Fighting for the death penalty in a 9/11 sentencing trial, prosecutors are beseeching a federal judge to reconsider her decision to exclude half the government's case against confessed Al Qaeda conspirator Zacarias Moussaoui.
They acknowledge their only hope of obtaining the death penalty for the 37-year-old Frenchman of Moroccan descent is to persuade U.S. District Judge Leonie Brinkema she punished the government too harshly for tampering with trial witnesses and lying to defense attorneys.
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.
Brinkema ruled Tuesday that Martin violated federal rules when she sent trial transcripts to seven aviation witnesses, coached them on how to deflect defense attacks and lied to defense lawyers to prevent them from interviewing witnesses they wanted to call. The judge said Martin's actions and other government missteps had left the aviation evidence "irremediably contaminated."
Martin has been placed on administrative leave from her TSA job, agency spokeswoman Yolanda Clark said Thursday.
The only person charged in this country in the Sept. 11, 2001, attacks, Moussaoui pleaded guilty in April to conspiring with Al Qaeda to fly airplanes into U.S. buildings. But he denies any involvement in 9/11, saying he was training for a possible future attack.
This trial is to decide whether he is executed or spends life behind bars.
Prosecutors said the excluded evidence "is one of the two essential and interconnected components of our case."
The prosecution's case is based on 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 Qaeda flew jetliners into New York's World Trade Center, the Pentagon and a Pennsylvania field on 9/11.
They say offensive steps by the FBI to locate 9/11 hijackers in advance and defensive airport security measures by federal aviation officials would have combined to prevent at least one death that day. To get a death penalty, prosecutors must show beyond a reasonable doubt that an action of Moussaoui's — his lies, in this case — led directly to at least one 9/11 death.
As a compromise, prosecutors offered to drop arguments that 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 attackers.
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 named terrorists from planes and how those lists evolved. They said Martin had no contact with this witness.
"We don't know whether it is worth us proceeding at all, candidly, under the ruling you made today," Assistant U.S. Attorney Rob Spencer said in an unusually blunt assessment during a conference call Tuesday. Spencer added that continuing under these conditions would "waste the jury's time and the court's time, and we're all mindful of the expense of this proceeding."
If Brinkema refuses to budge, it's not clear what appeals remain open. Defense attorney Edward MacMahon said the government can't appeal Brinkema's ruling to the 4th U.S. Circuit Court of Appeals in Richmond now that the trial is under way.
Carl Tobias, a law professor at the University of Richmond, said prosecutors might ask the appeals court for a rarely used common law relief order called a writ of mandamus, but such orders are granted only in extraordinary circumstances.