updated 5/4/2006 11:12:36 AM ET 2006-05-04T15:12:36

Guests: Solomon Wisenberg, Aitan Goelman, Scott Mendelhoff

DAN ABRAMS, HOST:  Coming up, the breaking news—a jury has reached a verdict in the sentencing phase of Zacarias Moussaoui‘s trial. 

We continue now with this breaking story.  There is a security sweep going on at the courthouse now.  Throughout this trial, the security has been beefed up to a degree hardly ever seen in a federal court in this country.

And they are now reviewing all of the security, double-checking, doing a security sweep at the courthouse, in the wake of the announcement that there is a verdict in the trial of Zacarias Moussaoui, the only man tried in this country in connection with 9/11. 

The question:  Will he get life in prison or the death penalty?  That is all that this jury has been asked to decide.  They already came back and said there was enough evidence to consider the death penalty in this case.  They felt that there were enough what are called aggravating circumstances, such that the—the death penalty would be on the table. 

But what has made this such a bizarre penalty phase has been that much

of the discussion in this case has been about what would make him more

miserable, the death penalty or serving life in prison?  Would be

considered a martyr, for example, if he was given the death penalty/

That is the sort of fight that has been going on inside that courtroom between prosecutors and defense attorneys, who at times have been at odds with the man that you see sketches of there.  He has tried to fire his lawyers again and again.  And, yet, they have continued to try and fight for his life inside that courtroom. 

And now we learn that a jury has come back with a unanimous verdict.

Kevin Corke is at the courthouse. 

So, Kevin, the security sweep is ongoing? 


And it‘s—unprecedented is the best description I can give you.  and I want you just think about it this way.  Usually, in a big high-profile case, you will end up with a dozen, maybe a couple dozen, on the outside, people that are in law enforcement.  They‘re on their motorcycles.  They‘re walking around. 

I see at least three dozen people.  I see them on rooftops.  I see motorcycles.  I see men with German shepherds doing the typical sweep near the press area.  But they are everywhere.

In fact, this area is, for the most part, cordoned off.  There are two, four, six, eight squad cars to my left, two, four, five, six, eight, 10 to my right, including several large vehicles that are massive SUVs and a few vans down the other way. 

So, this area is effectively cordoned of.  You law enforcement of local and federal variety everywhere just about that you can see, at least three dozens.

ABRAMS:  And, Kevin....

CORKE:  And they are on rooftops as well, as I can see to my left.

ABRAMS:  The reason—the...

CORKE:  We are hoping that they will complete the sweep quickly, though.

ABRAMS:  The reason we could not have you on camera, correct, is because you are in an area that is now being, effectively, swept, correct? 

CORKE:  You are right on the money with that. 

There are, right in front of me, in fact, at least 10 gentlemen, and rather large gentlemen, with automatic machine guns that are sweeping our area with dogs right now.  So, that‘s why we are on the telephone, Dan.

ABRAMS:  And this has been something they have been, I assume, preparing for, because they knew that a verdict could come at any day. 

But this is—you know, this is crunch time.  This is the time when all of the security there really has to kick in to its highest gear. 

CORKE:  Indeed.

And it happened so quickly.  As soon as we received word from Pete Williams from inside the courtroom that a verdict had been reached, you noticed a lot of very quick activity.  A lot of men started moving quickly and gathering. 

And that was a surefire sign that we were going to have to get out of there as quickly as possible.  And that‘s why we are on the telephone now.

ABRAMS:  Kevin, this has been a—a very long jury deliberation process.  Bring us up to date as to—to how long it has been going on.  And there has also been some questions and potential problems, as the process has continued. 

CORKE:  Absolutely. 

This particular deliberation, Dan, lasted—they had gone through 35 hours coming in to today—so, all told, probably around 41, 42 hours.  And just for context and comparison, keep in mind, the McVeigh jury—you remember that trial—it was like 30 hours for the penalty phase in that particular case. 

So, this has been longer.  That has made the prosecution obviously very concerned.  You know, what are they going to come back with?  When you get into these deeper hours, they fear, I‘m sure, that it is not going to be a death penalty. 

But you never know how this will all play out.  We will all find out together here in about 25 minutes or so.  But you‘re right.  It has been unusual, to say the least, all the shenanigans that have happened with Moussaoui himself.  It really speaks to the argument that some have made that maybe, just maybe, there‘s a—there‘s merit to the argument that maybe this guy is schizophrenic, and maybe—maybe he just wants to be a martyr.  But that‘s for the jury to decide. 

ABRAMS:  Let me ask you, Kevin, you were saying that—that there was something that would indicate that—that maybe this would not be a death penalty.  And, again, I‘m not asking you to predict, but I‘m just asking you to explain to us what would the reasoning would be behind that. 

CORKE:  Well, in this particular case, as you know, and I just want to lay it out for the viewers who are not familiar, you are used to this idea of 12-0.  It has got to be an all or nothing.

Well, that is true, but, in this particular case, unlike others, where, if you don‘t have 12-0, it is a hung jury and you have to go back, well, there is no hung jury here.  If is not 12-0 in favor of death, then anything short of that, he‘s going to spend the rest of his natural life in prison. 

