Why Al Qaeda Conspirator Zacarias Moussaoui's Guilty Plea Probably Won't Save His Life

By MICHAEL C. DORF

Wednesday, Apr. 27, 2005

Defendants facing the possibility of the death penalty frequently plead guilty in exchange for a promise from the government not to seek execution. The practice is unsettling, insofar as the threat of death may induce an innocent person to plead guilty simply to save his skin.

Nonetheless, in an overburdened criminal justice system, the courts have accepted plea bargains as a necessary evil, allowing prosecutors to promise leniency--including the sparing of a defendant's life--so that the government may avoid the cost of a trial and the risk of an acquittal. So long as the defendant "knowingly, voluntarily and intelligently" waives his right to a trial, the courts will accept his guilty plea.

But what are we to make of the guilty plea of Zacarias Moussaoui? Last week, Moussaoui--the so-called twentieth hijacker--pleaded guilty to conspiracy in the 9/11 plot without any promise of leniency in exchange for his plea. Although there will be no trial regarding his guilt, Moussaoui will shortly face a trial to determine whether he should be sentenced to death or life imprisonment.

Ever since he angrily dismissed his attorneys in 2002, Moussaoui has been acting as his own lawyer, only grudgingly accepting some assistance from standby counsel appointed by Federal District Judge Leonie Brinkema to ensure fair proceedings.

What has Moussaoui's self-representation been like? In accepting Moussaoui's guilty plea last week, the judge said he "is extremely intelligent with a better understanding of our legal system than some of the lawyers who have appeared in court."

Yet Seymour Hersh, writing for the New Yorker, seemed to come closer to the mark when he said about a raft of filings from Moussaoui during the summer of 2003, that they "contained some glimpses of acute intelligence and awareness, but more often Moussaoui veered into angry ramblings."

And indeed, an examination of the tactical considerations that appear to underlie Moussaoui's decision to plead guilty undermines the conclusion that he did so intelligently.

Why an "Unagreed" Guilty Plea in a Capital Case Can Be Intelligent

One might be tempted to treat every decision to plead guilty to a capital offense without a prosecutorial promise to forego the death penalty as "unintelligent." But that would be inaccurate. A defendant could rationally decide to plead guilty under such circumstances.

Some defendants feel genuine remorse for their conduct and wish to accept responsibility for it. A defendant who participated in a crime under the influence of others may not have fully appreciated the gravity of the offense until faced with the damage. Or, religious scruples, sometimes acquired after the commission of the offense, may lead a defendant to plead guilty notwithstanding the possibility of a death sentence.

Moreover, whether or not a defendant feels genuine remorse, he may wish to seem remorseful in the hope of appealing to the sentencing jury. For under federal law, the same jurors that determine the defendant's guilt or innocence decide whether to impose the death penalty if they find him guilty.

At sentencing, that jury is guided by the federal death penalty statute, which sets out a number of mitigating factors that the jury must consider in deciding whether to impose the death penalty. Remorse is not expressly listed among these, but it would certainly count under the catch-all provision for "other factors . . . that mitigate against the imposition of the death sentence."

In the eyes of many jurors, a defendant who contests his guilt, by definition, manifests no remorse: How could he be remorseful about a crime, if he does not even admit that he committed it? Thus, the defendant who first contests his guilt and then professes remorse only after he has been convicted, will typically find that the jury disbelieves his expression of regret. "He's just feigning remorse to save his skin," the jurors will likely think.

Suppose, then, that a defendant believes that he is likely to be found guilty anyway, because the government's case against him is very strong. He may calculate that his best hope of averting the death penalty is to plead guilty and, in effect, throw himself on the mercy of the sentencing jury. Thus, he may rationally plead guilty even without any prosecutorial promise of leniency.

Why Moussaoui's Guilty Plea Nonetheless Makes Little Sense

In short, there are a number of very good reasons why a defendant might plead guilty to a capital offense even without a prosecutorial promise of leniency. But none of them appear to apply to Moussaoui.

Moussaoui is a fanatically religious man, but it is his very religious feeling that, he claims, justified his participation in a plot to commit mass murder. Far from feeling genuine remorse, Moussaoui appears to regret only that he was apprehended before he had the opportunity to complete his mission of destruction.

Moreover, Moussaoui has quite openly expressed these sentiments. He has amply exhibited his lack of genuine remorse through his lack of even feigned remorse. So he can hardly be described as throwing himself upon the court's mercy.

What about the strength of the case against Moussaoui? Is he merely accepting the inevitable by pleading guilty?

There is essentially irrefutable evidence that Moussaoui came to the United States on an Al Qaeda mission to fly an airplane into a building. But there are real doubts about whether Moussaoui was ever intended to be the twentieth hijacker on September 11, 2001, as the prosecution maintained.

Moreover, a skillful lawyer might have used those doubts to sow doubt on other elements of the government's case. By pleading guilty, however, Moussaoui effectively eliminated that possibility.

Moussaoui's Own Misguided Account of His Guilty Plea

If Moussaoui did not plead guilty because of remorse, feigned remorse, or the overwhelming strength of the case against him, why then did he do it?

The answer is not entirely clear, but his statements in the plea colloquy--the oral exchange between the judge and the defendant meant to ensure the plea is voluntary and that the defendant indeed committed the offense--suggest that Moussaoui thought he had tricked the prosecution.

Moussaoui acknowledged that he was an Al Qaeda operative intent on flying an airplane into a building, according to his account, the White House. But, he insisted, his plot was distinct from the 9/11 plot. Accordingly, he may think that the evidence of the death and destruction caused by the 9/11 hijackings will be excluded from his penalty trial.

If that is indeed Moussaoui's thinking, he is very much mistaken. Although the indictment setting forth the charges to which he pleaded guilty does not specifically state that he was to be the twentieth hijacker, it clearly alleges that he engaged in the same pattern of conduct as the other hijackers and was part of the broad Al Qaeda conspiracy to fly planes into buildings.

As the indictment charges--and as Moussaoui admitted by pleading guilty--that conspiracy resulted "in the deaths of thousands of persons on September 11, 2001." The fact, if it is a fact, that Moussaoui's role in the conspiracy would have led to numerous additional deaths of different persons on a different date is legally and morally irrelevant to whether he is guilty of the offense charged.

The Symbolic Meaning of Moussaoui's Impending Sentencing Hearing

If Moussaoui's logic in pleading guilty is faulty, does that mean that his plea is invalid? Hardly.

In requiring that a guilty plea be "intelligent," the law does not demand that it be wise. After all, most criminals--and especially terrorists like Moussaoui--live their lives by a logic quite different from that of law-abiding citizens. Thus, the law's requirement of "knowing, voluntary and intelligent" guilty pleas should not be taken literally. That language is essentially a formula for the notion that the defendant understands that by pleading guilty, he waives his right to a trial to determine his guilt or innocence.

Likewise, the public should understand what Moussaoui's guilty plea means. With the nineteen 9/11 hijackers dead and Osama bin Laden still at large, Moussaoui's trial was always going to be about issues larger than his role in the 9/11 plot.

Fairly or not, Moussaoui was to serve as a kind of surrogate for the dead and absent defendants. Now that the issue of Moussaoui's guilt is off the table, his sentencing hearing can play the role of stand-in trial for Osama bin Laden, Mohammed Atta and the other villains now or forever beyond the reach of the courts. And that is unlikely to result in any mercy being extended to the actual defendant.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases.

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