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Almost from the beginning, the goal was clear: Zacarias Moussaoui must die. This was the government’s first, and likely only, chance to prosecute a suspect in the Sept. 11 plot in a U.S. court. And from the start, doing so would present a monumental challenge to federal prosecutors. With the world watching, the pressure would be enormous. Pursuing a death sentence meant raising the stakes in what already was considered the highest-profile criminal case ever in the United States. For the team of three federal prosecutors it meant facing an unprecedented task: convincing a jury that Moussaoui should be executed even though � by their own admission � he wasn’t directly involved in the attacks on the World Trade Center and the Pentagon. “I think they have had a difficult hand dealt,” says Larry Mackey, a former prosecutor who played a lead role in the trials of Oklahoma City bombers Timothy McVeigh and Terry Nichols. The government’s decision to seek death was scrutinized from the outset and continued to be so even after Moussaoui pleaded guilty, in April 2005, to participating in a conspiracy to commit acts of terrorism in the United States. But last week it became clear just how precarious the argument for death was. The government’s case was in jeopardy of crumbling midway through the penalty phase of the trial after Transportation Security Administration lawyer Carla Martin allegedly tampered with government witnesses. Martin, a veteran government lawyer who served as the prosecution team’s liaison to a number of key witnesses from the Federal Aviation Administration, is accused of coaching witnesses on their testimony and giving them transcripts of the trial � a direct violation of an order by U.S. District Judge Leonie Brinkema. If the blunder results in Moussaoui being sentenced to life in prison rather than death, a large dose of the blame will fall on Martin but also � fairly or unfairly � on federal prosecutors Robert Spencer, David Novak, and David Raskin. For the question remains, If the witnesses Martin dealt with were so critical to the case, why did prosecutors allow her to operate with little oversight? And if the government’s case for death was so convincing, how could her conduct completely blow it apart? The three assistant U.S. attorneys have spent thousands of hours managing the case, and though they took pains to distance themselves from Martin last week, the prosecution clearly worked closely with her. Her name appears on at least one government filing in the case. “At the end of the day all responsibility rests at their doorstep,” says Mackey of the trial lawyers. “Having said that, they must be tearing their hair out that another government lawyer could do this.” Decision for death The fact that Martin’s missteps could unhinge a case that was years in the making is telling. Many believe the case was weak from the start. It’s possible the prosecutors didn’t agree with the decision to seek death in the first place. “These are political decisions,” says John Zwerling, a criminal defense attorney in Alexandria, Va. “The shots are being called at the very highest level of our government � the president, the vice president, and the attorney general. The prosecutors have to march to their orders, and whether or not they believe in it is irrelevant.” In March 2002, three months after Moussaoui’s indictment on terrorism charges and just six months after the attacks, then-Attorney General John Ashcroft signed off on the decision to seek the death penalty, reaffirming a commitment to “carrying out justice.” At the time, Moussaoui’s possible connection to the attacks was still unclear, though he was repeatedly referred to in news articles and government statements as the alleged 20th hijacker. Having been arrested on immigration charges in August 2001, Moussaoui was sitting in a jail cell when terrorists carried out the deadliest terror attack ever in the United States. Moussaoui, who has repeatedly proclaimed his allegiance to Osama bin Laden, denies any involvement in Sept. 11. Instead, Moussaoui claims he was to take part in a second wave of terror attacks by crashing a plane into the White House. As the case progressed, the government’s argument for death emerged: Had Moussaoui divulged his knowledge of the attacks, the government could have thwarted the plot, saving thousands of innocent victims. Despite the obvious legal hurdles, many Americans supported the decision, believing Moussaoui should die for his close ties to the Sept. 11 conspiracy. But some objected, claiming the move was politically motivated � a way for the Bush administration to hold someone accountable for the attacks. Others said it was an effort to avenge the victims on behalf of their families, and, indeed, the Moussaoui penalty phase has often been referred to as the families’ “day in court.” Now, more than four years later, the debate continues over whether the government overstated its case against Moussaoui to justify seeking death. Once he pleaded guilty, if