That‘s what people need to understand.  Don‘t get the idea that, oh, look, if it is not unanimous, heavens, this guy is going to walk.  That‘s not the case.  He‘s not walking.  He‘s going one way or the other. 

But we have received word, Dan, that it is unanimous.  And given the

amount of time, I wouldn‘t want to speculate that what means, but I would -

I would probably guess that the prosecution is a little nervous right now. 


All right, Kevin, if you could stand by, and, of course, as soon as you are allowed to go back to your location, once that security sweep has been concluded, we would love to see you on camera, and—and let us know what is going on there at the courthouse. 

In the meantime, we have got on the line two former federal prosecutors, Aitan Goelman and Solomon Wisenberg.

Aitan, first of all, with regard to the unanimity of the jury, so we know there is a unanimous verdict, if it hadn‘t been unanimous, isn‘t it possible the prosecutors could have said, ah, we still want to retry it?

AITAN GOELMAN, FORMER FEDERAL PROSECUTOR:  They could have that.  But the judge probably would say that failure to reach a verdict equals life in prison. 

That‘s what the judge said in the Terry Nichols case.  That‘s not the way the—the statute kind of reads naturally, but that is the way it has been interpreted by judges, that you don‘t get a second shot, that, you know, there‘s one deliberation, and any—even if it is 11-1 in favor of death, that means life in prison, and there‘s no—there‘s no second shot.

ABRAMS:  We are continuing our live coverage of a verdict in the trial of the only man tried in this country in connection with 9/11, Zacarias Moussaoui.

Remember, Moussaoui was arrested under a month before 9/11 on immigration violations.  He was being held.  The FBI was seeking a search warrant in order to go into his apartment.  They weren‘t able to get one before 9/11.  Well, when they went there after 9/11, they found a trove of documents and other evidence that suggested that Moussaoui may have had knowledge of 9/11, his actions mirroring that of the other 9/11 hijackers. 

Now, it seems that prosecutors have backed off a bit the claim that he was the 20th hijacker, although Moussaoui himself said that he was supposed to fly a fifth plane on 9/11, along with shoe bomber Richard Reid. 

The problem, just about everyone else doesn‘t believe him.  Richard Reid denied it.  Terrorism experts have said that it is very unlikely.  Nevertheless, that is what he told a jury, Solomon Wisenberg, making this one of the most bizarre death penalty cases ever, because a couple of the questions that these jurors have to decide on a 42-page verdict form, one of them will be whether life in prison would be a more severe punishment than a sentence of death.

And, also, another question asks whether any members of the jury think that Moussaoui believes his execution will be part of his jihad and will provide him with the rewards attendant to a martyr‘s death.  I mean, that does make this a unique death penalty case. 


They—they broke the mold when they brought this one, Dan.  And one of the—one of the supreme ironies is that he has provided, the defendant has provided really a tremendous amount of aid to the prosecution. 

But, in providing that, questions about his own competency and his own sanity and his own desire to be a martyr come to the fore.  So, I agree with one of your earlier guests, or reporters, that there is absolutely no way I would want to speculate  on what the jury has—has done here. 

ABRAMS:  But, Aitan, as a prosecutor, when you wait day after day after day, generally, you don‘t view that as good news as a prosecutor in this phase of the case, right? 


I mean, but what you worry about, especially in a case like this, where you have 3,000 innocent people who were murdered, is not 12 people coming back and saying that this guy should live.  It‘s the hung jury. 

And, so, the fact that they have a unanimous verdict at this time I think would be a—a relief to the prosecutors in this case.  And, I mean, you‘re—you said at the top of the show this is the most bizarre case ever.  You have, you know, defense attorneys arguing that you should do what most hurts their client.  And they‘re arguing to the jury that their client lied to the jury when he took the stand. 

So, it is tough to speculate, but I would be surprised if the jury doesn‘t come back with a death verdict here.  I mean, each of these 12 jurors had to be death-qualified.  They had to say that, you know, if the circumstances warranted, they could impose the death penalty. 

And, you know, whether or not it‘s something that Moussaoui would prefer for not, the question is, does he deserve the death penalty?  And, you know, if—if not in a case where thousands of innocent people were slaughtered, then—then what case? 


ABRAMS:  And they have already made one determination, right, Aitan, to get to this point? 


They had to—they had to find—they found that the prosecution met the threshold element, under the death penalty statute, that, you know, his actions, or, in this case, you know, lies led to the—the killing of these people. 

ABRAMS:  There is a...


GOELMAN:  ... weigh the aggravating factors against the mitigating factors. 

ABRAMS:  And we will talk about that in a moment. 

I should update you.  Again, we are...


UNIDENTIFIED MALE:  ... actually been standing out in front of your building, because I didn‘t want to lose contact.  But I can be up...


ABRAMS:  All right. 

We are—sorry.  We‘re listening to a conversation there. 

We are waiting for a verdict in the sentencing phase of Zacarias Moussaoui‘s trial.  We are expecting that to come in less than 20 minutes from now, the only man tried in this country in connection with the—the 9/11 attacks. 

There is a security sweep, a massive one, going on at the courthouse as we speak that has just ended, I am told.  You see people running into the courthouse, now that the security sweep has been ended.

