The revelation came as the US government yesterday considered whether to battle on in the high-profile terrorism trial, appeal the dramatic ruling, or submit a motion for Judge Leonie Brinkema to reconsider her move.
“We don’t know whether it is worth us proceeding at all, candidly, under the ruling you made today,” Robert Spencer told Judge Brinkema, in a telephone call that also included other prosecutors and defence counsel Edward MacMahon.
“That’s why we need to assess it, because without some relief, frankly, I think that there’s no point for us to go forward,” Mr Spencer said.
“That’s why we want to just rather than waste the jury’s time and the Court’s time, and we’re all mindful of the expense of this proceeding, that we ought just to weigh our rights for reconsideration or our appellate rights.”
A transcript of the telephone conference was later released by the court.
Mr Spencer’s comments will bolster the view of many legal experts that the case has been fatally damaged, and the US Justice Department may simply decide to fold its hand entirely.
If he escapes the death chamber, Moussaoui will spend his life in prison without possibility of parole, after admitting last year to conspiring to fly hijacked airliners into US buildings.
Although he was in jail at the time of the September 11, 2001, attacks, prosecutors argue Moussaoui should be executed because he knew Osama bin Laden’s group planned to use airliners as weapons but did not tell US authorities.
But the judge delivered a stinging blow to the prosecution on Tuesday, striking out six witnesses and all evidence relating to aviation security.
It followed revelations that government lawyer Carla Martin had coached the witnesses and sent them transcripts of the trial contrary to the judge’s instructions.