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Judge Postpones Moussaoui Hearing Because of Violation

By Neil A. Lewis


The sentencing trial of Zacarias Moussaoui teetered on the brink of a mistrial Monday, as the judge in the case angrily said she might spare him the death penalty following the disclosure that a government lawyer had improperly coached some witnesses.

“In all my years on the bench, I’ve never seen a more egregious violation of the rule about witnesses,” Judge Leonie M. Brinkema said.

The judge recessed the trial until Wednesday. She said she would rule then on a request from Moussaoui’s court-appointed lawyers that she end the sentencing trial, now in its second week, and order that he be imprisoned for life instead of executed, as the government has urged.

She also scheduled a hearing for Tuesday to look into the improper sharing of information with seven witnesses — some of whom were scheduled to testify for the prosecution and some for the defense. The lawyer involved in the incident was identified by a federal official as Carla J. Martin of the Transportation Security Administration. Brinkema had earlier ordered that people scheduled to testify not be given access to transcripts by prior witnesses, a common order in such cases.

But Martin gave the witnesses transcripts of opening statements and of testimony last week by an FBI agent, Michael Anticev.

Two of the witnesses scheduled to appear for the government were identified as Lynne A. Osmus and Claudio Manno of the Federal Aviation Administration.

The testimony of aviation officials could be crucial because of the unusual nature of the hearing.

Moussaoui, a 37-year-old Frenchman of Moroccan heritage, has already pleaded guilty to six felony counts, three of which expose him to the death penalty. The only question before the jury is whether he should be executed or sentenced to life in prison.

When the attacks of Sept. 11, 2001, were carried out, Moussaoui was in jail, having been arrested three weeks earlier in Minnesota, where he was taking flying lessons. The government has argued that he deserves to be executed because he lied to investigators after his arrest about his knowledge of Al Qaeda plans to fly airplanes into buildings.

The aviation officials were expected to testify as to what steps might have been taken if Moussaoui had told the truth.

At the time of the Sept. 11 attacks, Osmus was the deputy associate administrator of the agency’s Civil Aviation Security Program, and Manno was the director of the Office of Intelligence in that office. After the attacks, Congress transferred the job of aviation security to a new agency, the Transportation Security Administration, but Osmus and Manno are still with the FAA.

Edward J. MacMahon, Moussaoui’s chief defense lawyer, said Martin had been engaged in “an obvious effort to shape the testimony of the witnesses.”

David Novak, a prosecutor, agreed that the disclosures had been wrong. But he argued that the case should go forward and that any problems caused by Martin’s actions could be remedied during cross-examination by Moussaoui’s lawyers.