Defending The Zacarias Moussaoui Sentence: Why the Phase One and Phase Two Verdicts Were Consistent, And Why the Sentence Was the Right One

On Thursday, May 4, after four-and-a-half years of legal proceedings and seven days of jury deliberation, Zacarias Moussaoui was sentenced to three consecutive life terms without the possibility of parole (parole was abolished for federal prisoners in 1984) in the federal "supermax" prison in Florence, Colorado.

The government cannot appeal, and Moussaoui would have virtually no legal basis to do so. He may try -- like Unabomber Theodore Kaczynski - to appeal his life sentence and ask for the death penalty, but such an appeal would very probably suffer the same fate as Kaczynski's - dismissed as having no legal foundation. Moussaoui could hardly attack his guilty plea, entered over the strenuous objections of his defense attorneys.

Some critics of the verdict have called it confused and inconsistent; others say it was a compromise. I'll address their claims in this column.

The Verdict in Phase One: Two Aggravating Factors Were Satisfied

In a previous column, I focused on the first phase of the sentencing trial: death-eligibility. In this column, I will focus on the second phase of the sentencing trial, which ended in a life sentence, instead of the death penalty.

To find Moussaoui eligible for the death penalty, jurors had to find, unanimously, that the prosecution had proved at least one of three statutory aggravating factors beyond a reasonable doubt.

As the 42-page verdict form reflects, jurors found two of these aggravating factors satisfied, concluding that Moussaoui "knowingly created a grave risk of death to one or more persons in addition to the victims of the offense," and that Moussaoui "committed the offense after substantial planning and premeditation to cause the death of a person or to commit an act of terrorism."

Significantly, however, the jury did not find the third factor satisfied--that Moussaoui "committed the offense in an especially heinous, cruel or depraved manner in that it involved torture or serious physical abuse to the victim or victims." This was the first clue in the verdict form that suggested the jurors would not impose the death sentence.

Obviously, the 9/11 attacks were heinous, cruel and depraved crimes that effectively tortured many of their victims. But Moussaoui wasn't charged with the attacks, but rather for having an undefined role in the conspiracy, and - the government emphasized -- for failing to tell the FBI what he knew about 9/11 plans. The jurors obviously figured out the difference.

The Phase Two Verdict: Different Standards for the Aggravating and Mitigating Factors

Under the federal death penalty statute, jurors must take into account aggravating factors--factors that weigh in favor of death--and mitigating factors--factors that tip the balance against the death penalty, and in favor of life in prison.

It's important to stress that these are factors, not facts: Jurors might find facts to have been proven, but still believe those facts should not be a factor weighing in favor of, or against, the death penalty. Obviously, no factor can count if the facts underlying it haven't been proven. But equally, no factor can count only because the facts underlying it have been proven; jurors must also think the factor either increases or lessens the case for putting the defendant to death.

With respect to aggravating factors, the jury had to find unanimously that the prosecution had proved them beyond a reasonable doubt as aggravating the offense. With respect to mitigating factors, the defense only had to convince the jury by a preponderance of the evidence. In addition, the verdict form asked jurors to indicate how many among them had accepted a particular factor as mitigating.

The Phase Two Verdict: How the Jury May Have Reasoned

Many of the aggravating factors involved the ravages wrought by the 9/11 attacks - and the jury said "yes" on these. However, the jury said "no" when asked if it was an aggravating factor that Moussaoui's actions "resulted in the deaths of approximately 3,000 people."

What the jury was likely saying here was that they did not buy factually that Moussaoui caused 9-11. Indeed, where the verdict form left a place for the jurors to write in any other mitigating factors they felt were proved by a preponderance of the evidence, they added that Moussaoui had "limited knowledge of the 9/11 attack plans"; three jurors voted for this factor.

Nine jurors voted that Moussaoui's violent upbringing was a mitigating factor. But jurors rejected the defense's claim that the death penalty should not be imposed because Moussaoui was a low-level al Qaeda operative, was psychotic, or because he overcame his violent and deprived upbringing and obtained a Master's degree from a university in England. (Again, this illustrates the fact/factor distinction; Moussaoui did indeed get that degree, but jurors thought - understandably - that this was irrelevant to whether he ought to receive the death penalty.) The jurors rejected many of the other mitigating factors.

