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Moussaoui Judge Will Allow Substitute Witnesses

MICHELE NORRIS, Host:

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

ROBERT SIEGEL, Host:

I'm Robert Siegel. A ruling from the judge in the sentencing trial of Zacarias Moussaoui may save the prosecution from disaster. Today Judge Leonie Brinkema ruled the government may include testimony about aviation security. Earlier this week the judge threw out that testimony after learning that a government lawyer had coached witnesses. Prosecutors will now be able to present their whole case, but without the witnesses they intended. Here's NPR's Laura Sullivan.

LAURA SULLIVAN: This was a big break for government lawyers. Jim Cohen, a trial lawyer and law professor at Fordham University says if he were the prosecutor...

JIM COHEN: I'd be grateful.

SULLIVAN: And if you were the defense?

COHEN: I'd be making sure I'd laid my record for appeal.

SULLIVAN: That's because on Tuesday Judge Leonie Brinkema tossed out the prosecution's key witnesses and evidence. But in today's ruling, Judge Brinkema changed her mind, at least partly. And has allowed prosecutors to call witnesses from the Federal Aviation Administration. Trial lawyer Jim Cohen says the ruling salvages the government's case. Prosecutors need the aviation testimony to show that the 9/11 attacks could've been stopped. They argue the airports would've had better security in place if Moussaoui hadn't lied when he was picked up three weeks before 9/11.

But Cohen says the judge and future appeals courts will be looking to see that prosecutors don't break any more rules.

COHEN: I would say it's incumbent upon them to take their win lightly and to not be a bully.

SULLIVAN: The judge said prosecutors couldn't talk about aviation security because government lawyer Carla Martin sent trial transcripts and pointers to witnesses at the FAA. Martin may also have lied when she said the witnesses refused to speak with the defense. She's been placed on administrative leave from her job with the Transportation Security Administration. Her attorney says she's been wrongly vilified.

Despite the good news for the government, prosecutors will likely have a difficult time finding a witness at the FAA who was not tainted by Martin or by media coverage. Defense attorneys argue there is no rock under which such a person could be found. Prosecutors may also have trouble with the jury who have been out of court now for 10 days.

CARL TOBIAS: Some of us forget what we did yesterday.

SULLIVAN: Carl Tobias is a law professor at the University of Richmond.

TOBIAS: Certainly the jury is, you know, trying to keep in its mind all the factual presentations that have been made and the more that's interrupted, I think the more difficult it is to remember the facts that have been presented.

SULLIVAN: The trial, which will determine whether Moussaoui is executed, is expected to resume Monday morning. Laura Sullivan, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

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