Prosecutors asked a judge Wednesday to reconsider her decision to toss out half of the government's case against confessed terrorist Zacarias Moussaoui. They acknowledged that altering the judge's ruling is their only hope of salvaging the death-penalty case.
In a motion filed with U.S. District Judge Leonie Brinkema, prosecutors said the aviation security evidence she barred because a government lawyer coached the witnesses "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 the offending lawyer. They said 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.
There was no immediate response from the judge, but she had indicated late Tuesday that she had time available Thursday to consider such a motion if it were made.
Prosecutors argued the sanctions imposed Tuesday were unnecessarily severe. The judge barred several key witnesses from testifying as punishment for the government's misconduct.
Brinkema's sanctions make it "impossible for us to present our theory of the case to the jury," the prosecutors said, adding that the barred testimony "is one of the two essential and interconnected components of our case."
They also emphasized that all the witnesses improperly coached by Transportation Security Administration lawyer Carla Martin testified at an evidentiary hearing Tuesday that their testimony would not be influenced by her actions.
The aviation security evidence was one of two parts of the prosecution's case: offensive and defensive measures they argue the government would have taken if Moussaoui had not lied to FBI agents about his terrorist connections when arrested in Minnesota three weeks before al-Qaida's Sept. 11, 2001, attack on the World Trade Center and the Pentagon. They say these measures combined would have prevented at least one death that day on which nearly 3,000 were killed as four hijacked jetliners were flown into the buildings.
They remain free to enter the offensive steps they believed the FBI would have taken in those three weeks to locate 9/11 hijackers in this country. But Brinkema barred them from presenting witnesses or exhibits about what defensive steps federal aviation officials might have taken to enhance airport security during that period.
In their compromise proposal, prosecutors suggested they would drop efforts to argue the Federal Aviation Administration would have barred small knives, like those used by the hijackers, from planes and would have altered its terrorist screening profiles to catch the terrorists.
Instead, they would call one witness, whom they did not identify, who worked at the FAA in August 2001 and could discuss the government's use of "no-fly" lists to bar specific terrorists from planes and how those lists evolved over the years. They said Martin had had no contact with this witness.