March 16, 2006

Salvaging Death From Life

Hatched by Dafydd

A day or two ago, a foolish lawyer in the Transportation Security Administration (TSA), Carla Martin, "coached" witnesses in the Zacarias Moussaoui case death-penalty phase. The witnesses worked for the Federal Aviation Administration (FAA), and prosecutors intended to call them to testify about defensive measures they would have taken, had the FAA only known that the 9/11 attacks were imminent... which (the government argues) they would have known if Moussaoui had told the truth to federal investigators when he agreed to cooperate.

So in retaliation for the hapless TSA lawyer violating that rule, the judge first considered ruling that the government couldn't see the death penalty against Moussaoui at all (?) -- and then finally ruled that they could seek it, but they weren't allowed to use their best evidence (!)

Zacarias Moussaoui

Sympathy for the Devil

The so-called "coaching" consisted of sending the witnesses transcripts of previous testimony, which the judge -- Clinton appointee Leonie Brinkema -- had specifically enjoined the government from doing. I suppose the presumption is that the witnesses would never have thought of saying they would have banned box cutters if they knew terrorists were going to hijack planes with box cutters... which is about the most preposterous presumption I've seen in this case.

The witnesses themselves (all of them) testified that nothing in the transcripts affected how they were going to testify -- which is kind of a no brainer: if Moussaoui had said "terrorists will use box-cutters to hijack airplanes and fly them into buildings," what do you think the FAA would have done?

In fact, several of the witnesses testified that they had not even read the attached transcripts. Yet they still are being banned from testifying. Can't trust those tricksie FAA folks!

I'm not a lawyer... and in this case, I think that gives me a clearer view of the absurdity of this: the death penalty is designed to protect the people of the United States, not to aid lawyers at the Transportation Security Agency. So if one of the latter screws up, why is Brinkema punishing the rest of us?

This is insane... but of course, she was appointed by Bill Clinton in 1993 and confirmed while the Democrats still controlled the Senate. I suspect they would have confirmed a hamster, if Clinton had assured them it would be anti-death penalty and pro-abortion.

In desperation, the prosecutors are trying to undo the damage. They have filed a motion begging the judge to let them call someone else from the FAA to testify to what the other witnesses would have testified, or something else to indicate that Moussaoui's specific information about 9/11 would have resulted in some useful reaction from the FAA that would have saved at least one victim. But I suspect that Brinkema will rule against them -- presumably on the theory that the action by Carla Martin from the TSA taints all conceivable witnesses from the federal government, even if they have never even heard of her and couldn't pick her out of a lineup. Can't trust those tricksie witnesses for the prosecution!

I think Brinkema has had it in for the feds for some time. She had an earlier run-in that borders on the psycho-comical, in my opinion. From the first Fox News article:

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.

Great Scott! The prosecutor suggested that Moussaoui should have confessed to what he has been convicted of doing. It's an outrage. Stop the trial, set Moussaoui free! His right not to be made uncomfortable for being a terrorist who conspired to kill 3,000 Americans was brutally violated.

I don't see any of this as having any bearing on the case. All the prosecution need show is that Moussaoui's lies resulted in at least one death in the 9/11 attacks. Nothing about what was shown to the FAA witnesses alters what they were going to say -- unless you first presume they're liars who needed to know what lie to tell in order to perjure themselves. Is that Brinkema's base assumption?

She has consistently made rulings throughout this trial that make it clear she thinks of this as an ordinary criminal case -- like a carjacking or a residential burglary: she expressed enormous frustration that much of what the government knows about al-Qaeda was classified, and they refused to parade it through open court; she insisted that Moussaoui be allowed to have a conversation with Ramzi Binalshibh, without the slightest concern about what terrorist communications they might exchange. And now she deliberately cripples the prosecution's case for the death penalty simply because some jerk working at the TSA stupidly enclosed some transcripts in e-mails... as if that were a mitigating factor for Moussaoui's crime or retroactively made it less likely that his lies contributed to the deaths of at least one of the 2,967 human beings and 19 terrorists that bright fall morning.

This is utter nonsense... and a perfect illustration why we cannot try terrorists in civilian courts.

Hatched by Dafydd on this day, March 16, 2006, at the time of 4:21 AM

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The following hissed in response by: Page

The bottom line, as you recognized, is that "we cannot try terrorists in civilian courts".

I have considerable experience with federal criminal prosecutions, as an investigator, agent of grand jury, etc., and I have no problem with Judge Brinkema treating this case "as an ordinary criminal case". That is exactly what her duty is and I am glad that she hasn't let passion, prejudice, or public perception interfere with that duty. God helps us all if a federal district court judge were to do otherwise.

The fault here lies not with the Judge but with Carla Martin, her supervisors, and perhaps with the AUSA's for not perceiving Martin's potential as a loose cannon. The Judge's ruling and sanction is textbook law; an agent of the prosecution has defied an order of the court and attempted to interfer with the defendant's right to confront the witnesses against him.

