An Examination of the Unethical Attorney Conduct that Nearly Derailed the Moussaoui Trial

Court Order Violations, Witness Coaching, and Obstructing Access to Witnesses: An Examination of the Unethical Attorney Conduct that Nearly Derailed the Moussaoui Trial

Carter, Felicia

INTRODUCTION

Since the events of September 11, 2001, the United States has only tried and convicted one 9/11 conspirator.1 However, the deatii penalty trial of that convicted conspirator, Zacarias Moussaoui, came to an unexpected standstill during just the second week of the trial.2 On March 13, 2006, the government informed Judge Brinkema, the Eastern District of Virginia judge hearing the death penalty trial of Moussaoui, that Carla Martin, an attorney for the Transportation Safety Administration (“TSA”) working on the case for the government, had improperly communicated with seven witnesses, in violation of the judge’s sequestration order.3 In addition to violating the sequestration order, Martin engaged in conduct that may garner charges of witness tampering4; she also obstructed the defense counsel’s access to witnesses.5

As a result of Martin’s conduct, Judge Brinkema ruled that the Government was “precluded from introducing aviation related evidence, including witness testimony and exhibits.”6 The Government claimed that the exclusion of the aviation evidence “effectively gutt[ed] the prosecution’s argument for the execution of [Moussaoui].”7 After an evidentiary hearing, during which the court considered the government’s Motion for Reconsideration and the defense’s Opposition to the Government’s Motion, the court decided to allow the aviation evidence to be presented by witnesses that Martin had not contacted.8 The TSA subsequently assigned Martin to paid administrative leave.9 At the trial’s conclusion, Moussaoui was sentenced to life in prison.10

The conclusion of Moussaoui’s trial was not the end of professional trouble for Carla Martin. Martin’s conduct could result in criminal and civil charges “ranging from contempt to witness tampering.”11 She is currently under investigation in Pennsylvania, where she is licensed to practice law, by the Disciplinary Board of the Supreme Court of Pennsylvania.12 Additionally, Martin faces several civil lawsuits initiated by seven relatives of September 11 victims.13 Federal prosecutors also investigated Martin but have since decided not to bring criminal charges.14

Martin’s actions were clear violations of the Model Rules of Professional Conduct (“Model Rules”).15 However, courts have discretion in dealing witii unethical behavior in the course of a trial.16 This Note will discuss Martin’s unethical conduct and the court’s response to her unethical behavior. This Note will also argue that the court should not have excluded the witnesses who were improperly contacted and unethically coached but who were otherwise credible witnesses; those witnesses should have been allowed to testify, and vigorous cross-examination would have addressed any taint, or prejudicial influence, created by Martin’s unethical actions. Part I will detail the facts surrounding Martin’s conduct in the Moussaoui case. Part II will discuss how Martin’s conduct contravened the Model Rules. Part III will discuss how Martin’s misconduct could have been addressed adequately with less severe measures than excluding the witnesses. This Note concludes that when witnesses have been improperly contacted and unethically coached but are otherwise credible, the proper remedy is for the court to depend on skillful cross-examination by the opposing attorney to address any effect that the attorney’s unethical behavior may have had on the case.

I. MARTIN’S CONDUCT IN THE MOUSSAOUI TRIAL

This Part of the Note will present the facts surrounding Martin’s conduct during the Moussaoui trial. During Moussaoui’s deatii penalty trial, Judge Brinkema, the presiding judge, issued a special sequestration order for nonvictim witnesses.17 In general, sequestration orders bar witnesses from hearing the testimony of other witnesses.18 Sequestration orders are allowed under Federal Rule of Evidence 615, which provides that:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rale does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party’s cause, or (4) a person authorized by statute to be present.19

