Slate's Jurisprudence: Jury Holds Moussaoui's Fate

The fate of convicted al-Qaida conspirator Zacarias Moussaoui is now in the hands of a jury that will decide whether he deserves the death penalty. Some court observers believe the strongest prosecution testimony came from Moussaoui himself — Alex Chadwick speaks with Slate legal analyst Dahlia Lithwick about the case.

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MADELEINE BRAND, host:

This is DAY TO DAY. Coming up on the program, the ban on abortion in South Dakota--we'll have a report from our Mike Pesca. I'm Madeleine Brand.

ALEX CHADWICK, host:

I'm Alex Chadwick. First, this: the jury in the Zacarias Moussaoui trail is deliberating the question of whether he may be eligible for the death penalty. The defense and prosecution presented their closing arguments yesterday. Earlier this week, Mr. Moussaoui testified on his own behalf, some of the most damning self-testimony one has ever heard. Joining us is Slate legal analyst Dahlia Lithwick. Dahlia, first of all, the jury today asked the judge whether an airplane used as a missile could be considered a weapon of mass destruction. How significant is this question? What do they mean by that?

Ms. DAHLIA LITHWICK (Legal Analyst, Slate Magazine): Well, I think they're trying to sort of parse the meaning of weapons of mass destruction. One of the three counts for which Moussaoui is going to eligible for the death penalty is a conspiracy to use weapons of mass destruction. I think they're trying to figure out is trying to hijack an airplane included in that, and Judge Brinkema answered them yes, the weapon of mass destruction can include airplanes that are used as missiles. So, she's essentially saying yes. What he's accused of, and what, in fact, he's admitted to in his guilty plea is, in fact, a weapon of mass destruction.

CHADWICK: I don't know if you can explain Zacarias Moussaoui's behavior this week during the trial. Over the objections of his lawyers, he got up and testified. He claimed he was supposed to have piloted a fifth airplane on September 11th into the White House. What did you think of all of this?

Ms. LITHWICK: Well, you know, it was horrifying for his attorneys. I mean, he really did snatch defeat out of the jaws of victory this week. You know, the prosecution was fumbling, and he managed to get up and kind of conform his testimony to exactly the story they've been trying to tell. In other words, up until now, he's never said any of these things. He's been talking for years, and he managed to really sort of weave his narrative very seamlessly into the prosecution's story. So, he really did a phenomenal job of destroying the defense that had been created, this defense that said, you know, he's a nothing. He's a hanger-on. He's got big dreams, but he wasn't really involved in the plot, and he turned around and said, no. I was a central player, which is really the first time we've ever heard that from him.

CHADWICK: Can a jury who is listening to this, can a jury say, you know, we've never heard anything about this fifth airplane. And, you know, just our kind of general knowledge of what happened, we don't think this sounds very believable.

Ms. LITHWICK: Well, certainly, that's what the defense team is urging. They're saying this plot that he cooked up on the stand, where he and Richard Reed--you'll remember he's the shoe bomber…

CHADWICK: Yeah.

Ms. LITHWICK: …were going to pilot this fifth plane into the White House. No one's heard of this. It's expressly been contradicted by other higher-ranking al-Qaida folks who have said, you know, Moussaoui was just not a part of this story. And so, certainly, the defense is actually impeaching him with testimony from other al-Qaida members and saying this guy is just full of it. He's puffing himself up to look bigger than he is. And they're hoping that, ultimately, the jury's going to buy their line, which is this guy is a colossal liar.

CHADWICK: The entire case seems so bizarre to me. I'm not a lawyer, I don't follow these things the way that you do, but you've had this earlier fumble on the part of the prosecution. The judge almost, I think, stopped the whole case and said you've done such a bad job, we're going to start over or something.

Ms. LITHWICK: Right. Well, that was a procedural sum. I mean, that was really, you know, a government lawyer who misbehaved. But despite that, the government has always had this tough burden of trying to prove a negative, trying to prove that this imaginary conversation that might have happened between Moussaoui and the FBI would have led to imaginary happenings that would have stopped 9/11. That's a huge stretch under any theory of conspiracy law, and the judge never really bought that as an argument, but boy, Moussaoui really, as I said, conformed his story to fit that crazy, crazy government story. And now, it looks like he may die for it.

CHADWICK: Well, that's it. The jury right now is deciding whether he's eligible for the death penalty. If they say yes, what then?

