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It’s hard not to feel sorry for U.S. District Judge Leonie M. Brinkema. Faced with the difficult challenge of conducting the death penalty trial of confessed al-Queda conspirator Zacarias Moussaoui, she could reasonably expect and demand top-notch lawyering. Instead, she has had to deal with “Keystone Kops” advocacy in this sensitive, high-profile case. It is yet another embarrassment in the administration’s “war on terrorism,” and a dramatic lesson for trial lawyers everywhere. Moussaoui was arrested just weeks before the attacks of Sept. 11, 2001, after his behavior at a flight school aroused suspicion. He pleaded guilty a year ago to being part of a broad al-Queda plot, but said at the time he was not part of the 9/11 plan. Last week, in his dramatic trial testimony, he reversed course and said that he was. To get the death penalty, prosecutors must prove that his initial lies about being a flight student allowed the 9/11 plot to succeed. Thus, until this testimony, officials of the Federal Aviation Administration, now part of the Transportation Security Administration (TSA), were to be important witnesses for both sides. As a common precaution in a criminal case, Brinkema issued a written order barring witnesses from receiving trial transcripts or other information about the trial, including news accounts. TSA lawyer Carla J. Martin, who had been acting as the government’s liaison with these witnesses, was in the courtroom when the judge issued the order. Yet Martin then sent a series of e-mails providing these witnesses trial transcripts, and instructing them on how to testify. In doing so, she apparently ignored or violated both the legal and ethical limits on the critical task of witness preparation. The legal issue is the clear and well- established rule on sequestration of witnesses. Rule 615 of the Federal Rules of Evidence provides that, “at the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses.” Separating witnesses deters them from improperly shaping their testimony and is, in the words of the great legal scholar John Henry Wigmore, “one of the greatest engines that the skill of man has ever invented for the detection of liars in a court of justice.” It is so widely recognized that trial lawyers commonly refer to it simply as “the rule.” Preparation v. coaching The ethical issue involves the distinction between witness preparation and improper coaching. Preparation is the challenging-and often overlooked-process of helping a witness to translate his or her knowledge to the unnatural, often counterintuitive, language of question and answer. Coaching is telling a witness what to say. As one old saying puts it, the lawyer’s duty is to “extract facts from the witness, not pour them down his throat.” This issue is all the more critical in a criminal case, where the rights of the accused should be closely guarded. Drawing the line between preparation and coaching can sometimes be difficult, but it is a necessary process for all trial lawyers. Martin apparently ran roughshod over both issues. Worse, like the Federal Emergency Management Agency administrators in the face of Hurricane Katrina, she seemed more concerned with her agency’s image than anything else. She sent the witnesses transcripts of the government’s opening statement, then criticized government lawyers for exposing the TSA to potential criticism. She also gave them strategies and answers to deflect likely defense questions. She then further compounded her violations by falsely stating that certain witnesses had refused to be interviewed by the defense. Preparing witnesses for any testimony is a lengthy and challenging process. It must be done thoughtfully and lawfully. Yet in this important case, the only prosecution related to 9/11, it clearly was not. Martin created a perfect storm of outrageous conduct, with her violations of the ethical rules compounding her violation of the legal rules on witness sequestration. The result, the judge found, is a case “riddled with error.” As an initial sanction she effectively gutted the government’s case by barring the TSA witnesses from testifying. The judge later modified her sanction, and the defendant’s own bizarre and disturbing testimony essentially made the government’s case for it. But even if the jury imposes the death penalty, her action could lead to years and millions of taxpayer dollars in embarrassing appeals. All because a lawyer ignored these basic rules. Whether she did so out of ignorance or obsession with bureaucratic self-protection or both will likely be the subject of future proceedings. Meanwhile, her misdeeds should serve as a dramatic reminder to all trial lawyers of these fundamental principles. Good witness preparation is an important, and often misunderstood, part of proper trial preparation. Done right, it can ease the difficult and unnatural burden of being a witness and assist the trial process. Done wrong, as here, it can be a disaster. The wife of one 9/11 victim, on hearing of the mess the government had made, was quoted saying, “I felt like my heart had been ripped out . . . .I felt like my government let me down one more time.” The victims, the country and the trial process all deserved better. Dan Small is a partner in the Miami office of Philadelphia-based Duane Morris. A former federal prosecutor, he wrote the American Bar Association manual Preparing Witnesses (2d edition 2004 ). Small presents CLE programs around the country on this subject, and is a frequent media commentator.

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