Generally, “[s]equestration requires that witnesses not discuss the case among themselves or anyone else, other than the counsel for the parties.”20 Therefore, a general sequestration order allows an attorney to discuss testimony with a witness who has not yet testified.21 Witness sequestration is commonly used because it “effectively discourages and exposes fabrication, inaccuracy, and collusion.”22 In the Moussaoui case, Judge Brinkema issued an order that went beyond a general sequestration order. Judge Brinkema’s order stated that non- victim witnesses that were scheduled to testify “may not attend or otherwise follow trial proceedings (e.g., may not read transcripts) before being called to testify.”23

In contravention of the sequestration order, Martin emailed the transcript of the first day of trial to witnesses scheduled to testify and she discussed and evaluated the first day’s testimony in those emails.24 The testimony of the scheduled witnesses Martin contacted would have established how Moussaoui’s actions and inaction directly contributed the civilian causalities that resulted from the 9/11 terrorist attacks.25 The scheduled witnesses Martin emailed were prepared to testify “as to what the United States government ‘could’ have done to prevent the [9/11] attacks, had [Moussaoui] disclosed in August 2001 the facts that he admitted in pleading guilty.”26 The prosecution claimed that if Moussaoui had divulged the information that he knew about the hijacking plan to the Federal Bureau of Investigations (“FBI”), the Federal Aviation Administration (“FAA”) would have been able to stop the hijackers from boarding the airline flights.27 The scheduled witnesses would have detailed FAA prevention measures such as “‘no fly’ lists, enhanced gate security, and use of the [Computer Assisted Passenger Prescreening System] . . . . “28 Showing a direct connection between Moussaoui’s actions and the capability of the FBI and the FAA to use the information Moussaoui possessed to prevent the 9/11 hijackings, and the resulting loss of life was indispensable for establishing that Moussaoui deserved the death penalty.29

Martin copied “highlights” from the trial transcript and called the scheduled witnesses’ attention to issues she considered substantial “gaps” in the government’s opening statement.30 Martin’s violation of the sequestration order resulted in another ethics violation when Martin gave suggestions to the witnesses regarding how they should testify to bolster the prosecution’s case.31 Martin’s emails centered on three areas: “(1) countermeasures that the FAA could impose to prevent the hijackers from carrying knives on board … (2) information about Hakim Murad flying a plane into CIA headquarters . . . and (3) intelligence sharing including the ‘Phoenix Memo’ and the DCI briefing on Moussaoui. . . .”32 For example, to buttress a claim from the prosecution’s opening statement about the airlines’ ability to prevent knives from being carried on board airplanes that, according to Martin created a “credibility gap” vulnerable to an attack by defense counsel, Martin stated to one scheduled witness:

There is no way anyone could say that the [airline] carriers could have prevented all short bladed knives from going through-[the prosecutor] MUST elicit mat from you and the airline witnesses on direct, and not allow the defense to cut your credibility on cross [examination] … by saying, “do you really believe, as the prosecution has stated, that all knives could have been found, when there are x-thousands of domestic flights daily in the US, that even now post 9/11 the screener detection rates are very law [sic], and that’s all it would have taken to prevent 9/11?33

This is one example of Martin violating the sequestration order by informing a witness of trial proceedings. This is also an example of Martin coaching a witness to conform her testimony so that the witness would not expose a weakness in the prosecution’s argument.

In addition to the sequestration order violation and the unethical witness coaching, Martin obstructed the defense counsel’s access to witnesses. First, Martin encouraged scheduled witnesses not to speak with defense counsel before the trial.34 At least one witness was explicitly instructed by Martin not to speak with defense counsel.35 Then, Martin lied to an Assistant United States Attorney (“AUSA”), stating that “none of the [FAA] defense witnesses [for whom Martin was the liaison] would consent to a defense interview. . . .”36 As a result, the AUSA transmitted this false information to the defense counsel.37 Because the defense counsel relied on Martin’s false information, Martin essentially prevented witnesses from speaking with defense counsel prior to trial, which is a clear ethics violation.38

