Bump and Update: Two more al Qaeda members Tuesday say Moussoui had no part in 9/11:

In both cases, for security reasons, their testimony was read to the jury because the government did not want them to appear in court.

Waleed bin Attash, often known simply as Khallad, is considered the mastermind of the 2000 suicide attack on the USS Cole and an early planner of the Sept. 11, 2001, plot. He said he knew of no part Moussaoui was to have played in the 9/11 attacks. Another captured terrorist, identified as Sayf al-Adl, a senior member of al-Qaida's military committee, told U.S. interrogators that Moussaoui was "a confirmed jihadist but was absolutely not going to take part in the Sept. 11, 2001, mission."

It sounds more and more like Moussaoui wants death over life in prison.

Corrected Post: The verdict form below was submitted by Moussauoi's lawyer, not issued by the Judge. It is a proposed verdict form. The Judge may or may not approve it. I have edited the post below to reflect this. Sorry for the confusion.

The proposed verdict form that the defense would like the Court to submit to the jury in the Zacarias Moussaoui case is available here. (pdf) The defense submits that the jury must find the Government has proven all of them to proceed with the death penalty. Here are the key questions (direct quotes):

• Do you, the jury, unanimously find that the Government has established beyond a reasonable doubt that the defendant intentionally participated in an act, i.e. lying to federal agents on August 16-17, 2001.

• Do you, the jury, unanimously find that the Government has established beyond a reasonable doubt that the defendant participated in the act, i.e. lying to federal agents on August 16-17, 2001, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense.

• Do you, the jury, unanimously find that the Government has established beyond a reasonable doubt that victims died on September 11, 2001, as a direct result of the defendant's act, i.e. Mr. Moussaoui's lies to federal agents on August 16-17, 2001.

Zacarias Moussaoui, whom I have often referred to as his own worst enemy, is on the witness stand, testifying against his lawyers' advice. I just finished a Fox News segment on the trial, and will be back online updating this afternoon.

TChris wrote a great post Saturday on Moussaoui and other defendants who insist on taking the stand.

by TChris

As this analysis suggests, the Bush administration's Justice Department may regret seeking the death of Zacarias Moussaoui. Aided by the misconduct of government lawyers, Moussaoui's defenders have skillfully turned government agents into defense witnesses, focusing attention on the government's belief before 9/11 that Moussaoui had no information of value. Putting aside a legal hurdle that the government may be unable to clear (whether Moussaoui can be executed because he failed to provide self-incriminating information to government agents), the government's own witnesses have made a convincing case that federal agencies would probably not have acted upon any truthful information that Moussaoui provided.

Next week, the defense will present additional evidence that Moussaoui functioned on the fringe of al Qaeda and had no specific knowledge of the 9/11 conspiracy. If the defense rested after presenting that evidence, the case might not make it to the jury. As TalkLeft discussed here, the government's theory of prosecution is shaky, and Judge Brinkema might not be satisfied that a rational jury could find it sufficient to support a verdict of death.

It appears Carla Martin has advised the court she will invoke her 5th Amendment privilege against self-incrimination if compelled to take the stand Monday at a hearing scheduled by the Judge at which she was to explain her actions. The Judge has quashed the subpoena and canceled Monday's hearing.

Her attorney, Roscoe C. Howard Jr., has said Martin is assembling a defense but is not yet ready to explain her actions publicly.

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Original Post 3/24

A new article in the ABA Journal E-Report examines Carla Martin's actions in violating the sequestration order in the Zacarias Moussaoui trial. Several lawyers (including me) weigh in, as does the esteemed George Washington law professor Stephen Saltzburg.

The Judge has directed Martin to be in Court Monday for a hearing on her actions. It's not known if she will testify or invoke her 5th Amendment privilege against self-incrimination.

There was a lot of secrecy surrounding the trial of Zacarias Moussaoui today, but from this Washington Post news account, here's what happened: The prosecution rested, after which the defense made a motion for judgment of acquittal in a sealed hearing, and the trial resumed in open court with the defense calling its first witness. Shorter version: The defense lost it's motion for judgment of acquittal.

I can't find any record of a ruling on this defense motion which was filed Tuesday. I discuss it at length here. Apparently, the Judge has decided to let the Government switch horses in midstream. The defense had claimed the Judge's order reconsidering the admission of the aviation testimony and witnesses has allowed the Government to expand its theory for the death penalty from one that alleges Moussaoui's lies directly resulted in at least one death on 9/11 to one that claims his failure to tell the truth on 9/11 caused a death. As the defense pointed out:

Lawyers for Zacarias Moussaoui had another good day in court today. Retired FBI Agent acknowledged during cross-examination that he had never read another agent's memo, sent to his office, saying he suspected Moussaoui was a possible terrorist with plans to hijack an airline.

