The Meaning of the Moussaoui Sentencing Verdict

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Adam Thurschwell, of the Cleveland-Marshall College of Law in Cleveland, Ohio, talks with John Ydstie about the meaning of the verdict in the Moussaoui sentencing trial. After the verdict, Thurschwell was able to speak with Gerald Zerkin, the lead defense attorney on the case.

JOHN YDSTIE, host:

Here for an analysis of the Moussaoui verdict is Adam Thurschwell. He was a member of the defense team that successfully argued against the death penalty for Terry Nichols in the Oklahoma City bombing. Welcome to the program.

Professor ADAM THURSCHWELL (Associate Professor of Law, Cleveland Marshall College of Law): Thank you for having me.

YDSTIE: Shortly after the Moussaoui verdict, you spoke with Gerald Zerkin, the lead defense attorney in the case. What was his take on the jury's decision?

Prof. THURSHCWELL: Well, we had a brief e-mail exchange, and he gave credit first and foremost to the victims' families, just as Edward McMahon did. And the other thing he thought was that the fact that Moussaoui's role was so really, extremely limited was the other factor that made a difference to the jury.

YDSTIE: Mm hmm.

Prof. THURSHCWELL: But, of course, it's impossible to tell. We have hints from the verdict form, but you don't know unless you were there, what exactly the jury was thinking.

YDSTIE: Well, well, what can we tell from the jury verdict form about what the jury's decision-making process was and what most influenced them?

Prof. THURSHCWELL: Well, I think first and foremost what we can tell is that this was a jury trial that worked in really the great American tradition of criminal justice. The jury did their job. They really looked at the evidence on both sides. They believed a lot of the kinds of facts that the defense put forward as a reason to spare Moussaoui's life. They rejected a number of them. They accepted a number of the prosecution's arguments. They rejected some of the key ones, and they deliberated for six or seven days.

I think the main conclusion I draw from this is that every once in a while - perhaps not as often as it should - but the American jury system is a remarkable, a remarkable way of determining guilt and innocence. And the whole thing makes me rather proud to be an American.

YDSTIE: How about the defense's performance? What did the defense do right, do you think, in arguing this case?

Prof. THURSHCWELL: Well, I have to say that the defense did an incredible job in this sense. This was the most difficult client that I have ever seen. Certainly, far more difficult than any client that I've ever had. And what they - one of the things they managed to do was take this - Moussaoui's efforts to undermine their efforts - and turned it around on him and the prosecution and used his very - really psychotic efforts to get himself killed, as a basis for arguing to the jury that this is not a guy who should be taken seriously as a terrorist or as a threat. And I think that's one thing they did extremely well.

The other thing that I give them enormous credit for - and that again, I've never seen done on the kind of scale that they managed here - was the obtaining of victims' family members to testify for the defense. And this was an exceptional case in every way, but in the number of victims' family members who were willing to take the stand for the defense, it was truly remarkable because the number was not quite as many as the people who testified for the prosecution, but it was close.

And so I think what that did, likely, is assure the jurors who were inclined to vote for life or who believed that death was not appropriate for one reason or another - to think that this is not a moral issue in which they must have to be forced to take the side of the victims one way or another, despite their own predilections. This was a case in which there was reason to believe - even from the victims' perspective -that there were reasons on both sides. And I think in that way, it took away one of the government's best weapons in any of these cases, which is the emotional appeal of the victim's families.

YDSTIE: Prosecutors spent four-and-a-half years on this case. Was it worth it?

Prof. THURSHCWELL: I think you have to say, clearly not. And I would have to say, again, from looking - stepping back and looking at the case - in the largest perspective, it was, it was not a wise decision to seek death in the first instance. It was an understandable decision, I think, from an emotional perspective, but not a wise one. Moussaoui was, from early on, the prosecution's original theory that he was the 20th hijacker, quickly dissipated when they realized after interrogating some of the other higher-ups that he was not intended to be part of the actual 9/11 plan to destroy the World Trade Center...

YDSTIE: Thank you, much. Thank you, very much. Adam Thurschwell is an associate professor of law at the Cleveland Marshall College of Law in Cleveland, Ohio.

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