As a result, we will be able to get our reporters back up in a moment.  They had been asked to leave the area, so that a security sweep could be conducted before this verdict is announced. 

Solomon Wisenberg, we‘re talking about what are called aggravated and mitigating factors, bottom line, aggravating factors meaning reasons to execute, mitigating factors meaning reasons you might not want to execute. 

But a—some of these reasons that are in there as to mitigating factors, I mean, you talk about that he was subject to racism as a youngster because of his background, that his family had suffered from psychotic illnesses, etcetera, I mean, that‘s not going to be what is going to make or break this case, is it? 

WISENBERG:  Well, you—the first fact I don‘t think—I don‘t think would. 

But, you know, you never can tell.  Death penalty is a completely different kind of case.  And—and, as you pointed out, this particular death penalty case is absolutely off of the map.  So, I wouldn‘t want to say that, you know, a history of psychosis in the family would not be considered by a jury.  But the racism charge, I don‘t think, will..

ABRAMS:  Yes. 

WISENBERG:  ... will carry much weight her. 

ABRAMS:  I don‘t know.

Aitan, I do not believe that these jurors are going to determine this case based on his psychological background.  I think that these jurors are going to decide this case either for life in prison because they think he will suffer more there, or the death penalty, because there are just too many aggravating factors.

GOELMAN:  Yes.  No, I think that‘s right.  I think that is what it is going to turn on.

I mean, a lot of the, you know, mitigating factors or a lot of the factors that the defense proffered as mitigating are going to be relatively uncontroversial.  I don‘t think that, you know, the prosecution argued that he didn‘t suffer racism.  I think that the jury might well find, you know, that the defense proved 40 out of 42 mitigating factors, and then find that Moussaoui still should be put to death. 

ABRAMS:  I mean, some of the—one of the mitigating—again, mitigating, reasons not to execute, that his mother‘s failure to provide her children with any meaningful religious training or practice left Moussaoui without the theological or intellectual basis to resist the preachings and propaganda of radical Muslim fundamentalist. 

I mean, is there a risk, sometimes, do you think, Sol, in—in proposing this kind of mitigating factor, where the jurors will just roll their eyes and say, please, don‘t insult us?

WISENBERG:  Yes, there is a risk.

But there is also a risk, if you are defending a case like this and your duty is to do everything possible to not only get the—you know, the verdict that you want of life in prison in this case, but to perfect your record.  You don‘t want to be accused of not having thought of something that is relevant.  So, I certainly am—am not without sympathy for the lawyers here. 

GOELMAN:  Well, they had an incredibly hard job from the beginning. 

Any time, you know, you have a client who says “God curse you” every time he leaves the courtroom, you know that you have got a—your—your job cut out for you. 


ABRAMS:  All right. 

If we can lose that banner for a moment, because I want to show you the microphone.  That is where we are going to be seeing the court spokesperson walk out, at about 4:30 p.m. Eastern time, less than 15 minutes from now, and announce the jury‘s verdict in the case of Zacarias Moussaoui. 

Now, Aitan, this is a 42-page verdict form, filled with questions that these jurors had to answer.  What are we going to hear from the court spokesperson, would you—would you assume, when he comes out? 

GOELMAN:  Well, I assume that he would—I mean, in court, I assume that they‘re going to read through the factors and find which mitigating factors they found and which aggravating factors they found. 

I don‘t know if the court, you know, spokesperson is going to just hand out a copy of the verdict form, or is going to go through each of those—the jury‘s decision on each of the factors. 

Obviously, he is going to say what the jury ultimately concluded, in terms of life in prison or the death penalty. 

ABRAMS:  Our reporter, Kevin Corke, is getting miked up, etcetera, as we like to say, again, following a massive security sweep at the courthouse, after we found out that there was a verdict in—in the trial, in the sentencing phase of Zacarias Moussaoui‘s case.  He pled guilty to the original charges.

And, Aitan, exactly what it is that—what is it that he pled guilty to? 

GOELMAN:  He pled guilty to, I think, conspiracy to commit terrorism against the United States. 

ABRAMS:  Yes. 

And—and were you surprised that they came up with a verdict, I mean a unanimous verdict? 

GOELMAN:  No, I actually was surprised it took them this long.  I think it was—I mean, obviously, nothing is ever a slam-dunk case.  And you do have all the wrinkles about his lawyers arguing that life in prison is worse. 

But I did not think it would be all that tough for—for this jury to

to decide this guy should be put to death.

ABRAMS:  Kevin Corke is now back with us. 

Kevin, the security sweep has concluded at the courthouse? 

CORKE:  It has concluded, Dan.

It has been a little bit crazy, as you might imagine, when you have so many cameras all—all about you and—and different crews trying to jockey and get back over in here.  But the security sweep is over.  We are about 15 minutes away from the public information officer, Ed Adams, coming out here.  And we expect him to read the verdict, the recommendations by the jury—Dan.

ABRAMS:  Do—Kevin, do we know what Zacarias Moussaoui wants?  I mean, have we gotten a—a definitive sense of whether wants to live or die? 

CORKE:  Yes. 

I—I actually asked Pete Williams, NBC‘s justice correspondent, this very question today during the lunch break.  I said, do you get the sense that this is what he really wants, and will that somehow weigh, do you imagine, on the jury?