The prosecution learned about Martin’s interaction with these witnesses when one of the scheduled witnesses, who considered Martin’s communications with her a “hindrance,” alerted the government.39 The prosecution informed the court on March 13, 2006 in an ex parte letter that contained the emails Martin had sent to the scheduled witnesses.40 Following an evidentiary hearing on March 14, 2006, Iudge Brinkema barred the government from presenting any aviationrelated evidence.41 This order severely set back the government’s case because the aviation evidence comprised “one of the two essential and interconnected components”42 of the government’s claim that “Moussaoui deserved to die for his role in the attacks on the World Trade Center and the Pentagon. . . .”43 Shortly after the Order Barring Aviation Evidence, the court considered the government’s Motion for Reconsideration and the defendant’s Opposition, and ruled that the government was “allowfed] … to call untainted aviation witnesses or otherwise produce evidence not tainted by Ms. Martin. . . Z’44 The following section will describe how Martin’s aforementioned acts were violations of the Model Rules.

II. THE ETHICAL IMPLICATIONS OF MARTIN’S CONDUCT IN THE MOUSSAOUI TRIAL

This Part of the Note will detail how Martin’s conduct in the Moussaoui trial violated the Model Rules of Professional Conduct. Martin violated the sequestration order by contacting scheduled witnesses and giving them transcripts of the trial. Violating the sequestration order directly contravenes Rule 3.4(c) of the Model Rules. Rule 3.4(c) provides that ‘”[a] lawyer shall not . . . knowingly disobey an obligation under the rules of a tribunal.”45 An attorney may be exempted from this rule if she offers “an open refusal based on an assertion that no valid obligation exists.”46 Martin chose not to testify and explain her actions at the hearing Judge Brinkema held to gather evidence about Martin’s misconduct.47 Because Martin did not offer any adequate justification for her breach of the sequestration order to the court when she violated the order or at the evidentiary hearing, her disregard of the judge’s sequestration order was a clear breach of the Model Rules.

Another distinct violation of the Model Rules was Martin’s suggestions to the scheduled witnesses regarding how to conform their testimony to assist the prosecution’s case. Witness preparation is an important part of trial preparation because it facilitates a witness’s ability to “deliver their testimony efficiently, persuasively, comfortably, and in conformity with the rules of evidence.”48 The following are thirteen primary objectives of witness preparation:

[H]elp the witness tell the truth; make sure the witness includes all the relevant facts; eliminate the irrelevant facts; organize the facts in a credible and understandable sequence; permit the attorney to compare the witness’ story with the client’s story; introduce the witness to the legal process; instill the witness with self-confidence; establish a good working relationship with the witness; refresh, but not direct, the witness’ memory; eliminate opinion and conjecture from the testimony; focus me witness’ attention on the important areas of testimony; make the witness understands the importance of his or her testimony; teach the witness to fight anxiety, and particularly to defend him or herself during cross-examination.49

There is no “bright line” rule to differentiate witness preparation from unethical witness coaching.50 Customary distinctions between witness preparation and unethical witness coaching include that “[the attorney’s] duty is to extract the facts from the witness, not to pour them into him; to learn what the witness does know, not to teach him what he ought to know,”51 and that “it is unethical to tell a witness what to say . . . but permissible to refresh a witness’ recollection and suggest better ways in which a witness could frame his or her answers.”52

Martin’s actions clearly crossed the line from witness preparation to unethical witness coaching. The following is one example of Martin’s unethical witness coaching excerpted from an email Martin sent to a scheduled witness:

[Y]ou need to assert that we did not necessarily need to wait until we got all available information, that we acted independently, indeed, we had a statutory mandate, to follow up on any issue that we thought was a threat to civil aviation, regardless of whether the IC had any information to share on the subject or not.53

By detailing to a witness what “need[ed] to [be] assertfed],” Martin clearly crossed the line from “ensur[ing] that the witness testifies truthfully, accurately, concisely, and convincingly”54 to “pour[ing the facts] into him.”55

