Bad News in the Moussaoui Sentencing Trial

Many of you have already been following this, undoubtedly, but the sentencing trial of 9/11 conspirator Zacarias Moussaoui hasn't been going well. Moussaoui previously pleaded guilty to conspiring in the 9/11 plot, and the current trial will determine whether he gets life in prison or death. Given that Moussaoui proudly shouted "I am Al Qaida" and other similar statements at several times during jury selection, one may have expected the result to be rather certain. However, a couple of incidents of misconduct by the U.S. prosecutors has lead to a seemingly real possibility that the judge in the case will dismiss the death penalty proceedings entirely and sentence Moussaoui to life.

The latest government transgression occurred when a prosecutor improperly coached witnesses from the Federal Aviation administration. In spite of a ban on communicating with witnesses imposed by U.S. District Judge Leonie Brinkema, prosecutor Carla J. Martin e-mailed them preparatory comments and parts of the trial transcript (those comments included criticisms of her fellow prosecutor's opening statement). Judge Brinkema fumed that "In all the years I have been on the bench, I have never seen such an egregious violation of a court's rule on witnesses."

That incident follows another in which the prosecution tried to make the argument that Moussaoui should be punished for invoking his right to remain silent until he could consult an attorney. As one might expect, Judge Brinkema sustained an objection to that and is considering a defense motion for a mistrial.

I think it unlikely that Judge Brinkema will dismiss the proceedings entirely or grant a mistrial, but due to the seriousness of the government's misconduct it's not out of the question. Thus, what once seemed a sure death sentence may be on the verge on turning into a historic debacle.