day of the Moussaoui trial from an American Airlines lawyer and forwarded it to Martin, the victims' lawyers, Robert Clifford and Gregory Joseph, claim.

Martin's attorney, former federal prosecutor Roscoe C. Howard Jr., acknowledged that his client and United attorney Jeff Ellis were close friends and had talked about the two cases. "But I don't think there is any collaboration between them," Howard said.

He dismissed the Clifford and Joseph letter as the work of aggressive lawyers who "want to take a look at all the documents in the Moussaoui case" to see whether they might help their clients.

American Airlines attorneys denied yesterday that the government position in the Moussaoui case would have undercut their defense in the civil suit and said that none of their attorneys had any direct contact with Martin about the Moussaoui trial.

This week, prosecutors said they would have had to abandon efforts to secure the death penalty if they were not allowed to put on some aviation testimony.

In their opening statements March 6, prosecutors told the jury that they would prove that security officials would have stopped the Sept. 11 hijackers at the airports had Moussaoui helped them after his arrest in August 2001.

Moussaoui pleaded guilty last year to plotting with the Sept. 11 hijackers. Jurors are being asked to decide whether he should be sentenced to death or to life in prison. He was in jail when the attacks occurred, but the government contends that he was responsible for the loss of lives because he did not alert the FBI to the plot.

The case came near to collapse Monday when the judge learned that Martin, a 15-year government attorney working for the Transportation Security Administration, had violated the court's order against sharing trial transcripts with witnesses and trying to shape their testimony.

Brinkema ordered all aviation witnesses and evidence stricken from the trial. Prosecutors asked her to reconsider, saying they needed to put some aviation testimony before the jury to win a sentence of death for Moussaoui.

The sanction would leave prosecutors "with no way to show what the FBI could have done with information it had obtained about the hijackers. More important ... the jury and the public will see only half the picture of what could have happened had the defendant told the truth," the government said.

Prosecutors proposed alternatives to an outright ban on aviation testimony and evidence, which the judge agreed to yesterday. But she warned that the new witnesses "may not testify as to what the United States government 'would' have done with this information" from Moussaoui, "as such testimony would be unduly speculative and misleading."

The government's new testimony and evidence centers on a "no transport" security directive, commonly called a "no-fly list," that prosecutors said security officials would have put in place if they believed an attack was imminent.

"This evidence is simple, straightforward, and entirely uncontroversial, consisting mainly of FAA security directives issued over the years," the prosecutors said. "We would call one witness to explain what they are and how they are used to keep suspected terrorists from boarding commercial aircraft."

This, they said, "will allow us to present our complete theory of the case, albeit in imperfect form. We can then carry out our arguments from the FBI through to the FAA no-transport directive and present to the jury some semblance of what really could have happened had the defendant told the truth upon arrest."

They described this witness as someone "easily free of the specter of taint caused by Martin."

Moussaoui's defense attorneys had urged the judge to throw out the death penalty altogether. They told the judge that allowing new, untainted witnesses would be unfair to the defense because Moussaoui's lawyers would not have enough time to prepare to cross-examine them.

To that end, the judge ordered the government to give the defense the names of the new witnesses and the nature of their testimony at least three days before they are called to testify.

Martin awaits a hearing before the trial judge on possible civil or criminal contempt charges.

Richard A. Serrano writes for the Los Angeles Times. The Associated Press contributed to this article.

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