The intended effect of witness coaching is to induce a witness to commit a dishonest act by giving testimony that is not solely of his or her own accounting. Witness coaching implicates Rule 3.4(b) and (f), which provides that “[a] lawyer shall not . . . falsify evidence, counsel or assist a witness to testify falsely,”56 and that “[a] lawyer shall not . . . request a person other than a client to refrain from voluntarily giving relevant information to another party.”57 Therefore, a lawyer may not induce a witness to give testimony that is not solely of her own accounting or to not give testimony that is relevant to the case. Also, witness coaching is considered professional misconduct under Rule 8.4. Rule 8.4 provides that “[i]t is professional misconduct for a lawyer to . . . violate or attempt to violate the Rules of Professional Conduct,”58 to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation,”59 or to “engage in conduct that is prejudicial to the administration of justice.”60 Therefore, Martin’s violation of Model Rule 3.4(b) and (f) and her inducement of witnesses to fraudulently testify constitute professional misconduct. Inducing the witness to fraudulently testify is also professional misconduct because fraudulent testimony prejudices the justice system by frustrating the search for truth.

Another violation of the Model Rules that Martin committed was obstruction of the defense’s access to witnesses. A witness is not obligated to submit to an interview before trial, and an attorney may inform a witness of that right.61 However, an attorney may not request or induce a witness to refuse to be interviewed.62 Martin’s conduct in the Moussaoui trial directly contravenes Rule 3.4(a). Rule 3.4(a) provides that “[a] lawyer shall not . . . unlawfully obstruct another party’s access to evidence. . . . “63 Martin’s ties about the witnesses’ willingness to talk to the defense attorneys blocked the defense’s ability to gather evidence from the witnesses.

When Martin told one witness not to speak to the defense counsel and encouraged other witness not to speak to the defense counsel she violated Rule 3.4(f) because an attorney cannot forbid a witness from speaking to the opposing counsel.64 This behavior would also be considered professional misconduct under Rule 8.4, because Martin violated Model Rule 3.4(a) and (f), and also engaged in misrepresentation, which prejudiced the defense counsel.65 The court’s response to these ethical violations, excluding the witnesses who Martin had improperly contacted, was not the appropriate response, which is the subject of the following section.

III. CROSS-EXAMINATION WOULD HAVE SUFFICIENTLY ADDRESSED ANY EFFECT MARTIN’S UNETHICAL CONDUCT HAD ON THE TRIAL

This section will discuss cross-examination as an alternative to, and more appropriate method than, witness exclusion for addressing the effect of sequestration order violations and unethical witness coaching. This section will demonstrate that allowing improperly contacted and unethically coached witnesses to testify and to be subjected to cross-examination would have been an adequate remedy for Martin’s misconduct in the Moussaoui case. Additionally, Martin’s obstruction of the defense’s access to witnesses could have been remedied by the Government making the witnesses available to defense counsel, with ample time for the witnesses to be interviewed.

When a witness is exposed to information through violation of a sequestration order, or has been improperly coached, the court is concerned that the witness’ testimony may be influenced by the extraneous information, or “tainted.”66 Federal procedure offers several remedies for the violation of a sequestration order, “including holding the [violator] in contempt, making the behavior of the [violator] subject for cross-examination and comment by counsel, instructing the jury to weigh the credibility of the witness, [and] disallowing the testimony of the . . . witness altogether.”67 The exclusion of witnesses is viewed as an “extraordinary” and “severe” means of addressing a sequestration order violation.68 Excluding witnesses because of sequestration order violations is a remedy that “should be only used when witness’s testimony is ‘incredible as a matter of law.'”69 The court is obligated to “use the least severe sanction which will adequately punish the government and secure future compliance” when the government has disobeyed court orders.70

