I cannot begin to explain how much this is NOT done. When you are a government attorney, you must hold yourself to a higher standard in terms of ethics and maneuvering, precisely because you have a quasi-judicial position in terms of charging decisions and in terms of having the power of the government’s investigative capacity behind you.
The rules are that you do not, under any circumstances, woodshed your witnesses as to other testimony that has been given in the case during the course of a trial. Period. And you absolutely do not do so, under any circumstances at all whatsoever, when there is a court order from the judge prohibiting such discussion.
Defense lawyer Edward MacMahon also elicited testimony Tuesday that prosecutor David Novak had conducted a joint telephone conversation with two coming witnesses, despite long-standing prohibitions against trial witnesses interacting before they testify.
Novak told U.S. District Judge Leonie Brinkema the phone call, which apparently happened after the judge issued rules on witnesses on Feb. 22, concerned only the logistics of trial exhibits and not the substance of testimony.
I am beyond appalled. And every person who has ever been a prosecutor (or criminal attorney on either side of the line) ought to be as well. You may use every resource at your disposal to be certain that a guilty person is investigated, convicted, sentenced and punished in accordance with their criminal conduct — but you are never, EVER, supposed to cheat your way to a verdict.
Osmuss and Manno told the court they had read not only the e-mails but the trial transcript sent by Martin.
Manno said under cross-examination that he had read at least two newspaper stories about the trial and watched four or five TV reports about it until he was told not to, apparently by the prosecution. Prosecutors said they did not routinely advise future witnesses to avoid media coverage in this court district but would start doing so.
Martin also was summoned to the hearing, but had her questioning delayed when she told the judge she had not been able to arrange for her own lawyer. Brinkema had warned her that "you violated a court order and could be held in civil or criminal contempt," and directed her to return with a lawyer by Wednesday morning.
That a state’s attorney would coach witnesses to the point of providing them transcripts of prior witness’ testimony and talking points on how to address particular lines of questioning brought up by defense counsel in a death penalty phase is shameful, wrong, and disgusting. If I were the judge, they’d get the book thrown at them and then some.
The reporting thus far appears to indicate that the Transportation Administration attorney took issue with the trial strategy and opening statements of the DoJ attorneys, and decided to take matters into her own hands and coach witnesses from her own department within the FAA and Dept. of Transportation. This attorney may not have had any criminal experience, and may not have known the extent to which this sort of thing is prohibited…fine, I could buy that, but for one tiny, little thing: there was an order in place from the judge prohibiting just this sort of behind-the-scenes coaching and collaboration.
But today’s testimony also reveals that at least one DoJ attorney was also involved in woodshedding government witnesses as to testimony, trial strategy, and the like — over and above the normal witness preparation which would normally be perfectly acceptable. To get two witnesses on the phone — together — to discuss testimony is to give them a chance to compare notes and "get their stories straight" prior to their testimony in court. To do this in direct violation of a court order is asking for potentially being criminally sanctioned for contempt as well as having the judge ask that your law license be suspended, and to have your case hamstrung or dismissed if you get caught.
When you are a public servant, you owe the public nothing less than the your highest level of ethics and conduct, because you represent the interests of every citizen. When you are an attorney, you also owe a duty of respect in upholding our system of laws and the orders of the court. That an attorney would hold those laws and her public duty so cheaply that cheating would seem an appropriate option — in some win at all costs mentality — might be a symptom of a larger problem within the Bush Administration. But that does not excuse the behavior, nor does it mitigate the fact that it is flat out wrong. Shameful. The judge issued her ruling this afternoon on this, and it was scathing.
"I don’t think in the annals of criminal law there has ever been a case with this many significant problems," Brinkema said. She ruled the trial could proceed after a daylong hearing into whether coming witnesses had been tainted by improper coaching by a federal lawyer last week.
I’ve been raked over the coals a time or two by a judge — generally for something my client did or said in the courtroom, but I have never had a blistering this bad. And I must say, based on everything I’ve read about the misconduct, they deserved what they got and more.
Brinkema added, "More problems arose today that none of us knew about yesterday." She said that her order to isolate planned witnesses from trial transcripts and news reports was clearly violated. She also said she was troubled particularly that one witness sought by defense lawyers was told by federal attorney Carla J. Martin that he could not speak to them and that Martin falsely told the defense that two others were not willing to speak to them. "I wouldn’t trust anything Martin had anything to do with at this point," Brinkema said. She said that the proper remedy was not to eliminate the government’s bid for the death penalty but that the point of the case dealing with aviation security matters was now "irremediably contaminated."
The government can continue putting on its case, but without the transportation and aviation testimony, that have very little else. That was their case. Frankly, I’m not so certain that dismissal of the death penalty phase wasn’t warranted, and I say that as a prosecutor who sees putting bad people away as a very good thing — but it has to be done with integrity and justice, and the government’s attorneys who stepped over the line (and my understanding is that this was a limited number of people and that there are some fairly pissed off DoJ attorneys left holding the remnants of this nasty mess) acted without honor in what they did.