The First Zacarias Moussaoui Sentencing Verdict:
Eligible for Death Based on His Own Contradictory, Uncorroborated Testimony

By ELAINE CASSEL

Wednesday, Apr. 05, 2006

On April 3, after four days of deliberation, an Alexandria, Virginia federal court jury found Zacarias Moussaoui eligible for the death penalty -- on the ground that he had conspired to use airplanes as weapons of mass destruction, resulting in the deaths of Americans on September 11. (The jury still must decide whether to impose the death penalty.)

Prior to its finding, the jury heard some surprising in-court testimony: Moussaoui claimed for the first time that he and "shoe bomber" Richard Reid had planned to fly a plane into the White House, as a part of a plan that culminated in the September 11 attacks. He also led the jury to believe that he knew more about the planned attacks than anyone had imagined.

Does that mean the case is now neatly tied up? Hardly. These "admissions" suffer from a dramatic lack of credibility, in the face of the rest of the evidence in the case (including doubts about Moussaoui's competence).

As a result, Moussaoui may be sentenced to death not for what he did or did not do, but for his lies about what he did or did not do or know.

What the Evidence Against Moussaoui Truly Does Establish

Here is what the evidence does show that Moussaoui did, and knew: He was a supporter of al Qaeda. He traveled to the United States in an attempt to learn to fly an airplane, so that he might be a part of some scheme (the details of which he was not sure) to take place after a major attack (the date of which he did not know).

Accordingly, prior to this sentencing trial, Moussaoui pled guilty in this proceeding to broad conspiracy charges - not to involvement in the September 11 attacks.

Did that plea merit the death penalty? The government argued that it did because, while in immigration detention prior to September 11, under government questioning, Moussaoui failed to reveal what he knew about the plot - and thus, the government contended, he failed to prevent the September 11 attacks. They allege that before he invoked his right not to answer government questions, he lied when he said he knew nothing about any pending terrorism schemes.

The problem with this argument, though, is that like all those facing custodial government questioning, Moussaoui had the Fifth Amendment right to remain silent.

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Thus, had Moussaoui not made his startling in-court "admissions," the jury would have been left with the difficult question of whether Moussaoui ought to face death not for the acts to which he pled guilty, but for his silence, through which he exercised a constitutional right.

Testimony Without Corroboration From Any Other Evidence

No wonder, then, that the government was elated by Moussaoui's startling new "admissions." But viewed in the light of the rest of the evidence, these supposed admissions are extremely hard to believe. Indeed, they are totally uncorroborated.

Here's the evidence:

In videotaped testimony, other al Qaeda members said Moussaoui was so bumbling and incompetent, bin Laden would have never trusted him with anything. Similarly, Moussaoui was brought to the attention of the FBI because his flight school instructor was alarmed at how poorly he was doing--and in particular, because he openly said that he wanted to learn how to fly large jets but had no interest in obtaining a pilot's license.

The FBI never searched Moussaoui's laptop computer for evidence of a potential hijacking conspiracy. If Moussaoui had indeed been directly involved in September 11, it seems very likely that the evidence surrounding him would have led the government to do such a search.

Imagine, for instance, if it had been Mohammed Atta who had been cast under suspicion by his flight instructor instead. It seems impossible to believe that the government could not have gotten into Atta's laptop based on evidence about Atta.

But Moussaoui was not Atta - and, as the September 11 Commission report explains, even when the FBI took information about Moussaoui to then-CIA head George Tenet, he was unimpressed.

The September 11 commission report concluded that Moussaoui had no direct involvement in September 11.

Why would Moussaoui lie? First, he is psychologically unbalanced - perhaps even schizophrenic - as I discussed in a prior column. Second, if he perceives that a death sentence is inevitable anyway, he may want to taunt and anger the jurors and public as much as possible, by claiming far greater responsibility than, in fact, he had.

The Jury's Next Decision: Death, or Life Without Parole?

After Moussaoui's surprising testimony, will the jury sentence him to death? It seems certain they will.

These jurors are "death-qualified": Each said he or she was willing to inflict the death penalty. (Though the Sixth Amendment guarantees an "impartial" jury, the Supreme Court has sanctioned "death qualification.") Unsurprisingly, studies have shown that "death-qualified" jurors are far more likely to convict a defendant and vote to impose a death sentence.