Cross-examination is an approved method of addressing witnesses possibly tainted by a sequestration order violation, as well as a favored method for addressing a witness inappropriately coached.71 Allowing skillful cross-examination by opposing counsel to expose and to address any taint created by inappropriate coaching has been described as “the swift antidote for witness coaching.”72 This method has been approved as one of the “weapons to cope with ‘coached’ witnesses” by the Supreme Court.73 The following is an example of how cross-examination may be used to address witnesses tainted by inappropriate coaching:

A prosecutor may cross-examine a defendant as to the extent of any “coaching” during a recess, subject, of course, to the control of the court. Skillful cross-examination could develop a record which the prosecutor in closing argument might well exploit by raising questions as to the defendant’s credibility, if it developed that defense counsel had in fact coached the witness as to how to respond on the remaining direct examination and on cross-examination.74

The Moussaoui case was an apposite case for the court to allow cross-examination to serve as the antidote for the sequestration order violation and the inappropriate coaching. Cross-examination would have been especially adequate to remedy any taint that resulted from Martin’s misconduct because her actions were overt and documented; therefore, her actions could have easily been exposed through questioning of the witnesses. Overt witness coaching means that a witness is “openly” directed to alter her story to testify falsely about the events in question.75 The following is an example of Martin overtly coaching witnesses through emailed communications:

[L]et me put it this way … all of us aviation lawyers, were stunned by the opening. The opening has created a credibility gap that the defense can drive a truck through. There is no way anyone could say that the carriers could have prevented all short bladed knives from going through-[the prosecutor] MUST elicit that from you and the airline witnesses on direct. . . .76

The emails also stressed the need to present testimony that would deflect expected attacks by defense counsel.77 This example shows that Martin was overtly directing the witness to give specific testimony. The defense counsel could have easily exposed that Martin inappropriately contacted and unethically coached witnesses through questioning of the witnesses. The defense counsel could have used the text of the emails as a guide to expose the improper communications between Martin and the witnesses. Then, the credibility of the witnesses would have been left for the jury to assess.

Exposing Martin’s improper contact with, and unethical coaching of, the witnesses would have likely caused the jury to question the government’s credibility. In fact, in the Moussaoui case, “government credibility and competence [was] a defense theme.”78 The government tried to protect its credibility by marginalizing Martin and her involvement in the case. The government distanced itself from Martin by repeatedly referring to her as a TSA attorney, not as a member of the prosecution team.79 The government also urged the court to direct any punitive measures solely to Martin.80 However, the fact that Martin was a part of the prosecution team should not have been overlooked, and “[p]rosecutors [should not] say, ‘We really don’t know what titis person is doing, and she wasn’t involved.'”81 The court did find that Martin was “involved in a significant portion of [the government’s] case. . . .”82 Therefore, excising Martin and the effect of her conduct from the trial was not appropriate because Martin’s conduct was essentially an act by the government, and the jury should have been allowed to consider her conduct when judging the government’s credibility.

Another reason to generally favor cross-examination of tainted witnesses over witness exclusion is that alternative witnesses are not always readily available, as they were in the Moussoui case.83 An alternative lay witness may prove difficult to find because she “does not testify as an expert and … is therefore restricted to giving an opinion or making an inference that … is based on firsthand knowledge.”84 The effect of excluding a lay witness may be to strike essential elements from a case.85 This frustrates the “truth-seeking function of the trial.”86 To further the truth-seeking function of the trial, instead of excluding improperly contacted and coached but otherwise credible witnesses, the better approach would be to let all of the facts be presented to the jury and to allow the jury to weigh the witness’s credibility.

In the Moussaoui case, the excluded witnesses were lay witnesses. If alternative witness had not been available, the prosecution would not have been able to present evidence regarding how the TSA and FAA could have prevented the 9/11 attacks had Moussaoui given truthful information to the FBI.87 This would have been an extreme result, especially in a case where the witnesses were not incredible, just possibly tainted. Consequently, the more tempered approach of cross-examining witnesses who were improperly contacted and coached, but are otherwise credible, is superior.

