Brinkema granted the federal prosecutors' request to summon aviation security witnesses "untainted" by the actions of Carla J. Martin, the Transportation Security Administration attorney who improperly coached the seven aviation witnesses expected to testify.
"I'm fully aware of the huge resources that have been expended on this case, the fact that we summoned 850 jurors, that we have an excellent jury of 17, and I agree that it would be unfortunate if this case could not go forward to some final resolution," the judge said Friday in a telephone conference with attorneys.
The judge on Tuesday barred the witnesses from testifying and dealt a potentially crippling blow to the prosecution, which wanted to show what security measures could have been taken to prevent the 9/11 hijackings if Moussaoui had told the truth about his knowledge of the plots.
Moussaoui, 37, a French citizen who spent five months in Norman taking flying lessons and physical training, pleaded guilty to conspiring to crash airplanes into U.S. buildings.
Prosecutors want a jury in Alexandria, Va., to give him the death penalty. If the jury spares his life, he'll spend the rest of it in prison with no chance of release.
After Brinkema barred the aviation witnesses who had contact with Martin, prosecutors asked her to reconsider her ruling, or at least allow the testimony of an untainted witness who worked at the Federal Aviation Administration in August 2001 -- the month Moussaoui was apprehended by the FBI in Minnesota.
Prosecutors said the evidence to be presented would relate to so-called "no-fly" security directives that "are used to keep suspected terrorists from boarding commercial aircraft."
Permitting the evidence "will allow us to present our complete theory of the case, albeit in imperfect form," prosecutors told the judge.
Moussaoui's defense team objected to the request, saying prosecutors in a capital case must give the defense a list of witnesses at least three days before the trial starts. The trial started two weeks ago. Moreover, they said, the "untainted" witnesses may have already been exposed to trial proceedings. Such exposure would violate the same judicial order that led Brinkema to bar the witnesses.
But the judge said Friday in a written order that the government's new proposal had merit, and she told prosecutors to give the names of new witnesses to defense lawyers at least three days before they testify.
She also warned that the witnesses could testify only to what the government "could" have done to prevent the 9/11 attacks if Moussaoui had provided information about the hijacking plots.
"The witness, or witnesses, may not, however, testify as to what the United States government 'would' have done with this information, as such testimony would be unduly speculative and misleading to the jury," the judge wrote.
After the ruling, defense attorneys urged the judge in a motion to hear from Martin before letting the new witnesses testify.
Martin's attorney has indicated she is prepared to tell her side, they wrote the judge. Martin's attorney on Thursday said, "Her response will show a very different, full picture of her intentions, her conduct, and her tireless dedication to a fair trial."
The trial is scheduled to resume Monday.
UPDATE The judge in al-Qaida conspirator Zacarias Moussaoui's sentencing trial reversed course and will allow some evidence on aviation security.
BACKGROUND: The judge had barred such evidence because prosecution witnesses were coached against her orders.
NEXT: The trial resumes Monday for Moussaoui, a former Norman resident charged in the Sept. 11, 2001, attacks.
