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Moussaoui Trial Will Continue Without Key Testimony

MICHELE NORRIS, host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.

ROBERT SIEGEL, host:

And I'm Robert Siegel. The judge is allowing the Zacarias Moussaoui sentencing trial to continue, but given the conditions, she said, she didn't do the prosecution any favors. Federal judge Leonie Brinkema held a hearing today on what damage was done by a government lawyer's improper communication with witnesses. The court is considering whether Moussaoui should get the death penalty. He pleaded guilty to terror conspiracy related to the 9/11 attacks. NPR's Laura Sullivan was at the courthouse in Alexandria, Virginia, and she now joins us in the studio. And Laura, what does this mean to the prosecutor's case for the death penalty?

LAURA SULLIVAN reporting:

Well, this is a major blow for the prosecution. Judge Leonie Brinkema's order stripped their case of all the FAA witnesses, and she has forbidden any discussion of aviation security. This is important because the prosecution said in its opening statement that it planned to argue that if Moussaoui had told the truth when he was picked up on immigration violations before the attack, that the FAA would have launched into action and implemented measures, like better screening, better watch lists. And the prosecution has argued that they would likely have stopped the 9/11 attacks. The prosecution said yesterday that if they were to lose the FAA witnesses, that they would be losing half their case. And that's exactly what's happened.

SIEGEL: Their case, again, for the death penalty. The guilt has already been established by a guilty plea here. What lead to this severe sanction against the prosecution?

SULLIVAN: Well, a day that started off bad for the government only got worse, progressively. First there was a string of witnesses from the FAA that testified that they had, in fact, learned something from the coaching that they had received from a Transportation Security Agency attorney. Then it was discovered that a prosecution lawyer had had a conference call with two witnesses at the same time. Another violation of the judge's orders. That was followed by the disclosure that the prosecution told the defense that they, that the FAA witnesses had refused to talk to them. That turned out not to be true. And Judge Brinkema called that a bald-faced lie. And of course all of this follows a major prosecution error last week, when one of the prosecutors asked an inappropriate question. Brinkema said, in her ruling, I don't think in the annals of justice there has been a case with this many significant errors.

SIEGEL: Well, the judge brought the witnesses into court today to see how tainted their testimony might be. And what happened?

SULLIVAN: Well, the witnesses all said that they would not change their testimony because of the coaching. That they would tell the truth, that the facts were the facts. But Brinkema said in the end that there was simply no way to tell. And it only got worse when several of the witnesses acknowledged that they had, in fact, been reading newspapers and watching television reports further tainting their testimony.

In issuing the ruling, Brinkema said that the prosecution attorneys were not to blame, be blamed individually for what had happened. But she said that the TSA attorney was a government attorney, she was a liaison for the prosecution. These are government witnesses. And she said the government's going to have to bear the burden of this.

SIEGEL: But what happens next in the case

SULLIVAN: Well, at the end of the hearing, one of the prosecutors jumped up and said that they wanted to reserve the right to appeal. And in fact it looks like they're going to. Judge Brinkema has put the case into recess until Monday morning, in order to give the time for their prosecutors to consider whether they want to appeal. And because she's given them, now, three days, it looks like they'll be appealing it to the Fourth Circuit. And she told them if they want to appeal it, to do it quickly.

SIEGEL: Thank you, Laura.

SULLIVAN: Thank you.

SIEGEL: That's NPR's Laura Sullivan who is covering the sentencing of Zacarias Moussaoui in Alexandria, Virginia today. The history of the twists and turns in the Moussaoui case is at our website, NPR.org. Transcript provided by NPR, Copyright NPR.

Laura Sullivan is an NPR News investigative correspondent whose work has cast a light on some of the country's most significant issues.