An additional matter before the court was Martin’s obstruction of the defense counsel’s access to witnesses. The government indicated mat all witnesses who wanted to be interviewed by the defense were available.88 Ample time was available for interviews because the witnesses in question were not to be called until the end of the case.89 The granting of access to the witnesses cures any possible prejudice that resulted from Martin barring the defense from speaking to witness.90

CONCLUSION

Martin’s unethical conduct was overt and well documented. Therefore, skillful cross-examination by the opposing counsel would have been sufficient to expose any influence Martin’s unethical behavior had on the witnesses. Because a less severe option than excluding the improperly contacted and unethically coached witness was available and sufficient to address and to expose any taint created by Martin’s conduct, the court’s decision to exclude the witnesses was inappropriate. In cases where an attorney has engaged in sequestration order violations or unethical coaching, or both, the court should implement the least restrictive sanction and allow the witnesses to testify and allow vigorous cross-examination to expose and address any taint created by the unethical behavior, unless the witness are otherwise incredible.

1. See Neil A. Lewis, Moussaoui Given Life Term by Jury Over Link to 9/11 , N.Y. Times, May 4, 2006, at A 1.

2. See Jerry Markon, Investigations, Lawsuits Still Dogging 9/11 Lawyer: Violation of Order Halted Moussaoui Trial, WASH. Post, July 10, 2006, at B1.

3. See Government’s Disclosure of Possible Violation of Judge’s Sequestration Order Regarding Witnesses, United States v. Zacarias Moussaoui, No. 1:01cr455 (E.D. Va. Mar. 13, 2006), available at http://news.findlaw.eom/legalnews/us/terrorism/cases/index.html#moussaoui (follow “Government Disclosure that Carla Martin, an attorney for the Transportation Safety Administration may have violated a court order by ‘providing a copy of the transcript from the first day of trial’ to seven (7) prosecution and defense witnesses” hyperlink) [hereinafter Disclosure of Violation of Sequestration Order].

4. See Government’s Motion for Reconsideration of the Court’s Order Striking All Aviation Evidence in this Case at 5, United States v. Zacarías Moussaoui, No. 1:01cr455 (E.D. Va. Mar. 15, 2006), available at http://news.findlaw.comrtegalnews/us/terrorism/cases/index.html#moussaoui (follow “Government Motion for reconsideration of the court order barring use of aviation related evidence” hyperlink) [hereinafter Government’s Motion for Reconsideration]; G.M. Filisko, In Trouble Over Sequester Break, 5 No. 12 A.B.A. J. E-Report 1, March 24, 2006, at 1.

5. See Filisko, supra note 4, at 1.

6. Order Barring Government’s Use of Aviation Related Evidence, U.S. v. Moussaoui, No. 1:01cr455 (E.D. Va. Mar. 14, 2006), available at http://news.findlaw.eom/legamews/us/terrorisrn/cases/index.html#moussaoui (follow “Order barring the government from introducing aviation related evidence” hyperlink) [hereinafter Order Barring Aviation Evidence].

7. Markon, supra note 2, at B1.

8. See Order Allowing Government to Call Untainted Aviation Witnesses, United States v. Moussaoui, No. 1:01cr455 (E.D. Va. Mar. 17, 2006), available at http://news.findlaw.com/legalnews/us/terrorism/cases/index.html#moussaoui (follow “Order allowing Government to call untainted aviation witnesses” hyperlink) [hereinafter Order Allowing Untainted Aviation Witnesses].

9. See Markon, supra note 2, at B1.

10. See Special Verdict Form for Phase II at 13, United States v. Moussaoui, No. 1:01cr455 (E.D. Va. May 3, 2006), available at http://news.findlaw.eom/legalnews/us/terrorism/cases/index.html#moussaoui (follow “Jury’s Verdict Form sentencing Moussaoui to life in prison.” hyperlink).