Ms. LITHWICK: Well, then there's a second phase to this part of the trial. Once they determine, and they have to decide unanimously that he's eligible for the death penalty, they start to weigh aggravating and mitigating factors. You know, how cruel and heinous was this? Is he crazy? You know, was he abused as a child? And at the end of that, they need to decide unanimously if he will die.

CHADWICK: Would Mr. Moussaoui testify again in this part of the trial?

(Soundbite of laughter)

CHADWICK: Is anyone going to?

Ms. LITHWICK: My guess is his attorneys don't want him to testify ever again, but I think they're going to try prove that he's crazy.

CHADWICK: Opinion and analysis from Dahlia Lithwick. She covers the courts for the online magazine Slate, and for DAY TO DAY. Dahlia, thank you again.

LITHWICK: My pleasure, Alex.

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Timeline: The Case Against Zacarias Moussaoui

Moussaoui mug shot

hide captionZacarias Moussaoui, a French citizen of Moroccan descent, after his arrest in 2001.

Getty Images/Getty Images
Moussaoui pleads guilty

hide captionJuly 18, 2002: Moussaoui attempts to plead guilty to conspiracy charges in the Sept. 11 terrorist attacks (courtroom illustration).

Getty Images/Getty Images
Zacarias Moussaoui speaking at the Albert V. Bryan United States District Courthouse April 22, 2005

hide captionApril 22, 2005: Moussaoui speaks in federal court during a hearing.

AFP/Getty Images/AFP

Charges Against Moussaoui

1. Conspiracy to commit acts of terrorism.

2. Conspiracy to commit aircraft piracy.

3. Conspiracy to destroy aircraft.

4. Conspiracy to use weapons of mass destruction.

5. Conspiracy to murder government employees.

6. Conspiracy to destroy property.

(Counts no. 1, 3 and 4 carry the death penalty)

Zacarias Moussaoui in Bryan US District Courthouse, Feb. 16, 2006.

hide captionFeb. 16, 2006: Moussaoui during jury selection for his trial in Alexandria, Va.

AFP/Getty Images/AFP

After seven days of deliberation, a federal jury rejects the death penalty for Zacarias Moussaoui, deciding that he will instead spend the rest of his life in prison.

A French citizen of Moroccan decent, Moussaoui is the only person charged in connection with the Sept. 11 terrorist attacks. Often referred to as the "20th hijacker," he was arrested in August 2001, after raising suspicion at a flight school for requesting information on flying a 747.

Major Events in Zacarias Moussaoui's Case:

Feb. 26-May 29, 2001: Moussaoui trains at Norman, Okla., flight school but doesn't get pilot's license.

Aug. 17, 2001: Moussaoui arrested on immigration charges after arousing suspicion at Minnesota flight school by asking to learn to fly a Boeing 747.

Sept. 11, 2001: Terrorists crash jetliners into the World Trade Center, Pentagon and a Pennsylvania field. Moussaoui is moved to New York, held as material witness.

Dec. 11, 2001: Moussaoui charged with six conspiracy counts related to Sept. 11 attacks.

Dec. 13, 2001: Moved to Alexandria, Va., for trial. Moussaoui is denied bail.

Jan. 2, 2002: Moussaoui refuses to plead; Judge Leonie Brinkema enters innocent plea on his behalf.

March 28, 2002: Prosecutors announce they will seek the death penalty.

April 22, 2002: Moussaoui asks to represent himself. Brinkema orders mental evaluation.

June 13, 2002: Moussaoui, who is allowed to represent himself, proclaims his innocence. Court-appointed attorneys ask to be dismissed, but Brinkema keeps them on standby.

July 16-18, 2002: Prosecution revises indictment to strengthen death penalty case. Moussaoui asks to plead guilty. Brinkema gives him a week to reconsider.

July 25, 2002: Brinkema rules that Moussaoui is competent to plead guilty. In a stormy hearing, Moussaoui tries to plead guilty to four counts, but Brinkema is not convinced he understands. He withdraws the pleas.

Sept. 6-19, 2002: Brinkema briefly seals Moussaoui's briefs because of intemperate rants.

Feb. 12, 2003: Brinkema postpones trial indefinitely.

July 14, 2003: Justice Department refuses to let Moussaoui question detained al-Qaida leaders.

Oct. 2, 2003: Brinkema bars the government from seeking the death penalty.

