Death Penalty Sentencing—Moussaoui Controversy

Federal authorities have angered US District Court Judge Leonie Brinkema, who is overseeing the death penalty sentencing of Zacarias Moussaoui, who we discussed last week.^[1] At issue is whether “government violations of her rules against coaching witnesses should remove the death penalty as an option.”^[2] According to Judge Brinkema, 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."^[3]

The violation concerns a Federal Aviation Administration [hereinafter the FAA] lawyer who apparently “coached four government FAA witnesses in violation of the rule set by” Judge Brinkema.^[4] This fact was disclosed by the government.^[5] Judge Brinkema was so outraged by this disclosure that she stated “In all the years I've been on the bench, I have never seen such an egregious violation of a rule on witnesses.”^[6]

Even the federal prosecutor conceded that the witness coaching was "horrendously wrong."^[7] It appears “that a female FAA attorney who had attended closed hearings in the case went over with four coming witnesses from her agency the opening statements at the trial, the government's strategy and even the transcript of the questioning of an FBI agent on the first day.”^[8]

The court is in recess until Judge Brinkema determines whether the death penalty should be removed as an option, whether the FAA witnesses should be removed from the case, or whether the problems can be cured by “vigorous cross-examination.”^[9]

Witness coaching concerns are covered by two different considerations. The first is Rule 615 of the Federal Rules of Evidence [hereinafter FRE], which states that, upon motion by a party, witnesses can be excluded so that they cannot hear the testimony of other witnesses;^[10] sequestration of witnesses is an important tool to preserve honesty at trial. The other consideration is a lawyer’s ethical obligations to not allow false testimony to be introduced at trial.^[11] Under Rule 3.3(a)(3) of the ABA’s Model Rules of Professional Conduct, a lawyer may not knowingly “offer evidence that the lawyer knows to be false,” and if “a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.”^[12]

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[1] Michael J. Sniffen, Judge Unexpectedly Halts Moussaoui Trial, Associated Press (via Yahoo!), Mar. 13, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] FRE 615
[11] See Geders v. United States, 425 U.S. 80, 89-90 (1975).
[12] Rule 3.3(a)(3).