11 . Filisko, supra note 4, at 1.

12. Markon, supra note 2, at B1.

13. Id.

14. U.S. lawyer Clear, Grand Rapids Press, October 5, 2006, at A3.

15. See infra notes 45-65 and accompanying text.

16. Fed. Proc. L. Ed. § 80:64 (2006).

17. Order Prohibiting Non-Victim Witnesses from Following Trial Proceedings, United States v. Moussaoui, No. 1:01cr455 (E.D. Va. Feb. 22, 2006), available at http://news.findlaw.com/legalnews/us/terrorism/cases/index.htmlfttnoussaoui (follow “Court Order prohibiting non-victim witnesses at Moussaoui’s death penalty trial from ‘followftng the] trial proceedings.’ (e.g., reading trial transcripts) before testifying.” hyperlink) [hereinafter Order Prohibiting Witnesses from Following Trial Proceedings].

18. FED. R. EVID. 615.

19. Id.

20. United States v. Walker, 613 F.2d 1349, 1354 (5th Cir. 1980) (emphasis added).

21. See United States v. Rhynes, 218 F.3d 310, 317 (4th Cir. 2000); United States v. Buchanan, 787 F.2d 477, 485 (10th Cir. 1986).

22. United States v. Farnham, 791 F.2d 331, 335 (4th Cir. 1986); see also Rhynes, 218 F.3d at 317.

23. Order Prohibiting Witnesses from Following Trial Proceedings, supra note 17, at 1 (emphasis added).

24. See Disclosure of Violation of Sequestration Order, supra note 3.

25. Government’s Motion for Reconsideration, supra note 4, at 2.

26. Order Allowing Untainted Aviation Witnesses, supra note 8, at 2.

27. Government’s Motion for Reconsideration, supra note 4, at 2.

28. Id.

29. Id.

30. Disclosure of Violation of Sequestration Order, supra note 3, at 6.

31. See Filisko, supra note 4, at 1.

32. Government’s Motion for Reconsideration, supra note 4, at 5.

33. Disclosure of Violation of Sequestration Order, supra note 3, at 8.

34. Filisko, supra note 4, at 1-2.

35. See id.

36. Government’s Motion for Reconsideration, supra note 4, at 5.

37. Id.

38. See infra notes 61-65 and accompanying text.

39. Government’s Motion for Reconsideration, supra note 4, at 17.

40. Disclosure of Violation of Sequestration Order, supra note 3.

41. Order Barring Aviation Evidence, supra note 6, at 1.

42. Government’s Motion for Reconsideration, supra note 4, at 2.

43. Markon, supra note 2, at B1.

44. Order Allowing Untainted Aviation Witnesses, supra note 8, at 1 .

45. Model Rules of Professional Conduct R. 3.4(c) (2004) [hereinafter MODEL RULES]. 46. Model Rules R. 3.4(c).

47. Markon, supra note 2, at B1.

48. Richard C. Wydick, The Ethics of Witness Coaching, 17 Cardozo L. Rev. 1, 1-2 (1995).

49. Joseph D. Piorkowski, Jr., Professional Conduct and the Preparation of Witnesses for Trial: Defining the Acceptable Limitations of “Coaching, ” 1 Geo. J. LEGAL ETHICS 389, 390-91 (1987) (quoting R. ARON & J. ROSNER, HOW TO PREPARE WITNESSES FOR TRIAL 82-83 (1985)).

50. J. ALEXANDER TANFORD, THE TRIAL PROCESS: LAW, TACTICS AND ETHICS 235 (2d ed. 1993).

51. In re Eldridge, 82 N. Y. 161, 171 (1880).

52. TANFORD, supra note 50, at 235.

53. Disclosure of Violation of Sequestration Order, supra note 3, at 11.

54. Piorkowski, supra note 49, at 391.

55. Eldridge, 82 N.Y. at 171.

56. MODEL RULES R. 3.4(b).

57. MODEL RULES R. 3.4(f). This rule is conditioned on whether “(1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.” Model Rules R. 3.4(f). Neither condition is applicable in this case.