Nov. 14, 2003: Citing inflammatory and unprofessional briefs, Brinkema ends Moussaoui's self-representation.

April 22, 2003: A federal appeals court reinstates the death penalty as a possible sentence. Citing national security, the court says Moussaoui can use government-prepared summaries from detained al-Qaida leaders but cannot interview them.

Jan. 10, 2005: Moussaoui's lawyers appeal to the Supreme Court, challenging the government's right to try him without allowing direct questioning of detained al-Qaida leaders.

March 21, 2005: Supreme Court refuses to hear appeal.

April 20, 2005: Brinkema meets with Moussaoui after he sends her a letter expressing desire to plead guilty. Judge deems him competent to do so.

April 22, 2005: Moussaoui pleads guilty to all six charges.

Feb. 6, 2006: Court begins selecting jury to choose the death penalty or life in prison.

March 6, 2006: Sentencing phase begins with opening arguments.

March 13, 2006: Brinkema halts testimony in Moussaoui's sentencing trial after being informed that a government lawyer, Carla Martin, shared trial testimony with upcoming witnesses, in violation of court rules. Brinkema calls the action a breach of the defendant's constitutional rights, and is considering what sanction against the government is appropriate.

March 14, 2006: Brinkema decides that the sentencing trial can go forward, but without testimony and evidence key to the government's case. The judge halted proceedings the day before, warning government lawyers that they had violated her order not to coach upcoming witnesses.

March 27, 2006: In a major blow to his defense, Moussaoui tells the court that he was training to attack the White House in a fifth hijacked plane on Sept. 11, and was to be accompanied on the mission by British shoe bomber Richard Reid. Under cross-examination, Moussaoui says that he did not know exactly when the attacks on New York and Washington were to take place, but that he lied to investigators after his arrest to ensure that they would be carried out.

March 28, 2006: Defense attorneys scramble to undo the damage by reading testimony from senior al-Qaida operatives in U.S. custody, who describe Moussaoui as unreliable and unstable. The al-Qaida members say that they did not intend to include him in the Sept. 11 attacks. One South Asian terrorist known as Hambali, who was captured in 2003, is quoted as saying that Moussaoui had a reputation for being "not right in the head and having a bad character."

In another twist, prosecutors present evidence that, in a jailhouse meeting in February, Moussaoui offered to testify for the prosecution against himself. FBI agent James Fitzgerald testifies that Moussaoui told him he did not want to die behind bars and that it was "different to die in a battle… than in a jail on a toilet."

March 29, 2006: Jurors hear closing arguments in the case.

March 30, 2006: The jury deciding whether Moussaoui is eligible for the death penalty asks the judge for a definition of "weapons of mass destruction." The jury is told that airplanes used as missiles are considered a weapon of mass destruction. Conspiracy to use weapons of mass destruction is one of the convictions for which Moussaoui could receive the death penalty.

April 3, 2006: Jurors determine that Moussaoui was responsible for at least one death in the attacks of Sept. 11, 2001, and decide he should be eligible for execution. In the next phase of the proceedings, the jury will hear more testimony and decide whether Moussaoui should receive the death penalty, or life in prison.

April 5, 2006: Brinkema rules that the jury may hear the cockpit recording of United Flight 93, which crashed in a Pennsylvania field on Sept. 11.

April 6, 2006: Former New York Mayor Rudolph Giuliani testifies in the first day of the trial's second phase, joining Sept. 11 survivors and family members of victims.

April 10, 2006: Brinkema warns prosecutors not to go overboard with Sept. 11 testimony, video footage and photographs.

April 12, 2006: The jury hears the United Flight 93 cockpit voice recording. The transcript — sans audio — is released to the media.

April 13, 2006: On the witness stand, Moussaoui says has he "no regret, no remorse" about the attacks of Sept. 11, 2001.

April 17, 2006: A defense psychologist testifies that Zacarias Moussaoui is a paranoid schizophrenic with delusions.

April 19, 2006: Half a dozen relatives of people killed in the Sept. 11 attacks testify in support of a life sentence for Moussaoui.

April 20, 2006: Testimony concludes in the sentencing phase of the trial.

April 24, 2006: The jury begins deliberations after the prosecution and defense present closing arguments.

May 3, 2006: After seven days of deliberation, the jury rejects the death penalty, deciding that Moussaoui will spend the rest of his life in prison.

(Compiled from NPR News and Associated Press reports.)

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