Because, quite frankly, they—I think a lot of people who felt that he was guilty would want to make sure he gets the ultimate punishment, whatever you think that ultimate punishment might be. 

And Pete said, you know, it‘s going to be difficult to tell.  But I think you can guess it this way.  It has taken a long time to come to a verdict, in this case, about 41, 42 hours in all.  And, so, you have to wonder, if the jury is feeling like here is a guy who definitely wants to die a martyr, do we give him, effectively, what he wants, or do you disregard all that and you simply say, yes, well, we‘re going to give you what—what we think you deserve?

Some people may think—you know, think that he deserves the death penalty.  And we will find out in about 15 minutes. 

ABRAMS:  Yes, because, Kevin, has he said one way or the other in his testimony whether he wants to die or not? 

CORKE:  Absolutely. 

He has made it expressly clear that this something for him, this was a jihad mission.  This was an opportunity, in his eyes, to—to crush the infidels.  And he said things of that nature.

So, I don‘t think there is any question that this a guy who would relish the opportunity to go down in the—the books, as it were.  But that‘s one of the things that the jury will have to consider.  Do you weigh that against what you think the ultimate punishment should be, whether that ultimate punishment is life imprisonment or the death penalty?

ABRAMS:  We are continuing our special coverage of a unanimous jury verdict that we are expecting in about 10 minutes from now in the trial of Zacarias Moussaoui, the only person tried in this country in connection with 9/11. 

The question:  Will he get life in prison or will he get the death penalty?  This has become a bizarre sentencing phase, with Moussaoui...

CORKE:  Yes. 

ABRAMS:  ... fighting with his own lawyers on a regular basis about exactly what he what going to say.  He decided he wanted to testify and talked about his hatred for this country, talked about his involvement in 9/11.  He said that he was supposed to fly a fifth plane into—into the Capitol. 

Aitan Goelman, former federal prosecutor, does it matter, do you think, whether Moussaoui is telling the truth, meaning, if the jurors believe there‘s no way that he was actually going to be flying the fifth plane, do you think that matters, in terms of the jury‘s verdict? 

GOELMAN:  Well, I don‘t think that matters, necessarily, in terms of, you know, the jury deciding already that he is responsible or partially responsible for the deaths on 9/11 that did happen. 

I think it might matter, just in terms of, you know, the picture that they get of his mental health.  I mean, if he is taking the stand and saying, I was supposed to be the fifth hijacker, and it was me and Richard Reid, and we were supposed to do something, and everybody else, including the government, is saying, nuh-uh, you know, the jury might, you know, kind of credit the defense‘s argument that he is delusional. 

ABRAMS:  Mmm-hmm. 

Sol Wisenberg, now on camera for us, Sol, what makes this, I would

assume, a—a particularly tough case for the prosecutors was, they had to

basically say in this case, he doesn‘t get to decide what he wants.  I

mean, it seems, because there is—there are a lot of people out there who

say, don‘t make this guy a martyr.  Make him suffer every day, sitting in a

in a dingy prison cell alone. 

Send him to Supermax in Colorado, where we hold the worst of the worst, and they‘re held for 23 hours out of 24 hours a day alone, with no human contact.  That will be the way that—that we make him suffer.  And the prosecutors have—have to sort of overcome that argument that he would suffer more in prison. 

WISENBERG:  Yes, that‘s the—they don‘t get to make that argument.  You know, that‘s a—that‘s a policy choice that is made by other people and made by Congress, when the statute is passed.  And it is—it is very tough.  I agree.

ABRAMS:  All right. 

WISENBERG:  It makes it very tough for them.  This is...

ABRAMS:  Sorry to interrupt you, Sol. 

We just got NBC‘s Pete Williams, who has been in the courthouse and has been covering this from the—from the beginning. 

Pete, bring us up to date. 

PETE WILLIAMS, NBC JUSTICE CORRESPONDENT:  Well, Dan, by my count, it‘s about 41 hours of deliberations over seven-and-a-half days.

And we were just in the process of asking the court whether, if the jury reached a verdict after 3:00, would we still hear about it the same day, given the fact that the jury normally quits work at 4:00, and they have to give notice to these off-site courtrooms, where people have been watching, or would they hold it until the next day?  And, obviously, now, we have our answer. 

So, after about 41 hours, which, as you know, is longer than normal, even in these federal death penalty cases, where you split the guilt phase and the sentencing phase, this is probably about 12 hours or so longer than it took the jury, for example, to return the death penalty in the Timothy McVeigh case.  So, it‘s very long. 

And I think, by the end of this, we will know why it took such a long time, if the verdict is life, because, on this 42-page ballot, the jury has to actually indicate how it voted on the mitigating factors.  So, we will know how they feel about the point you were just talking about, whether it would be a harsher punishment, whether giving him the death penalty would be, in essence, rewarding him, giving him a martyr‘s death, whether the jury bought the judge‘s—or the defense‘s allegation that he was schizophrenic, all those sorts of things.

But if it‘s—if it‘s life, I don‘t know that we ever will know why it took so long.  And I think it will be—it would be very surprising, Dan, if we actually heard from any of these jurors. 

