WHAT HAPPENED AT THE MOUSSAOUI TRIAL? . . . Here's a summary what Carla J. Martin apparently did wrong in the Moussaoui trial, according to an account in the New York Times: using email, she sent partial trial transcripts to upcoming witnesses even though the upcoming witnesses had been excluded from the courtroom and the judge had ordered the lawyers not to brief them about what was happening at the trial.

In the Times account, the writer says that Martin "committed a potentially devastating blunder of the sort that law students are routinely warned about: coaching witnesses." That's just some writerly exaggeration. In fact, most law students graduate without ever hearing the first thing about the appropriate method of preparing witnesses for trial. Then later, after they graduate, they learn that it is generally permissible to talk to witnesses before they testify at a deposition or at trial.

Here's what the Times should have said about law students: even before law school, they know that they should follow a judge's orders. Even non-lawyers know it. The thing I find so puzzling about Martin's reported conduct in the Moussaoui trial is that in apparently violating the judge's order, she did it using email. Communicating by email creates a paper trail that's not very hard to follow and is very hard to deny.

If you were going to intentionally violate the judge's order in the Moussaoui trial, wouldn't you meet with the upcoming witnesses in, say, a dark parking garage or at least use the telephone? That's why I think Martin's conduct seems so mysteriously boneheaded: a government lawyer so convinced she's right in a death-penalty-terrorism case that she's willing to break the rules, but so incompetent she can't figure out how to do it right.

It's the stuff of which conspiracy theories are made. Meanwhile, I don't know whether Martin really is boneheaded or incompetent; she hasn't had a chance to explain herself. The Washington Post, however, quotes the judge as follows: "I don't think in the annals of criminal law there has ever been a case with this many significant problems." The Post also notes something else that Martin did, which if true can't be blamed on simple incompetence: she was responsible for a false report that certain witnesses had refused to meet with the defense lawyers. In court, the judge called this a "baldfaced lie" and surprised Martin with a Miranda warning.

High drama, huh?

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Comments

[Air Bear]

Flouting the legal system in an incompetent boneheaded manner. This is the great hallmark of the entire Bush Administration.

[Edward Hasbrouck]

"Boneheaded or incompetent" or not, she had reasons for her actions. One doesn't need a "conspiracy theory" to see them as perfectly consistent with the TSA's legal and political efforts, since its creation, to avoid having the efficacy of its "watch lists" and other "security" measures subjected to judical scrutiny and fact-finding on whether they are actually intended or likely to make us any safer. The worst-case scenario for the TSA wasn't having Moussaoui allowed to live. The worst case, to be avoided at all costs, was a jury verdict that the TSA's schemes wouldn't have saved any lives.