I understand your frustration with the apparent result of the ruling (a life sentence) but I have no problem with putting the burden on the State or Federal Government to follow their own rules in criminal prosecutions. Any other result would be frightening.

The above hissed in response by: Page [TypeKey Profile Page] at March 16, 2006 9:57 AM

The following hissed in response by: RattlerGator

No, what would be frightening is if the judge's ruling stands as is.

I suspect she will, in response to the appeal, reverse her earlier strident holding and allow some form of the testimony to go forward.

Either that, or she will be reversed on appeal.

You're right to note the absurdity of it all, Dafydd. I've had a conversation with a friend who is a former prosecutor and he agrees with the ruling -- technical adherence to the black-letter law, don't you know.

Many folks in our country still don't seem to realize that the ultimate strategy of these fools is to prove that the United States Constitution is, in fact, a death pact. Mullah Omar and his "what proof do you have" crowd obviously knew something about the Democratic Wing of the Democratic Party that I steadfastly refused to acknowledge.

It's more than a little bit depressing to be reminded over and over that they (Mullah Omar et al.) were right. This will never be anything but a law enforcement matter to these folks. Just what the mullah ordered.

Have you looked at the educational background of this judge? A philosophy geek. Bad news. Very bad news.

The above hissed in response by: RattlerGator [TypeKey Profile Page] at March 16, 2006 10:41 AM

The following hissed in response by: Dafydd ab Hugh


The Judge's ruling and sanction is textbook law; an agent of the prosecution has defied an order of the court and attempted to interfer with the defendant's right to confront the witnesses against him.

Page, isn't that exactly letting "passion, prejudice, or public perception" interfere with Brinkema's duty to judge in a way fair to both the defendand and to the people? We have rights in a criminal trial, too.

It's not cut and dried. The judge has wide discretion. She could have determined, for example, that there was no threat to Moussaoui's rights by these witnesses seeing some earlier testimony... and she could have responded by deeply sanctioning Carla Martin and not trying to hose up the entire case.

Would somebody please tell me how Moussaoui's rights were threatened? He pled guilty to the crime; we're only trying to determine whether he gets death or life.

That question hinges solely on whether we could have saved at least one life if he had spilled the beans. That's it, that's all we need know. If so, he gets death; if not, he gets life.

So unless you assume that the FAA witnesses intended to perjure themselves, how could knowing earlier testimony change their testmony in any significant way?

Say I witness an accident, and I plan to say that my friend Bob was at fault. Then I accidentally see earlier testimony, and some other witness says the other guy is at fault. Page, I'm not going to change my testimony and lie on the stand; I'll still say whatever I think is the truth.

Unless I get evidence otherwise, I assume the same is true for members of the FAA brought in to testify about how they would have responded to information Moussaoui could have given. But even if they were not honest; even if they planned to commit perjury just to put the needle into Zacarias Moussaoui... don't you think they would be smart enough to already realize what they had to say?

If I were a liar, and I were going to perjure myself to help Bob, I think I would already know -- even without seeing a transcript of the earlier testimony -- that I had to say it was the other guy who had the red light. Duh. So either way, seeing the transcript would not, of itself, endanger the other driver's rights.

To assume this will make a difference to Moussaoui, you have to assume the FAA witnesses are not only dishonest perjurers but also complete imbeciles who need to be told what lie to tell.

I just cannot see any rational way to conclude that this had any impact at all on Moussaoui's rights... hence I think the real motivation on Brinkema's part was a fit of judicial pique that her sacred orders were violated.

It is revenge, pure and simple; there is no other likely explanation that I have heard. "How dare you defy me! I'll fix you!"

And yes, Page, I find her political background very relevant to what would motivate her. I look at how her philosophical soulmates, like Justice Ginsburg, "judge" a case; and I conclude that the fruit doesn't fall very far from the tree.


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at March 16, 2006 1:58 PM

The following hissed in response by: Dan Kauffman

I don't mind this guy NOT getting to go to Paradise quickly. If he is a fanatic devout jihadist that is what he truly believes.

I would prefer telling him, to get used to his cell he will be in it for a LONG time and when his body starts wearing out in 50 years or so we plan to put him on machines.

Who knows maybe we can keep him corporeal indefinitely. ;-)

But then I may be more vindictive than most.

The above hissed in response by: Dan Kauffman [TypeKey Profile Page] at March 16, 2006 6:49 PM

The following hissed in response by: htom

You may find this easier to understand if you think of the defendant as having "rights" and the public as having "powers", which are limited by those rights individuals hold.

This is such a shocking thing to have done that I really wonder if it was done intentionally, so that he would not be executed, thus making him a prisoner rather than an exploitable martyr. I am not sure that I think that the government is that subtle, though, and the arrogance of power is more than sufficient to explain what happened.

The above hissed in response by: htom [TypeKey Profile Page] at March 17, 2006 9:21 AM

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