Wednesday, March 15, 2006
Transportation Security Administration attorney Carla Martin may have single-handedly cratered the government's effort to seek the death penalty against Zacarias Moussaoui for his involvement in the Sept. 11 attacks by passing along transcripts of the proceeding's first day to a number of government witnesses who would be called to testify. U.S. District Judge Brinkema's pretrial sequestration order, issued on Feb. 22, clearly prohibits either side from providing a potential witness with a transcript and bars those witnesses from reading about the trial. The government submitted a number of e-mails (available on Findlaw here) from Martin to the witnesses from the Federal Aviation Administration or TSA that forwarded the transcripts and discussed how they should testify in light of failings she perceived in the government's opening argument. In a March 8 e-mail, Martin states, "Dave [one of the federal prosecutors] is going to have to go over the lack of information sharing with you ON DIRECT EXAMINATION - to blunt the blow of having the defense raise it for the first time on cross, thus weakening your credibility - and I'm specifically speaking of the following issues: . . ." Martin then sets forth her view of what the witness will need to say regarding certain evidence related to whether the government could have prevented the Sept. 11 hijackings.
Martin's discussion may well cross the line between permissible witness prep and what many would view as improper coaching, although the ethics rules in this area -- like many others -- are notoriously vague on the subject. Model Rule 3.4(b) states that a lawyer shall not "counsel or assist a witness to testify falsely," which would not appear to be the case here because Martin wanted the witnesses to present the government's strongest case, but not to falsify testimony. Given that her conduct violated the district court's explicit order on providing witnesses a copy of the transcripts from the case, assuming Martin was aware of that prohibition, she could be found guilty of a criminal contempt.
A hearing on the matter on March 14 revealed that Martin also told Moussaoui's lawyers that two defense witnesses from the TSA were unwilling to meet for a pretrial interview, which was false (see AP story here). Unlike violating the court's order, this could constitute an obstruction of justice under 18 U.S.C. Sec. 1512(c), which makes it a crime for any person who corruptly "obstructs, influences, or impedes any official proceeding, or attempts to do so . . . ." The obstruction statute is not limited to the government's case or its investigator's access to evidence. That may explain why Martin asserted her Fifth Amendment right and refused to testify at the hearing on March 14.
If the government cannot continue its prosecution of Moussaoui due to the district court's exclusion of witnesses because of Martin's misconduct (order here), then the focus will shift to her, and a criminal investigation is likely. (ph)