Angry judge questions U.S. death case against Moussaoui

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ALEXANDRIA, Virginia (CNN) -- An angry federal judge abruptly adjourned the sentencing trial of al Qaeda conspirator Zacarias Moussaoui on Monday and is considering whether to declare a mistrial or drop the death penalty as an option.

U.S. District Judge Leonie Brinkema will hear testimony Tuesday from witnesses whose testimony was coached in violation of court rules.

"I do not want to act precipitously," Brinkema said in scheduling the special hearing Tuesday. But she added that the government's error was "egregious" and it was "very difficult for this case to go forward."

Moussaoui's attorneys asked the judge to declare a mistrial or take the death penalty off the table, arguing that Moussaoui has been deprived of a fair trial.

A lawyer for the Transportation Safety Administration, Carla Martin, e-mailed transcripts to witnesses, prosecutors disclosed Monday in a letter to the judge and Moussaoui's defense.

According to letter, seven current and former employees of the Federal Aviation Administration were sent transcripts from last week's opening statements and first four days of testimony.

Brinkema said the e-mails "blatantly" violated her February 22 order stating that no trial witness "may attend or otherwise follow trial proceedings, such as read transcripts, before they are called to testify."

Martin is a government lawyer but is not on the prosecution team.

"We cannot control the actions of an attorney from the FAA," prosecutor David Novak argued.

The affected witnesses include Lynne Osmus, who became the FAA's assistant administrator for security and hazardous materials in 2003, and her deputy, Claudio Mano.

Three of the FAA witnesses are on the government's witness list, and four are on the defense's. "It's half our case," a member of the defense team said.

Toobin: 'Totally inappropriate'
CNN senior legal analyst Jeffrey Toobin said making the transcripts available to witnesses was "just totally inappropriate."

The effect, he said, was the same "as if these witnesses were listening to the testimony of other witnesses."

The judge voiced her displeasure in court on Monday.

"In all the years I've been on the bench, I have never seen such an egregious violation of a rule on witnesses," Brinkema declared.

Defense attorney Edward MacMahon asked Brinkema to drop the death penalty as an option, or to declare a mistrial.

"This isn't going to be a fair trial," he said.

Moussaoui pleaded guilty 11 months ago to conspiring with al Qaeda to hijack planes and commit other crimes. The sentencing trial is being held for the jury to choose between execution or life in prison without possibility of release.

To obtain the death penalty, prosecutors must first prove Moussaoui took an action that led directly to deaths on September 11.

Moussaoui denies he had any role in September 11 and says he was training for a possible future attack on the White House.

Prosecutors argue that Moussaoui deserves to be executed because his lies contributed to nearly 3,000 murders on September 11, 2001. The defense argues that Moussaoui was under no legal obligation to confess.

Judge: 'Second significant error'
Brinkema noted that the witness coaching violation was "the second significant error of the government affecting the constitutional rights of this defendant." She added that it affects the integrity of the criminal justice system in the United States.

The earlier error, which Brinkema still has under consideration, occurred last week during the questioning of Minneapolis FBI Agent Harry Samit.

Samit, the government's centerpiece witness, told jurors last week that Moussaoui repeatedly lied during questioning after he aroused suspicion at a Minnesota flight school.

Moussaoui denied that he belonged to any terrorist group, and gave weak explanations of who his associates were, Samit said.

Samit said the FBI went on a "wild goose chase" looking for additional information to justify a warrant to search Moussaoui's belongings. If Moussaoui had told the truth "alarm bells" would have gone off, he testified.

The defense asked for a mistrial after prosecutor David Novak asked Samit if Moussaoui had volunteered to call Samit and tell him "the truth" after Samit interviewed him in August 2001.

Moussaoui had not, and the defense objected to the question.

Brinkema did not grant a mistrial Thursday, but warned prosecutors they were heading toward "delicate" legal ground. "I don't know of any case where a failure to act is sufficient for the death penalty as a matter of law," she said.

Attorney General Alberto Gonzales declined to "speculate" on what the judge might do.

Not atypical death penalty case
Toobin said Brinkema's next step likely will "depend on how uncomfortable the judge is with the whole case. I think the biggest problem is that she is uncomfortable with the government's entire theory here."

Moussaoui's is not a typical death penalty case, Toobin explained.

"The death penalty traditionally has been given in the United States -- certainly in recent years under Supreme Court precedent -- to people who kill," he said. "To people who shoot the gun, who wield the knife, and the theory here is very different."

Moussaoui, he pointed out, was in jail on September 11, and the government is arguing that his failure to tell the truth caused the FBI to miss the 9/11 plot.

"That idea of giving someone the death penalty for a failure to act made the judge comfortable and these mistakes raised more problems," Toobin added.

"The judge may simply say, 'This is too much,'" Toobin said. Because the only other option is life in prison without parole, he added, "I think that may push the judge to be even a little more willing to short circuit the trial."

As he was led out of court, Moussaoui said: "The show must go on."