They don‘t come here to the courthouse on their own.  They come to some off-site place.  And we don‘t know what it is.  They are driven here by the U.S. Marshals into the basement of the courthouse.  And then they go up into the courthouse and through the regular metal detectors.  And they will leave that way today, too.

And I—I‘m going to be very surprised if any of them decide to speak to us publicly.  They—the few bench conferences we have seen that have been unsealed in the last few days indicate that jurors are very, very concerned that their identities become public. 

ABRAMS:  And, Pete...


WILLIAMS:  So, this is not going to be one of those things where they come out and talk to us. 

ABRAMS:  Pete, and there were—there was a problem, a potential problem, with a couple of the jurors during this deliberation process, right? 

WILLIAMS:  Well, yes.

One of the jurors told the judge that she—she was afraid that her identity was on the Internet.  Now, what it turns out is, when the jury was not deliberating, when court was not in session, one of her co-workers said:  Aha, I know who you are.  You are one of the Moussaoui jury—jurors, and you think al Qaeda is evil. 

And this—this frightened the juror.  It turned out that the—the co-worker, he just sort of put two and two together.  Here is a woman who is never there at work when the court in session.  And then she was there when they weren‘t in session.  So, it wasn‘t exactly rocket science to figure out who she was. 

ABRAMS:  Yes. 

WILLIAMS:  But she told the judge she was very, very nervous about that. 

ABRAMS:  Pete, I have only got you for another 20 seconds.

Bottom line, did Moussaoui say on the stand that he wants to die? 

WILLIAMS:  No, he didn‘t say that. 

He—he—he—he was somewhat opaque about that, Dan, I think is the best way to say it.  And—and there was some conflicting testimony about precisely what he told the prosecutors and the defense lawyers in a meeting to make sure that he would be able to testify, a meeting before the evidence phase of the—this second phase of the trial started. 

So, it is not at all clear what his own wishes are.

ABRAMS:  All right. 

WILLIAMS:  But his lawyers said he wants to die.  And they said to the jury, you‘re his last chance. 

ABRAMS:  Pete Williams, the best in the business, we want to let you head back into the courthouse.  We will try and talk to you after we hear the verdict.  Thanks a lot for coming on the program. 


ABRAMS:  We are now about five minutes away. 

Pete is going to run into the courthouse, where that verdict is going to be read.  We are, at about the same time—we are told it will be almost simultaneous—that a court spokesperson will step to the microphone that you see right there on our screen and announce what this verdict has been. 

This is a case that has caused enormous controversy in this country, a case that many people have said has demonstrated that, when it comes to terrorists, it‘s tough to try them in the regular court system, that maybe there some be military commissions, based on the fact that Moussaoui has caused so much trouble in the context of this case, taken out of the courthouse, repeatedly yelling at the judge, insulting the judge, writing his own motions, initially, where he attacked the judge, attacked his lawyers, and—and seemed to really just want a soapbox to be able to espouse his views. 

This is not someone who tried to make the jurors like him.  And, so, the question is going to be:  Do they accept the prosecutor‘s argument that he doesn‘t get to decide what happens to hi, that if there‘s ever been a death penalty case, this is it, or might they accept the defense attorney‘s argument that, you know what, it‘s going to be a lot worse for him if he gets stuck in a supermaximum prison alone, living day after day of a monotonous, horrible life that he wishes he could end?

And that is one of the—the interesting questions that these jurors are being asked to answer. 

Sol Wisenberg, why are the jurors specifically being asked—I mean, I understand that this is what goes on in their heads.  But why, as part of this 42-page verdict form, are they being asked the question whether any jurors believe that life in prison will be a more severe punishment than a sentence of death? 

WISENBERG:  Well, it‘s—it‘s consistent with the position that the defense has taken, that that is actually the greater punishment for him, in two senses. 

It is—it is worse for him.  It‘s more—more of a torture for him, number one,  and, number two, that he won‘t be a martyr. 

But you said something that I think is very important, Dan, about this, which is the difficulty of bringing a case like this in the regular criminal justice system, not just because of the antics of this defendant, but because of all the other unique problems that you had.  Remember how he wanted to get evidence that most criminal defendants are allowed to get from somebody who is at Guantanamo, and it was officially denied.  And that became...


ABRAMS:  Sorry.  Go ahead. 

WISENBERG:  No.  Just, you know, there are a number of things that I don‘t think the Department of Justice thought through carefully when they decided to bring this into the regular criminal justice system. 

ABRAMS:  And, very quickly, what do—you think that they should have avoided the criminal justice system and tried to try him in some sort of military commission? 

WISENBERG:  Well, I‘m not real wild about military commissions either, unless the person is legitimately a combatant. 

But the—the thing is, they thought it was going to be just a regular—more like a regular trial.  If you recall, Attorney General Ashcroft gave a—a very big, you know, statement for the public when it happened that normally would be considered very unusual.

ABRAMS:  Exactly. 

WISENBERG:  And they have just run into a lot of problems.  They have got to be more careful, certainly, if they do it. 

ABRAMS:  We are about a minute away now from the time that we expect the verdict to be announced in the Zacarias Moussaoui case. 

The question, will he get life in prison or the death penalty?  Sometimes, these do not occur exactly on time, but we were told that, at 4:30 p.m., the court spokesperson will walk up to that microphone that you see there, and tell us whether it is going to be life in prison or the death penalty. 