Meanwhile, the defense does not have much to offer in the way of mitigation. Moussaoui's mother -- who personally investigated her son's descent into radical Islamism after he was arrested (her journey is the subject of a French documentary) -- may or may not testify. The defense will offer evidence of Moussaoui's questionable mental status, but the jury probably won't be moved by it. The volatile, mentally unstable Moussaoui has offered no trace of remorse -- yelling "Death to America," and "Long live Osama" in the courtroom.

What will impress the jury, however, will be the heart-wrenching stories of loss from family members and the film footage capturing the horror of bodies falling from the sky and the World Trade Center towers collapsing under the impact of airplanes used as weapons of mass destruction.

Of course, this evidence is extremely moving to all of us. But to these particular jurors, it may cut even deeper: Some were quite close to the September 11 attacks -- either by virtue of where they worked (near the Pentagon) or their connections to victims and rescue workers. The defense objected to several such jurors, but they made the final cut anyway. One may wonder, in light of their seating on the panel, whether Moussaoui got the "impartial jury" the Sixth Amendment promises.

Were Atta on trial, the presentation of the September 11 and victim statement evidence would be appropriate, at least if one agrees - as the Supreme Court does - with the constitutionality of presenting "victim impact" evidence in the first place.

But with Moussaoui on trial, the evidence's connection to the proceeding is tenuous; again, except for his own very recent claims, the only connection between Moussaoui and September 11 was his alleged failure to speak out to prevent it.

The Idea that Someone Must Be Held Accountable

Even if all this evidence, put together, did not move the jurors to impose the death penalty, the jurors can hardly be immune from the impetus to punish someone for the September 11 attacks.

With the perpetrators either already dead or, in the case of bin Laden and his lieutenants, continuing to escape justice, vengeance has no focus. So the government--with lots of help from the defendant-- has provided one. For after Moussaoui testified, it was disclosed that he had met secretly with prosecutors early this year, agreeing to be put to death as long as the conditions of his pre-execution confinement could be improved.

The government rejected this request -- perhaps because it would then have had to cancel the spectacle that is about to occur. And again, one has to ask, what kind of defendant rejects his defense attorney and offers himself up to the government as a martyr?

Moussaoui will have lots of support in his quest for death. While it's true that some family members don't want the death penalty for Moussaoui, either because they don't believe in it or because they would like to thwart Moussaoui's quest for martyrdom, calls for Moussaoui's death, even before he testified, have been consistent.

In a March 6 USA Today article, Sally Regenhard, whose firefighter son died on September 11, noted that the hijackers are all dead, and Moussaoui is the only one left to hold accountable. "They all got away with murder, so we only have him left."

The wife of one of the airplane pilots said she felt that Moussaoui brought down her husband's plane as surely as if he had taken over the controls. And an April 3 Washington Post account quoted a family member comparing Moussaoui to a dog with rabies, that had to die.

One can understand the families' anger and grief, but the idea that "somebody" has to pay for September 11 partakes of religious concepts of atonement and sacrifice that should have no place in our criminal justice system. Rather, the underpinnings of our system are rational evidence and proportional punishment, not irrational, though understandable, feelings.

However, a highly charged emotional atmosphere and calls for vengeance are what the jurors themselves are faced with (and, indeed, what many of them may be personally feeling).

Given this backdrop, it would be asking a lot of this death-qualified jury--primed and prone to sentence to death anyway-- to lay aside the venom of the defendant and the vengeance of the victims and sentence him to life without parole based on his original plea.

That would be the just outcome. But justice has played little part in this phase of the trial of the terrorist who hopes to achieve in death, what he could not achieve in life.


Elaine Cassel practices law in Virginia and the District of Columbia and teaches law and psychology. Her textbook, Criminal Behavior (2nd ed., in press, Erlbaum), explores crime and violence from a developmental perspective. Her book, The War on Civil Liberties: How Bush and Ashcroft Dismantled the Bill of Rights, was published by Lawrence Hill in 2004. Her website, Civil Liberties Watch, is published under the auspices of Minneapolis, Minnesota's City Pages.

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