Moussaoui and the Government Litigator

I don’t claim insight on the criminal laws involving terrorism. But terrorists prosecutions, as far as I can tell, tend to reveal that terrorists, or at least the ones who hope to attack America, don’t exactly operate like SPECTRE does in the movies. The massive government effort against them accordingly tends to look unbalanced, a major bureaucratic initiative against a tiny number of marginal outcasts who live in a twisted fantasyland. It’s Max Weber against a particularly vile Charles Bukowski novel.

This may be appropriate criminal law enforcement. But in the Moussaoui case, it has made for a very weird trial, where an unhinged defendant has been paired with a well-resourced and experienced team of defense lawyers. To push the analogy some more, it’s Weberian order against the half-crazy and half-slick. The trial only got weirder when a TSA lawyer helping out on the case got much of the government’s sentencing phase evidence suppressed by prepping a number of witnesses.

I do know something about civil litigation on behalf of the government, but criminal law must be very different. Here’s my takeaway on what the TSA lawyer did:

– she appears to have violated a court order relating to witness prep by emailing a transcript of the opening statement to witnesses, and by briefly summarizing the testimony of another government witness.

– having an agency lawyer advise agency witnesses on the government’s theory of the case and on what they should expect when they go in to testify in court is, as a general matter, essential to government litigation (unproblematically, in my view, this lawyer also theorized about the kinds of questions defense counsel would ask and suggested how to handle them). In fact, I can’t imagine any person going to testify in any civil case without checking with their in-house counsel in this way first. Others disagree.

– I’m surprised that the prosecutors the TSA lawyer was trying to help called her witness prep “reprehensible” and “unfathomable.” Those words will appear in every defense brief related to this issue.

– I recommend sympathy for the bureaucrat; this lawyer’s career is over, there’s talk of not just disbarment, but jail time, she’s been sold out by her co-counsel (and rather incompetently, might I add), the judge seems eager to make her a whipping boy, the case has been affected, and all of this is because she tried to keep her clients informed, through hardly unprecedented short cuts like emailing them all at once and attaching pleadings and other publicly available court documents. She was trying to do her job, but by God, she won’t get to do it any more.

It’s all made a circus even circusier. So here’s my final, larger point: no wonder the government doesn’t want to put the Guantanamo detainees through a similar sort of public process. I doubt that prosecutors and other law enforcement officials relish the prospect of hundreds of wild-eyed Moussaouis getting sophisticated defense teams and some form of public process – and creating hundreds of opportunities for prosecutorial mistakes along the way.

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11 Responses

  1. Bruce says:

    It gets worse: the prosecutors are now calling her behavior “apparently criminal.”

    I’ll defer to you on what’s normal for agency counsel, but you’re saying it’s OK for a government lawyer to tell an agency witness what facts the witness should testify to? That was the impression I got from the e-mail quoted in the Post.

  2. M. Sean Fosmire says:

    You’re right. Witness preparation is a standard and accepted practice, and it is unfortunate that the general public will now get the impression that it is somehow sinister.

    What appears to be the reason that it is a problem here is that the judge issued an order prohibiting any communication to witnesses of certain things, as a kind of super-sequestration order. Perhaps that is common or at least legitimate in criminal prosecutions.

  3. David Zaring says:

    Saw that “apparently criminal” bit – I put it down to Stockholm Syndrome: in infinitely long trials, you start to identify with your captor/judge, and the judge is acting like she’s really outraged about this stuff (again, to my surprise).

    Yeah, not being able to tell a third-party witness why they’re going to testify, what the law of the case is about, what the interests of the client are …. again, criminal law is a mystery, but isn’t that what lawyers do? What could be wrong with “the defense will exploit the fact that the FAA was not clued in to what was going on — you need to assert that we did not necessarily need to wait until we got all available information, that we acted independently, indeed, we had a statutory mandate, to follow up on any issue that we thought was a threat to civil aviation”? That sounds to me like advice and representing your client’s interests. My sense is that civil lawyers go much further in deposition prep. But what do I know?

  4. E says:

    no wonder the government doesn’t want to put the Guantanamo detainees through a similar sort of public process

    Yah, that Bill of Rights sure is a pain in the neck.

  5. Alice Ristroph says:

    The line between responsible witness “preparation” and unethical witness “coaching” may be a fine one. But it’s there, and I’ve never known any lawyer to deny its relevance. Witness sequestration is fairly common in criminal trials. In Texas, for example, either party can exclude witnesses from the courtroom by invoking what is known simply as “the Rule.” Here, the judge gave an order that witnesses not follow the trial by reading transcripts. It appears that Carla Martin emailed witnesses a trial transcript. The protests from both the “Weberian” prosecution and the “slick” defense team are not that puzzling.

    Still, I tend to agree that she’s a pitiable bureaucrat. She screwed up — badly. But her mistake doesn’t seem to warrant the sort of story that the NYT ran on her the other day, for which the Times apparently called former colleagues and even Martin’s mother to get as much dirt as possible.

  6. Christine says:

    I sympathize that her career is over, but she did violate a court order. Knowingly. To make sure that her agency didn’t look bad. She went beyond telling her employees to tell the truth and to expect certain kinds of questioning. I have talked to attorneys who defend persons in criminal trials against the federal government, and they think that Ms. Martin definitely crossed the line and that her actions almost rise to the level of justifying a mistrial. I don’t think mistrials will help future prosecutions against “wild eyed” defendants.

  7. Seth R. says:

    I guess it’s just a sign of how polarized, jaded, and cynical I’ve become with this administration and all its underlings that my first reaction to the news of Ms. Martin being fingered with the blame for this incient was:

    How many days until the truth comes out that the ENTIRE prosecution team was complicit in the violations?

    Of course, I have no grounds for that statement other than the fact that the federal government just seems to be plain overreaching in everything else and it wouldn’t be much of a stretch for them to be overreaching here.

    That, and the fact that this prosecution team already jeopardized their case long before today’s news by engaging in inappropriate questioning at trial.

    Anyway, I’m skeptical that Ms. Martin was the only screw-up in this trial. The word “scapegoat” comes to mind.

  8. Bruce says:

    “you need to assert that we did not necessarily need to wait until we got all available information, that we acted independently”

    What if the witness doesn’t actually believe that? Do they still “need to assert” it?

  9. David Zaring says:

    Seth – I agree, but prosecutors may know more about getting around sequestration orders than civil litigators do when they prep witnesses. Alice, Christine – no question, she violated the letter of the court’s order – but the transcript emailed was of the opening statement, not of witness testimony (the brief review of an FBI agent’s testimony, however, that’s pretty sketchy), nor, I think would these FAA employees have been testifying about the same factual event (e.g., was the defendant in NYC on date blah). Bruce, if a witness is appearing as a representative of an agency, then I would have thought an agency lawyer could make sure that the employee’s understanding of agency policy was in fact consistent with said policy.

    Whew! That was fun!

  10. Bruce says:

    The analogy, I suppose, is a 30(b)(6) deposition prepped by in-house counsel. The general counsel may be in just as good a position with respect to some “facts” as the witness. I don’t have a good sense of what the limits are in that case, having never participated in a 30(b)(6) depo, certainly not in-house.

    But is that how these witnesses were appearing — to testify to FAA policy? It looks different from the e-mails. It looks like she’s talking about facts that the witnesses, I would guess, know at least as much about as she does.

  11. David Zaring says:

    I think they would have testified to what the FCC would have done if they had known about M – so that seems emnployment capacity related to me.