Remember, Moussaoui pled guilty to the six conspiracy-related terrorism charges against him.  He basically said:  Yes, I was responsible.  Yes, I was a conspirator. 

But many believe that he has now tried to overstate his involvement in 9/11 by claiming that he and Richard Reid and someone else were supposed to fly a fifth plane on 9/11.  It seemed at the time almost an effort to get the death penalty. 

You see there massive security at the courthouse.  In fact, minutes after the verdict—after it was announced that there would be a verdict, there was an enormous security sweep done at the courthouse, such that all the reporters had to leave the front lawn in front of the courthouse, so that they could conduct that security sweep.  That sweep has now been concluded. 

And it is now 4:30.  So, we expecting that, at any moment, the court spokesperson will walk out those revolving doors and announce what this jury has found. 

Sol Wisenberg, do you expect that this is going to be a fairly brief statement of the ultimate verdict or do you think we‘re going to be going through a lot of pages of verdict forms? 

WISENBERG:  Well, if it‘s strictly a question of a court spokesman coming out I would expect it would be relatively brief. 

ABRAMS:  And the—sorry.  The ultimate out come would be the focus? 

WISENBERG:  Yeah.  Yeah.  I mean I‘m not sure I under the procedure as you‘ve described it.  But, you know, you are saying that the court spokesman is going to be coming out after the actual—an actual reading of the verdict in court? 

ABRAMS:  Well, let‘s check in with Kevin Corke again.  We‘re having our—keeping our eye focused very closely on that microphone where at any moment we‘re expecting the court spokesman (UNINTELLIGIBLE) to come out. 

Kevin Corke, how does it work?  Does the person come out at the same time as the verdict‘s being read up in the courthouse or afterwards?

CORKE:  He‘s going to come out afterwards we‘re told, Dan, and essentially what we‘re expecting is the court public information officer will come out, he will read the three main points that we‘re talking about, the three major conspiracy charges and then after that, it is probably that he‘ll go through the litany of legalese that a lot of folks that don‘t understand, well we‘ll sort of glaze over.  He still has to sort of get that out there, but we‘re told, at least we expect and understand that he‘ll come out first and make it very clear, count one, count two, count three, this is what we can expect, this is what is the recommendation of the jury has been.  That‘s what we‘re waiting for right now and if it works out that way, the good news is we‘ll have an understanding relatively quickly of what the jury has decided to recommend.  If he does it the other way, in other words, if he goes through the full paperwork, you know, people tend to glaze over.  I‘ve talked to Pete about this, he says that it‘s very probable, in fact, that he‘ll come out give us the one, two, three and do the rest of it after that—Dan. 

ABRAMS:  Are there only three charges that he‘s being seapted for here, Kevin? 

CORKE:  Yes, sir.  Only the three that we‘re dealing with right now and those are the conspiracy charges to commit an act of terrorism, conspiracy to destroy an aircraft, and conspiracy to use a weapon of mass destruction. 

Those are the three main charges that we‘re going to be dealing with today


ABRAMS:  And Aton Goelman, former federal prosecutor, tired the Oklahoma City bombing case.  This conspiracy charge means what? 

GOELMAN:  It means that he reached an agreement.  It doesn‘t have to be an explicit agreement, but there was a meeting of the minds between him and at least one other co-conspiracy to accomplish the goals of the agreement, which in this case, you know, are commit an act of terrorism, using a weapon of mass destruction or to pirate an air liner. 

ABRAMS:  We are again waiting for a sentence in the Zacarias Moussaoui trial.  The jury may be hearing that sentence as we speak.  We were told that at 4:30 p.m. Eastern Time the verdict would be read.  Again, the question here:  Does Moussaoui get life in prison or the death penalty.  This court has generally been conducted on time and so as we speak, the jurors may be announcing the verdict or the court may be announcing the verdict to the courtroom.  It could be a long verdict form, but we are told immediately there after, the court spokesperson is going to step up to that microphone and tell us exactly what that verdict was. 

Aton, very different case than the Oklahoma City Bombing case in terms of the factors to consider and how the jurors would weigh this kind of case, right?

OK, I‘m told we don‘t have Aton Goelman anymore.  Solomon Wisenberg, look, you follow the Oklahoma City bombing case.  Very different kind of evaluation that goes into this case than the Oklahoma City bombing case. 

WISENBERG:  Totally, substantially different.  I mean I would defer to Aton on that since he was there, but I would venture to say there‘s never quite been one like this.  Oklahoma City was a major, obviously, a major event with national impact, but you know, did not have the kind of earth shattering effect that 9/11 did for everybody in this country.  And then you have the whole issue of the antics of the defendant here, which is unlike anything I‘ve recently.

ABRAMS:  Let‘s watch.  We believe this is the court spokesperson—public information officer, with a verdict in his hand.  Let‘s listen. 

EDWARD ADAMS, PUBLIC INFORMATION OFFICER:  Good afternoon.  My name is Edward Adams, I‘m the court‘s public information officer.

In the case of United States vs.  Zacarias Moussaoui, as to count one, conspiracy to commit acts of terrorism transcending national boundaries, and count three, conspiracy to destroy aircraft, and count four, conspiracy to use weapons of mass destruction, the jury has found the defendant should be sentenced to life in prison, without the possibility of release. 

