Moussaoui Defense Paints Picture of Mental Instability

Defense lawyers show Zacarias Moussaoui's notebooks as evidence of his insanity. But the prosecution says Moussaoui was lucid enough to make it to the U.S., take flying lessons and lie to the FBI. The testimony came during the sentencing phase of the confessed Sept. 11 conspirator's trial.

STEVE INSKEEP, host:

In another courtroom today, a jury hears more testimony on whether Zacarias Moussaoui is mentally ill.

Defense attorneys in Virginia say Moussaoui is, and that his condition should save him from the death penalty. As proof, the defense has turned to the mountain of legal documents the admitted al-Qaida conspirator filed when he was acting as his own attorney. NPR's Larry Abramson reports.

LARRY ABRAMSON reporting:

Moussaoui's own court filings are unmistakable. Written by hand on lined notebook paper, they often begin by insulting Moussaoui's attorneys or the judge. Jurors got a glimpse at some of those documents at court yesterday.

For example, Moussaoui frequently demanded that the FBI produce an electric fan, which he believed contained a government surveillance device. Moussaoui claimed this appliance would help explain the whole 9-11 plot, and might lead to his release.

But as psychologist Xavier Amador testified yesterday, Moussaoui recently asserted in court that the fan wasn't that important, and that he wasn't so sure it was bugged. Amador said such incidents show that Moussaoui is paranoid and delusional.

What will members of the jury make of this? Well, they don't have to conclude that Moussaoui is insane, because the jury is deciding on a sentence, not on guilt or innocence.

Christopher Slobogin teaches law and psychiatry at the University of Florida.

Professor CHRISTOPHER SLOBOGIN (Professor of Law, Psychiatry, University of Florida): Mental disorder at sentencing is, as a mitigator, is much less serious than the mental illness that is associated with insanity. The person's already been convicted, and the mental illness is merely meant to reduce the sentence.

ABRAMSON: But the defense has asserted, in fact, that Moussaoui is deeply disturbed. Psychologist Xavier Amador said he thinks Moussaoui is a paranoid schizophrenic who does not know he is sick; a common symptom of the disease, he says.

During cross-examination, prosecutor David Novak tried to pick apart that diagnosis. He noted that Moussaoui had refused to participate in most efforts to evaluate his sanity, and that Amador only had a brief encounter with the prisoner. He said that Moussaoui is not completely disorganized, as many psychotics. He had the ability to make plans, come to the United States, take flying lessons, and lie to the FBI.

Psychologist Amador conceded that point, but said that just as often Moussaoui could not control himself. He wanted to represent himself in court but lost that right when he kept insulting the judge and defense attorneys.

Christopher Slobogin says the defense argument might work. But this approach can also backfire, he says, and lead to tougher sentences.

Prof. SLOBOGIN: And that's either as a result of believing the person is lying, is malingering, or the belief that the individual is mentally disordered, but that makes him more dangerous and therefore more deserving of the death penalty.

ABRAMSON: The impact of all this psychological testimony is difficult to gauge. In this phase of the trial the rules of evidence are looser, and the jury faces a complex formula for judging whether mitigating factors, such as mental illness, outweigh aggravating factors, such as the extreme pain many victims suffered.

Former federal prosecutor Andrew McBride says both sides are making important points.

Mr. ANDREW MCBRIDE (Former Federal Prosecutor): As of right now, I think the government has proven three statutory aggravating factors and the defense is on its way to establishing three of the mitigating factors; impaired capacity, minor participation in the crime as a whole, and no prior criminal record.

ABRAMSON: The complexity of the psychological evaluation has already extended the length of the trial. It's now predicted to go to the jury next week.

Larry Abramson, NPR News, Washington.

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