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Moussaoui judge recesses trial as government misconduct puts death penalty on line

[JURIST] US District Judge Leonie Brinkema stunned courtroom observers Monday by calling a recess in the September 11 hijacking trial of Zacarias Moussaoui [JURIST news archive] Monday after being informed that government lawyers had coached witnesses in the case. The government informed the court and defense over the weekend that a Transportion Security Administration attorney had improperly coached four government FAA witnesses contrary to a sequestration direction [PDF].

Brinkema told lawyers "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", and said she would now consider whether the breach warranted removing the death penalty from the government as a sentencing option. Late last week Brinkema warned prosecutors [JURIST report] against making any indication to jury members that Moussaoui was obligated to tell FBI agents about his terrorist connections after his arrest in August 2001, saying they were on "shaky legal ground". AP has more.

11:15 AM ET - The prosecution also informed Brinkema that the TSA lawyer had shown the witness the government's opening statement, contrary to a pre-trial order. Brinkema called the breaches "the most egregious violation of the court's rules on witnesses" she had seen "in all the years I've been on the bench." The Washington Post has more.

Brinkema has already thrown out the government's death penalty case against Moussaoui once [AP report; memorandum opinion, PDF], doing so in October 2003 after the government defied an order to give Moussaoui access to key witnesses against him. The ruling was reversed on appeal and the case remanded.

1:35 PM ET - The jury in the case has been sent home until Wednesday; Brinkema has scheduled a hearing Tuesday to access to what extent evidence may have been tainted by the witness coaching. AFP has more.

3:35 PM ET - A redacted version [PDF] of the US Attorney's March 13 letter to Judge Brinkema on possible breach of her witness sequestration order with copies of the relevant e-mails to witnesses from the TSA lawyer is now available.

7:50 PM ET - The defense memorandum in support of its motion to dismiss [PDF] the death notice based on the government's sequestration violation, and the government memorandum in opposition [PDF], are now both online. The government argues that despite the violation, "dismissal of the death notice is unwarranted and less draconian remedial measures are available to cure any possible taint to the witnesses." There was, the government noted, "no prosecutorial bad faith."

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