The jury verdict form does not indicate the number of jurors who voted for a sentence of life or the number of jurors, if any, who voted for a sentence of death.  All that the jury was required to report was that they were not unanimous in favor of a sentence of death. 

On each of the three counts, the jurors were asked to make findings about aggravating factors, which tend to support a sentence of death, and mitigating factors, which tend to support a sentence of life in prison.  Aggravating and mitigating factors which the jurors found to be proven were then weighed by them, assigned whatever weight they deemed appropriate, before they determined their sentence. 

The aggravating and mitigating factors were identical on all three counts. 

The jurors‘ findings on each particular factor were not identical. 

I will be reading to you from their findings on the aggravating and mitigating factors on count one.  The remainder of their findings will be posted on the court‘s website within the next hour. 

The prosecutors put before the jury 10 aggravating factors.  For an aggravating factor to be considered by the jury, they had to unanimously find that factor had been proven beyond a reasonable doubt. 

These are their findings on the aggravating factors.  The jury unanimously found the defendant knowingly created a grave risk of death to one or more persons, in addition to the victims of the offense. 

The jury unanimously found the defendant committed the offense—excuse me, let me start again—the jury did not unanimously find that the defendant committed the offense in an especially heinous, cruel, or depraved manner, in that it involved torture or serious physical abuse to the victims—or victims. 

The jury unanimously found that the defendant committed the offense after substantial planning and premeditation to cause the death of a person or to commit an act of terrorism. 

The jury unanimously found that the defendant entered the United States for the purpose of gaining specialized knowledge in flying an aircraft, in order to kill as many American citizens as possible. 

The jury did not unanimously find that the actions of the defendant resulted in the deaths of approximately 3,000 people. 

The jury unanimously found that the actions of the defendant resulted in serious physical and emotional injuries, including maiming, disfigurement and permanent disability to numerous individuals who survived the offense. 

The jury unanimously found that, as demonstrated by the victims‘ personal characteristics as individual human beings and the impact of their deaths upon their family, friends and co-workers, the defendant caused injury, harm, and loss to the victims, their families, their friends, and their co-workers. 

The jury unanimously found that the government had proven beyond a

reasonable doubt that the actions of the defendant were intended to cause -

and, in fact, did cause—tremendous disruption to the function of the city of New York and its economy. 

The jury unanimously found that the actions of the defendant were intended to cause and, in fact, did cause tremendous disruption to the function of the Pentagon. 

The jury unanimously found that the defendant has demonstrated a lack of remorse for his criminal conduct. 

Those are the jury‘s findings on the aggravating factors as to count one. 

Defense counsel put before the jury 23 mitigating factors.  For the jury to consider a mitigating factor, it had to be proven by a preponderance of the evidence, which is the lower standard than beyond a reasonable doubt, which was used on the aggravating factors. 

Also, the jury need not unanimously find that the mitigating factor had been proven.  If only one or more jurors found the factor had been proven, they could consider it when determining the sentence. 

These are the findings on the 23 mitigating factors.  For each, the jury reports the number of jurors who so found it proven. 

Five jurors found that, if he is not sentenced to death, the defendant will be incarcerated in prison for the rest of his life, without the possibility of release.  One juror found that the defendant has maintained a nonviolent record for the past four years while incarcerated in the Alexandria detention center, with minimal rules violations. 

One juror found that the Federal Bureau of Prisons found has the authority and ability to maintain the defendant under highly secure conditions. 

Three jurors found that, given his conduct and the likely conditions of his maximum security confinement, the defendant will not present a substantial risk to prison officials or other inmates if he is sentenced to life in prison without the possibility of release. 

No jurors found that a sentence of life in prison without the possibility of release, under strict conditions of the Bureau of Prisons is likely to impose, will be a more severe punishment for the defendant than a sentence of death. 

No jurors found that the defendant believes that his execution will be part of his jihad and will provide him with the rewards attendant to a martyr‘s death.

No jurors found that the execution of the defendant will create a martyr for radical Muslim fundamentalists and to al Qaeda in particular. 

Nine jurors found that the defendant‘s unstable early childhood and dysfunctional family resulted in his being placed in orphanages and having a home life without structure and emotional and financial support, eventually resulting in his leaving home due to his hostile relationship with his mother. 

Nine jurors found, the defendant‘s father had a violent temper and physically and emotionally abused his family. 

Two jurors found the defendant‘s father abandoned him and his siblings, leaving his mother to support and raise their children on her own. 

Three jurors found that the defendant was subject to racism as a youngster because of his Moroccan background, which affected him deeply. 

No jurors found the defendant‘s mother had a violent uncle or men unrelated to the family living in the home with the family. 

Four jurors found the defendant‘s two sisters and his father all suffered from psychotic illnesses. 

No jurors found that, even though the defendant arrived in England with no money and lived in a homeless shelter, he endured the hardship and, through perseverance, graduated with a master‘s degree from South Bank University. 

No jurors found that the defendant‘s mother‘s failure to provide her children with any meaningful religious training or practice...

