Update: The AP reports on Ms. Martin's actions. It's inconceivable to me that she didn't know better.
Martin's e-mails to the upcoming witnesses included excerpts of the government's opening statement and Martin's assessment that the opening statement "has created a credibility gap that the defense can drive a truck through." She expressed concern that FAA witnesses would be made to look foolish on cross-examination and warned them to be prepared for certain topics.
[Judge] Brinkema said the violation was compounded by the fact that Martin e-mailed the witnesses jointly, violating standard practice against joint interviews of witnesses.
The prosecution is suggesting this fix:
Of the seven witnesses whose testimony was potentially tainted, three were expected to be government witnesses and four were expected to be defense witnesses. Novak suggested that, in lieu of dismissal, perhaps two of the government's witnesses should be excluded from trial and the defense could present its FAA witness evidence through a stipulation rather than by testimony, meaning the defense witnesses would not be subject to cross-examination.
My view: This case is toast. The Judge now has to exclude all of the Government's witnesses, and these witnesses were the Government's only hope of winning the death case. All of them were tainted by receiving Martin's assessment of the case and suggested strategies for their testimony.
The Judge should toss the death penalty now and set a date to sentence Moussaoui herself. It's not the Government's first misconduct in this case.
Brinkema said she also would reconsider the defense's request of last week for a mistrial - made after a question from Novak suggested to the jury that Moussaoui might have had an obligation to confess his terrorist connections to the FBI even after he had invoked his right to an attorney.
She noted that when Novak asked the question Thursday, she ruled it out of order after the defense said the question should result in a mistrial. The judge warned the government at that point that it was treading on shaky legal ground because she knew of no case where a failure to act resulted in a death penalty as a matter of law.
"This is the second significant error by the government affecting the constitutional rights of this defendant and, more importantly, the integrity of the criminal justice system in this country," Brinkema said Monday.
I don't think the Judge should declare a mistrial and allow the Government to begin again with a new jury when its witnesses have been so tainted. They've been coached and they are not likely to forget it. I think she needs to declare a mistrial and dismiss the death penalty count -- and then sentence Moussaoui herself on his guilty plea. It's what should have happened in the first instance.
I can't wait to see which former prosecutors go on tv tonight and try to salvage the Government's case.
Update: Forbes.
Update: The Prosecution's response to the Defense motion to dismiss the death penalty charge is here (pdf.)
