You'd think that in a trial as high-profile as this one, where failure to get a death penalty conviction would be considered the ultimate in incompetence, that the prosecution would be making sure that they followed every rule, avoided every appealable opportunity imaginable.
You would be wrong.
An angry federal judge unexpectedly recessed the death penalty trial of confessed al-Qaida conspirator Zacarias Moussaoui to consider whether government violations of her rules against coaching witnesses should remove the death penalty as an option.
More below
The stunning development came at the opening of the fifth day of the trial as the government had informed the judge and the defense over the weekend that a lawyer for the Federal Aviation Administration had coached four government FAA witnesses in violation of the rule set by U.S. District Judge Leonie Brinkema. The rule was that no witness should hear trial testimony in advance.
"This is the second significant error by the government affecting the constitutional rights of the defendant and the criminal justice system in this country in the context of a death case," Brinkema told lawyers in the case outside the presence of the jury.
Remember in the early days following the 9/11 attacks, when everyone at Justice was talking tough about this trial. The question wasn't whether or not Moussaoui would be executed, it was whether or not Dubya would handle it personally, with a pistol.
I don't know what it is that has caused these repeated snafus--maybe it's arrogance, the idea that no judge would ever actually toss part of this case because he or she wouldn't want to be known as the judge who let al Qaida walk.
On a side note, this kind of prosecutorial misconduct is a large part of the reason I'm anti-death penalty.