"This is the second significant error by the government affecting the constitutional rights of this defendant and more importantly the integrity of the criminal justice system of the United States in the context of a death case," Brinkema told lawyers outside the presence of the jury.Apparently the judge in the Moussaui case is very close to dismissing it altogether thanks to what can only be described as sheer incompetence by government lawyers. The judge ordered that witnesses have no access to testimony or opening statements, as "a very important protection of the truth-seeking process." And then a government lawyer e-mailed testimony to 7 witnesses.
Prosecutor David Novak replied that removing the FAA witnesses would "exclude half the government's case." Novak suggested instead that the problem could be fixed by a vigorous cross-examination by the defense.That's about the best the government has now: blame the defense for the prosecution's error. And how bad is that error?
"In all the years I've been on the bench, I have never seen such an egregious violation of a rule on witnesses," [the judge] said.Stay tuned.
Addendum: Rick (in comments) is right, and I should have seen it immediately. The most novice trial lawyer knows you don't discuss trial testimony with other witnesses. Sending such testimony to 7 prospective witnesses looks less like incompetence, than a deliberate attempt to lose and, as Rick says, blame it on a "liberal" judge and 'technicalities.'
Which is a more frightening conclusion than simple incompetence. This story deserves closer attention.
UPDATE: NPR this morning ran a report that blasted the government's handling of this case, with Jonathan Turley quoted as calling it a "train wreck" and 9/11 families complaining It's hard to imagine how this can redound to the Administration's credit, but it's also hard to imagine this level of incompetence. The third explanation is that, since the government revealed this activity, the lawyer who sent the e-mails was being pressured to ensure a death penalty sentence, and the lawyer in charge felt compelled to reveal the mistake to the court (as he was). Which betrays some deep fissures in the Justice Department and the Administration generally, and just bolsters the analysis that incompetence has become the rule in this government.
And doesn't eliminate the explanation of deliberate malfeasance, either.