After voting for and against each mitigating factor, the jurors then had to decide if the mitigating factors outweighed the aggravating factors. If they did, they were instructed that their vote must be for life without parole. And, of course, this was their unanimous decision.

Are the Verdicts in Phase One and Phase Two Inconsistent?

Some legal pundits asked: How could the jury find Moussaoui eligible for death, but then not actually sentence him to death? Isn't that inconsistent? I don't think so.

The verdict form shows the methodical process the jurors used to reach their decision. And an analogy may help explain why the jurors did not themselves end the trial after Phase One.

Suppose a criminal trial judge thinks that, at the end of the proof stage, the facts are not in doubt, and the prosecution has failed to prove its case beyond a reasonable doubt. He or she might opt to dismiss the charges - and has the authority to do so (this is known in most courts as a "directed verdict"). But often, judges send the case to the jury anyway - deferring judgment until later, to see what the jury will do. If the jury comes back with a verdict that the judge feels is not supported by the evidence, the judge can set aside the verdict, and enter a verdict for the other party.

Perhaps the jury engaged in a similar trade-off.. Maybe the decision that Moussaoui was eligible for the death penalty was merely an academic one. After all, Judge Brinkema herself rejected the defense team's motion to remove the case from the jury and rule that the government had not made out a case for execution, although she had indicated earlier in the proceedings that she might do so. She could have done so, given that Moussaoui's guilty plea would have made life without parole the only possible sentence lesser than death.

Maybe if this had been another defendant, Judge Brinkema would not have submitted the case to the jury, but would have imposed a life sentence herself. But this was no ordinary trial. Given the political stakes, the families and others (like former New York City Major Rudy Giuliani) ready to give the testimony of their lives, and the dramatic reenactment of Flight 93 that the prosecutor had meticulously prepared to show, it would have been shocking if Judge Brinkema had halted the proceedings.

It is likely that Judge Brinkema --and then the jury -- wanted the trial to continue, to hear from the families, many of whom saw the trial as "closure" on their grief.

Was This A Compromise Verdict?

Many commentators are describing this as a "compromise" verdict. There is no support for this conclusion in the verdict form. The jury never indicated that they were deadlocked and could not reach a unanimous verdict, which is what happened in the trial of Terry Nichols, Timothy McVeigh's co-conspirator in the Oklahoma City bombing. When the jury "hung" in that case, U.S. District Judge Richard Matsch, imposed a life sentence--his only alternative.

No, these jurors were not convinced that Moussaoui should die for the crimes of 9/11. Indeed, one anonymous juror told the Washington Post that some of them believed Moussaoui to be a "bit player" in the attacks and should not be held responsible for killing anyone.

The jurors obviously did not believe Moussaoui's boasts (which went far beyond the stipulated facts in his guilty plea) that he and "shoe bomber" Richard Reid were planning to fly an airplane into the White House. Apparently, neither did the prosecution, for whom Moussaoui was testifying at that point. For after all the evidence was in, Judge Brinkema had the prosecutors read a statement into the record that the FBI did not believe Moussaoui's so-called plot to have any credibility.

Did We Learn Anything More About the 9-11 Attacks?

Those thinking that the Moussaoui trial was going to fill in the gaps about what we know about the 9-11 attacks were disappointed. The government is still keeping some big secrets from the public, secrets that lie hidden beneath redacted trial transcripts and in classified documents seen only by the judge, lawyers, and jurors.

The good news about the trial, however, is that the American criminal justice system was at its best. Of course, the prosecution overreached throughout the proceedings, even going so far as to coach witnesses. Nevertheless, the trial showed why any one of us would rather place our fate in the hands of an American court, than any other court in the world.

Judge Brinkema was a paragon of fair-mindedness and exemplary judicial temperament. Always thoughtful in her rulings, she showed respect toward the defendant who continuously berated and baited her.

Probably no defendant in recent history has had a better defense team. Moussaoui's first attorney, then-Federal Defender Frank Dunham, is fighting for his own life, and could not participate in the trial. But he left the case to his first-class team, who fought to the bitter end, not just in the trial court, but in the Court of Appeals and the Supreme Court. Vilified by their client, their dedication to upholding the rights of a defendant who despised them and the laws they upheld was something all Americans can be proud of.