Called as a government witness, Rolince, a 31-year FBI veteran who retired last October, proved to be more valuable for attorneys defending the only man charged in this country in connection with al-Qaida's Sept. 11, 2001, attacks on the World Trade Center and the Pentagon....defense attorney MacMahon was able to extract from Rolince more embarrassing revelations about FBI handling of terrorism intelligence before 9/11.

The defense is also asking for the judge to amend the language in its ruling on the aviation evidence. They say the wording of the Judge's order has allowed the Government to expand its theory for the death penalty from one that alleges Moussaoui's lies directly resulted in at least one death on 9/11 to one that claims his failure to tell the truth on 9/11 caused a death. As they note in their motion (pdf) filed today,

FBI Agent Greg Samit turned the tables on the Government at the Moussaoui trial today during his cross-examination by Moussaoui's lawyers.

The FBI agent who arrested Zacarias Moussaoui in August 2001 testified Monday he spent almost four weeks trying to warn U.S. officials about the radical Islamic student pilot but "criminal negligence" by superiors in Washington thwarted a chance to stop the 9/11 attacks.

FBI agent Harry Samit of Minneapolis originally testified as a government witness, on March 9, but his daylong cross examination by defense attorney Edward MacMahon was the strongest moment so far for the court-appointed lawyers defending Moussaoui.

Samit testified he believed Moussaoui was a terrorist but no one would allow him to get a search warrant.

Despite the Court's ruling allowing the death penalty trial of Zacarias Moussaoui to proceed, minus the witnesses tainted by Carla J. Martin, the prosecutor still has an uphill battle in trying to prove that Zacarias contributed to or caused the death of any of the 9/11 victims. The Washington Post has a great editorial, Another Blown Case, on this and other federal terrorism trials to date. Some snippets:

This case nevertheless joins a line of big terrorism prosecutions marred by government misconduct, overzealousness, hyping of charges or just plain ineffectiveness.

• A conviction in Detroit had to be set aside because of prosecutorial misconduct. The government brought spectacular charges against accused Islamic Jihad activist Sami al-Arian, only to see a jury reject many of them -- and convict on none -- after a lengthy trial.

• Then-Attorney General John D. Ashcroft announced the arrest of Jose Padilla with great fanfare as the foiling of a plot to detonate a radiological "dirty" bomb; after holding him for years as an enemy combatant, the government indicted him for far lesser matters.

• Mohamed Qahtani, the Guantanamo Bay inmate the government has labeled the 20th hijacker -- when it wasn't busy making the same claim about Mr. Moussaoui -- was subjected to such abusive interrogation that he probably cannot face trial at all.

Testimony resumes in Zacarias Moussaoui's death penalty trial this morning. Late Friday, the Defense filed a motion (pdf) seeking to have TSA attorney Carla J. Martin brought into court for questioning on her actions. She now has counsel, who has advised the court that she does have matters to bring to the attention of the Court. In a cover letter to prosecutors accompanying the motion, the Defense says:

The purpose of this Motion is to attempt to complete the record as Mr. Howard has publicly indicated that Ms. Martin did not act alone and that she is willing to tell the complete story regarding her conduct in this matter.

The Judge could order Martin to testify Monday, or she could delay it to the end of the trial. I suspect she will delay it.

CNN's background here; LA Times is here.

Judge Lonnie Brinkema has modified her previous order banning aviation evidence and witnesses in the death penalty trial of Zacarias Moussaoui.

Judge Leonie Brinkema in a written order said prosecutors could present exhibits and a witness or witnesses if they are untainted by contact with Transportation Security Administration lawyer Carla J. Martin, cited by Brinkema for misconduct earlier this week when the judge decided to exclude all aviation security evidence. "The government's proposed alternative remedy of allowing it to call untainted aviation witnesses or otherwise produce evidence not tainted by Ms. Martin has merit," Brinkema wrote.

The order is here (pdf). In it the Judge writes:

A government aviation witness may testify as to what the United States government "could" have done to prevent the attacks, had the defendant disclosed in August 2001 the facts that he admitted in pleading guilty. The witness, or witnesses, may not, however, testify as to what the United States government
"would" have done with this information, as such testimony would be unduly speculative and misleading to the jury.

We're back to square one. This case should be dismissed based upon the cumulative misconduct of the Government.

The AP reports on the connection between Carla Martin and the 9/11 civil litigation, and posits that her motive was not to help win a conviction for the Government in Moussaui, but to aid the government's and airlines' defense in the civil ligitation. TalkLeft was the first to raise this theory -- three days ago.

It appears to me Ms. Martin was trying to coach and influence the witness' testimony not to convict Moussaoui, but to prevent the FAA from being found at fault in the civil litigation over 9/11. American and United are hoping for the same result -- hence her collaboration with their lawyers.

Don't forget to check out this letter attached to the defense objection to Judge Brinkema reconsidering Tuesday's ruling excluding the aviation witnesses and evidence. It was written by the plaintiff's lawyers in the 9/11 civil litigation to the New York Judge presiding in that case, and raises these concerns (Further explanation here.)

For a recap: