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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Slate's Jurisprudence: Jury Holds Moussaoui's Fate

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Slate's Jurisprudence: Jury Holds Moussaoui's Fate

Slate's Jurisprudence: Jury Holds Moussaoui's Fate

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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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