58. MODEL RULES R. 8.4(a).

59. MODEL RULES R. 8.4(c).

60. MODEL RULES R. 8.4(d).

61. See RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 116 cmt. e (2000).

62. See id.

63. MODEL RULES R. 3.4(a).

64. Rule 3.4(f) states that a lawyer shall not “request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.” Model Rules R. 3.4(f).

65. See MODEL RULES R. 8.4(a)-(d). Rule 8.4 states that “[i]t is professional misconduct for a lawyer to: violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; engage in conduct involving dishonesty, fraud, deceit or misrepresentation; engage in conduct that is prejudicial to the administration of justice.” Model Rules R. 8.4(a)-(d).

66. See Defendant’s Opposition to the Government’s Motion for Reconsideration of the Court’s Order Striking AU Aviation Evidence in this Case at 3, United States v. Moussaoui, No. I:01cr455 (E.D. Va. Mar. 16, 2006), available at http://news.findlaw.eom/legalnews/us/terrorism/cases/index.html#moussaoui (follow “Defense Opposition to the government’s motion to reconsider Judge Brikema’s court order” hyperlink) [hereinafter Defense Opposition to the Motion for Reconsideration].

67. Fed. Proc, L.Ed. § 80:64 (2006).

68. Government’s Motion for Reconsideration, supra note 4, at 17 (citing Taylor v. United States, 388 F.2d 786, 788 (9th Cir. 1967)).

69. Id.

70. United States v. Hastings, 126 F.3d 310, 317 (4th Cir. 1997).

71. See, e.g., United States v. Rhynes, 218 F.3d 310, 320 (4th Cir. 2000).

72. Id.

73. Geders v. United States, 425 U.S. 80, 89 (1976).

74. Id. at 89-90.

75. Wydick, supra note 48, at 18-19.

76. Disclosure of Violation of Sequestration Order, supra note 3, at 8.

77. See id.

78. Government’s Motion for Reconsideration, supra note 4, at 17.

79. See, e.g., Disclosure of Violation of Sequestration Order, supra note 3, at 1.

80. See Government’s Motion for Reconsideration, supra note 4, at 16.

81. Filisko, supra note 4, at 1.

82. Defense Opposition to the Motion for Reconsideration, supra note 66, at 3 (quoting March 14, 2006 Hearing Transcript at 201-02, United States v. Moussaoui, No. 1:01cr455 (E.D. Va. Mar. 14, 2006).

83. See, e.g.. United States v. Rhynes, 218 F.3d 310, 323 (4th Cir. 2000) (holding that exclusion of a defendant’s only corroborating witness was not harmless error).

84. BLACK’S LAW DICTIONARY 1633-34 (Deluxe 8th ed. 2004) (citing Fed. R. Evid. 701).; cf. Defense Opposition to the Motion for Reconsideration, supra note 66, at 19-20.

85. See, e.g., Rhynes, 218 F.3d at 315; see also Government’s Motion for Reconsideration, supra note 4, at 2.

86. See Perry v. Leeke, 488 U.S. 272, 282 (1989).

87. Government’s Motion for Reconsideration, supra note 4, at 2-3.

88. Id. at 17.

89. Id. at 18.

90. Id.

FELICIA CARTER*

* J.D., Georgetown University Law Center (expected May 2008); B.A., Swarthmore College (2003). The author would like to thank Nicole Carter, Olivia Carter, Kenneth Carter, and Ronald Szpindor for thenassistance and encouragement.

Copyright Georgetown University Law Center Summer 2007

Provided by ProQuest Information and Learning Company. All rights Reserved