the government had simply signed off on sending him to prison for life, the current trial in Virginia would not have been necessary. And in the minds of some, life in prison would avoid making him a martyr. Neal Sonnett, a former Criminal Division chief for the U.S. Attorney’s Office in the Southern District of Florida, believes the case for a death sentence is weak. “Had everything gone perfectly, the burden that the prosecution has to meet to get the death penalty is a very strong burden, and it was unlikely that they were going to meet it here,” says Sonnett, now a white-collar criminal defense attorney based in Miami. Assembling a team Before the Sept. 11 attacks, the U.S. Attorney’s Office for the Southern District of New York in Manhattan had handled nearly every major terrorism trial of the modern era � from the 1993 World Trade Center bombing to the American embassy bombings in East Africa. But after the attacks, the Justice Department decided to make the U.S. Attorney’s Office for the Eastern District of Virginia the hub of terrorism prosecutions. There were several reasons for the choice. Virginia juries had a reputation for being sympathetic to prosecutors, the federal court in Alexandria was known for quickly moving cases through its “rocket docket,” and Alexandria lay just across the Potomac from Washington � where prosecutors would have easy access to their colleagues at Main Justice and the myriad federal agencies that would become involved in any trial. There also was a sentiment that the federal courthouse in Manhattan, which sits just blocks from the World Trade Center site, would not be an easy venue in which to hold a fair trial. “There was the usual competition for cases, and somebody has to win and somebody has to lose,” says Andrew McCarthy, a former terrorism prosecutor in the Southern District of New York. “The thing you have to remember . . . at the time those decisions had to be made, there were other things going on that were a lot more important than the usual turf fighting that we had in the 1990s.” Moussaoui’s December 2001 indictment was signed by three officials representing each DOJ arm involved. There was Paul McNulty, the Eastern District of Virginia’s new and politically connected Republican U.S. attorney (who has since been nominated to the DOJ’s No. 2 spot); Mary Jo White, the outgoing Clinton-era U.S. attorney in New York whose office had overseen the first World Trade Center bombing and East African embassy bombings; and Michael Chertoff, the head of the Criminal Division at Main Justice in Washington and a former U.S. attorney in New Jersey. McNulty has appeared in the courtroom at key stages of the case and from the start saw the trial as an opportunity to prove that the federal court system could effectively handle terrorism cases. He was alongside the prosecution when Moussaoui pleaded guilty, and again last week when the judge chastised the government for making egregious errors in the case. But observers say that McNulty has served more as a liaison to Main Justice in the matter, rather than as a day-to-day manager. A spokesman for the U.S. Attorney’s Office declined to comment. The line prosecutors ultimately chosen for the trial team reflected the division of labor between the two U.S. attorney’s offices. Two of the federal prosecutors on the team would come from Virginia, and one from New York. Leading the prosecution is Robert Spencer, chief of the Eastern District’s Criminal Division. Spencer joined the federal prosecutor’s office in Alexandria in 1995 as an assistant U.S. attorney, handling high-profile murder and violent gang cases. Spencer presented the government’s opening argument on day one of Moussaoui’s trial. One former colleague says that Spencer is “among the most ethical and persuasive assistant U.S. attorneys in the nation.” Spencer has prosecuted a number of other terrorism cases, including that of Ahmed Omar Abu Ali, an American college student convicted last year of conspiring with al Qaeda and plotting to kill President George W. Bush. He also played a role in prosecuting the “Virginia Jihad Network,” which resulted in numerous convictions and guilty pleas from Islamic extremists living throughout the Washington metropolitan region who underwent training to join the Taliban. The second prosecutor from Virginia is David Novak, considered a specialist at the Justice Department in death penalty cases. Throughout much of the case, Novak personally has interviewed many of the victims’ family members. Last week it was a visibly shaken Novak who stood for the prosecution in court to explain how Martin had violated the judge’s order on witnesses. Novak himself is no stranger to ethics issues. In 1993, while he was working as a federal prosecutor in Texas, a defense attorney for Rogelio Rodriguez, an alleged Mexican money launderer, filed a formal complaint with Justice’s Office of Professional Responsibility charging Novak with a number of ethical breaches during trial. The defense attorney, Kent Schaffer, a Houston solo practitioner, accused