Thoughts On the Moussaoui Trial’s Recent Developments

So Carla Martin, the TSA attorney at the heart of the Moussaoui witness fiasco, has been placed on paid administrative leave. This is not surprising. I suspect Francine Kerner, TSA’s Chief Counsel, had no choice but to do so (but don’t know that for a fact, of course, being relatively unschooled in the ways of the federally-employed). (I met Ms. Kerner at AAAE last fall as well as some of her staff attorneys – I’m not sure if Ms. Martin was among them, but I don’t recall seeing her, judging from published photographs).

I think I’m going to take some heat for saying this, but – here goes:

It’s hard for me not to feel a moderate, if not significantly larger, degree of sympathy for Ms. Martin.

Let me be clear. I don’t condone her actions, if the allegations are true (it seems to have been accepted as gospel by Judge Brinkema, the prosecution, and most media outlets that they are, but, again – I don’t know that for a fact). Nor do I think she can be excused on the grounds that she wasn’t aware of the judge’s order; the rule on witnesses is fairly commonplace, if not ubiquitous, and this can’t be the first time she came across it.

No, my sympathy stems from a deeper place, and it’s based on my reading between the lines – a lot. Reading this article, and this one, in context of the larger picture of the Moussaoui circus trial, a picture emeges (at least in the movie theater in my brain) of a woman with a strong sense of self, a zest for her work, and a desire to be seen as an expert. And all of that resonates with me, big time.

Did she mean to derail this trial? It seems obvious to me the answer is "of course not." I can’t fathom that she meant to do anything but help secure the outcome sought by the administration. Therefore, the consequences of her actions (both personally and to the trial), while understandable and foreseeable, seem overwhelming to her, I’m sure.

Has any lawyer ever not been in a similar position? Of having blundered, or almost blundered, or having contemplated blundering, into an area that, in hindsight, would have produced disastrous results? Did you ever start to open your mouth in a client meeting when you were a first-year associate, and later thank God you didn’t because you were about to misstate the law in such an obvious way as to have made your boss sorry he hired you? Did you ever toy with filing a motion you later learned would have gotten you disbarred? These examples are deliberately extreme. What Ms. Martin stands accused of is extreme. But we’ve all come close to making mistakes, and every single one of us has made them – some of them real doozies, I’m sure.

What’s about to happen to Ms. Martin is also extreme – extremely serious, extremely stressful, extremely unpleasant, and extremely detrimental to a career she obviously cares deeply about. It’s also extremely appropriate, in every sense, and while I wish her well, and feel some empathy for her plight, there’s a tiny part of me that wonders how many others engage in activities that bad, and worse, every day, and wishes they came with warning labels.

BREAKING: Brinkema Allows Gov’t To Proceed But Without Key Witnesses

Judge Brinkema decided not to delay her ruling, in light of Carla Martin’s attorney’s statement that his client would be unavailable to testify today or tomorrow. Rather, she ruled that the government’s death penalty case against Moussaoui would be allowed to continue – but without the aviation witnesses she declared to be "irremediably contaminated" as a result of Martin’s actions.

More details emerged about the scope of Martin’s alleged coaching today. One witness reported he had been instructed outright by Martin not to testify for the defense, and two others had been represented by Martin to the defense team as being unwilling to speak with the defense. Apparently, Martin attached portions of the proceedings’ transcripts to the emails that were disclosed earlier. Prosecutors had previously acknowledged the impropriety of the actions at issue, but tried to argue that it made no difference to their case – that the "coaching" had no impact. (One witness indeed testified to as much earlier today.) Brinkema acknowledged, in turn, that Martin was not part of the prosecution team, but said, essentially, that it made no difference – they all work for the United States government, and it was the U.S. government seeking to put Moussaoui on death row.

Update on Moussaoui Trial

Judge Brinkema was scheduled to interview the seven allegedly coached witnesses and the TSA lawyer, Carla Martin, who allegedly did the coaching today. The judge has excused Martin, who has not been able to retain an attorney to assist her yet (remember this all went down yesterday) and will question her, I presume, at a later date. Meanwhile, the court’s proceeding with the FAA witnesses. I’ve assembled some links to MSM sources on this developing story below – links are current as of today but that might change at some future date.

More facts are coming out as the day progresses. Martin appears to have been concerned about the opening statement made by the prosecution and warned the witnesses that the statement together with the prosecution’s examination of its first witness had "created a credibility gap the defense can drive a truck through." The email went on to attempt to "head off" future defense attacks by shaping the testimony of the witnesses. Until recently, the CNN article reports, Martin was the government attorney assigned to assist the FAA witnesses.

ed. note: The NY Times article (link below) seems meatier than the AP reports; it also contains some excerpts from the emails (one sent as recently as last Wednesday) that aren’t carried in other sources. Partricularly interesting is this graf:

In one of Ms. Martin’s e-mail messages, dated last Wednesday, she told Lynne Osmus, who was the Federal Aviation Administration’s head of security on Sept. 11, to be careful about her testimony about allowing passengers with short-bladed knives aboard airliners before the attacks. Prosecutors have argued that the F.A.A. might have stopped people with boarding airliners if they had short knives, which they did not do before Sept. 11. Saying that the prosecutors created a wide credibility gap, she told Ms. Osmus, "There is no way that anyone could say that the carriers could have prevented all short-bladed knives from going through." She said the prosecutor "must elicit that from you and the witnesses on direct and not allow the defense to cut your credibility on cross."

Further Updates: There’s an equally detailed followup at NY Times now, describing Ms. Martin’s appearance before Judge Brinkema today: "… like a mourner at a funeral having trouble keeping her composure…" I’ll post my thoughts on this development a little later in the week. Remember: opinions are like … You know.

Read More:

• Moussaoui Judge Quizzes Witnesses on Coaching – CNN
• Lawyer Gets Delay in Moussaoui Hearing – MSNBC
• Judge Calls Halt to Penalty Phase of Terror Trial – New York Times
• Moussaoui Trial Delayed Again – Washington Post

Breaking: TSA Lawyer Brings Moussaoui Trial To Screeching Halt

Breaking News: The judge in the Zacarias Moussaoui case has called a break in the death-penalty trial over certain actions by an FAA TSA lawyer acknowledged by the prosecutor to be "horrendously wrong." The female lawyer, who isn’t is now named in this MSNBC piece as Carla Martin, apparently attended a classified procedures hearing, and then later coached a witness for the prosecution using those classified proceedings, reading part of the opening statements, and even discussing other witnesses’ testimony with the coached witness. Judge Brinkema was described as "angry" and, outside the presence of the jury, stated: “This is the second significant error by the government affecting the constitutional rights of the defendant and the criminal justice system in this country in the context of a death case.” Brinkema established a rule in the beginning of these death penalty proceedings that no witness would have access to any other witness’s testimony prior to testifying; she is said to be considering whether to take the death penalty off the table as a consequence of the FAA  TSA lawyer’s actions.

More updates as they become available. Like, when they get the agency right. And give us the attorney’s name.