Novak of misrepresenting Rodriguez’s statements to an undercover agent about a planned trip. He also charged that Novak lied to the judge about Rodriguez’s desire to cooperate with the government, in an effort to meet with the defendant without his lawyer present. Novak was exonerated in the investigation, according to Schaffer, who last week called the OPR’s decision in the matter a whitewash. Rodriguez was later acquitted of the charges. Novak declined to comment for this article. OPR investigations are generally kept confidential, but this one entered the public domain when Novak filed a libel suit against Schaffer in 1995, calling Schaffer’s letter “defamatory.” Novak would also file a second libel suit that year, against a defense witness in another Texas money-laundering case who had written to then-Attorney General Janet Reno to accuse Novak of “misplaced vindictiveness” in his prosecution of defendant Antonio Giraldi. Both suits were dismissed within months of each other, in the spring of 1995. The New York U.S. Attorney’s Office was initially represented on the trial team by Kenneth Karas, a Southern District terrorism veteran who had taken a lead role in the prosecution of the embassy bombings case. But in 2003, Karas was nominated to a seat on the federal bench in New York. He was replaced on the team by David Raskin, an up-and-coming prosecutor who had joined the Southern District in 1999 and quickly earned a spot in its elite organized crime and counterterror unit. An avid amateur baseball player and former catcher on his college team at Ithaca, Raskin was known for pulling long hours and had been part of the prosecution team that took down 70 members of the Genovese crime family in New York. Those who worked with Raskin praise him for his judgment and dedication to his job. “Often in the Southern District you’ll get some fairly cerebral types,” says David Burns, a former Southern District prosecutor who worked with Raskin. “Dave is one of those former-athlete types.” Throughout the Moussaoui case, Raskin has written a number of the briefs filed and presented key arguments along the way. Who to blame? Seeking the death penalty for Moussaoui has been an uphill battle from the start. Early on in the case, Brinkema took capital punishment off the table, but the prosecution fought the decision, and the U.S. Court of Appeals for the 4th Circuit agreed to restore execution as an option. With the help of hundreds of government lawyers from various federal agencies, the prosecution team interviewed thousands of witnesses and sorted through more than 1 million documents to build the case against Moussaoui. Then, last week, the prosecution was dealt a blow that threatened to derail the entire case. Citing the misconduct of the TSA’s Martin, Brinkema sanctioned the government by excluding from trial key witnesses and all aviation evidence, which the prosecution acknowledged is the bulk of their case. In a March 14 conference call with the judge, Spencer said without that evidence, “we don’t know whether it’s worth proceeding at all.” Prosecutors filed a motion asking the judge to reconsider, and on Friday, Brinkema agreed to a compromise. The judge upheld the decision to bar all witnesses and aviation-related evidence with which Martin was involved. But she agreed to allow the government to call aviation witnesses “not tainted by Ms. Martin.” The trial is scheduled to resume March 20, and the defense has requested a hearing to further investigate Martin’s conduct. As the prosecution scrambled to salvage its case, the finger-pointing and posturing had already begun. Last week, the TSA was referring media calls about Martin’s violation to Main Justice. Justice, in turn, was referring calls to the Eastern District of Virginia. For now, the prosecution team is pinning the blame squarely on Martin, whose misconduct shut out the government’s key witnesses and crucial evidence. “In this sea of government attorneys and agents who have assiduously played by the rules, Ms. Martin stands as the lone miscreant,” the prosecution wrote in court papers filed last week. Last week, Brinkema informed Martin she could face civil or criminal contempt charges. She also has been placed on administrative leave at the TSA. But portraying Martin as a clueless, rogue lawyer from another agency won’t be a slam-dunk. She was a regular in court, signed her name to at least one of the briefs in the case, and gained prosecution experience during a six-month detail to the U.S. Attorney’s Office in the District of Columbia in 1993. And Martin appears ready to push back. “Ms. Martin has now been viciously vilified by assertions from the prosecution,” Roscoe Howard Jr., Martin’s attorney and a former U.S. attorney in the District of Columbia, wrote in a statement on her behalf. “When her opportunity comes, her response will show a very different, full picture of her intentions.” Sarah Kelley can be contacted at [email protected] Jason McLure can be contacted at [email protected]

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