ABRAMS:  We hear there the court‘s spokesperson reading through the various mitigating and aggravating is factor.  The bottom line, Zacarias Moussaoui gets life in prison. 

Pete William, NBC justice correspondent is with us. 

Pete, we‘re hearing a lot of numbers being thrown out, a lot of aggravating a lot of mitigating.  Boil it done for us. 

WILLIAMS:  Well, I thought, what‘s very interesting here, Dan, is that no jurors thought that sentencing him in life in prison would be a more severe penalty.  No jury found that it would—that giving him death would be rewarding him and making him a martyr, giving him the jihadist‘s death.  That was a—you could argue the main claim of the defense, and yet no juror agreed with that.  They didn‘t buy that at all and yet they still sentenced him to live in prison. 

Now, you know, it‘ important to point out that the jury could have checked yes to every single—yes we agree with all the prosecution factor, yes we agree with all the defense factors and still have decided to give him either life or death.  This is not a calculation, that you don‘t score this little sheet and see how many checkmarks you have for each side and count them up and do the verdict this way.  So, this is something of a guide to how they decided it, but they were bound by the calculations here.  Yes, they had to weigh, but in the end it‘s their decision and their decision alone. 

ABRAMS:  Pete, so they were not unanimous?  Do we know that that they were not unanimous in this verdict? 

WILLIAMS:  Yes we do.  We know that they were not unanimous in sentencing him to life in prison.  And of course, the way it works here in the federal system is the only way that he would be sentenced to death is if they were unanimous.  If they were not unanimous, split, then it‘s an automatic life in prison without possibility of parole and that‘s precisely what happened here. 

By the way, I should point out something at the beginning he gave unusual numbers.  He said counts one, three, and four.  As you would understand, those were the numbers from the original indictment, there were just the three counts here, but the surviving numbers from the original indictment were pulled through and that‘s why the numbers are sort of funny. 

ABRAMS:  And that‘s why there‘s a distinction between the fact that he pled guilty to six counts, correct?  But only three them he was eligible for the death penalty, right? 

WILLIAMS:  Yes, yes.  Precisely. 

ABRAMS:  And so again, Pete, we don‘t know what the breakdown was.  I mean, we say it‘s no unanimous, but we don‘t know if it was 9-3, 10-2, 7-8 -- 7-4, 7-6, 7-5?

WILLIAMS:  Precisely.  We may be able to guess when we see the entire ballot on all three counts.  But, that was not disclosed, so we just don‘t know whether there was one holdout and that‘s why it took so long or two or three or four.  We just don‘t know. 

ABRAMS:  All right, Pete Williams—I know you got to run, thank you very much for taking time, appreciate it. 

WILLIAMS:  All right.

ABRAMS:  Let‘s check back in with our panel.  Zacarias Moussaoui getting life in prison here, but Solomon Wisenberg, Pete pointing out we don‘t know exactly what happened.  We don‘t know exactly why, but the jurors did not do it based on what would inflict the most punishment on him. 

WISENBERG:  Yes, they completely rejected the kind of political arguments that were made by the defense and seemed to focus on more the traditional type of arguments that are made in capital cases, in particular, what we were talking about before the verdict the psychological background of the defendant and his family.  We can‘t say that for sure, but when you see that nine of the jurors voted in favor of that mitigating fact that had to do with psychological background, that‘s pretty significant. 

ABRAMS:  You know, I have to say I‘m somewhat stunned by the fact—again we don‘t know, as Pete points out—so nine of them said that he was put in an orphanage and that may have effected him psychologically.  Nine of them he had a violent father had a violent temper, that could just be nine of them saying, yeah, OK we believe that, but that doesn‘t mean that they‘re saying that‘s why they voted the way they did, right? 

WISENBERG:  You‘re absolutely right and it only takes one of them to say that irrespective of what we found or didn‘t found—find, I‘m not voting for the death penalty. 

ABRAMS:  He is going to go I would expect, Sol, and you may not know this as much because it relates to the Bureau of Prisons, but my understanding is he will probably end in Supermax in Florence, Colorado where the worst of the worst are generally held, Ramsey Yosef is there, another terror—another convicted terrorist.  Timothy McVeigh was held there.  Would you expect that that‘s where he would be sent? 

WISENBERG:  Are you asking me that because I missed the first part of your question? 

ABRAMS:  Yeah, I‘m asking if you would think that that‘s where he would be sent. 

WISENBERG:  Yes and that decision is going to be, you know, up to the—the judge can make a recommendation, but it‘s going to be up to the Bureau of Prisons and they basically answer to nobody. 

ABRAMS:  I should say I have been to Supermax in Florence, Colorado.  The highest security and highest tech prison in this country where people are held in isolation for 23 of 24 hours.  They‘re even—when they are given food, they try and limit the interaction between the guards and the inmates.  They try to make sure they put the food in its particular area then seal off the area where the guard had been.  Then open up the area to allow the inmate to go to—to get the food.  And very often the inmates there get one hour a day outside a very small cell. 

They have a shower inside the cell that is only turned on at certain times.  Everything is bolted to the walls to make sure that they can‘t use them as weapons.  It is in an isolated area to make sure that no one can try and help them get out.  The prisoners intentionally don‘t know exactly where the sky is or where certain locations are so that they can‘t get a sense of exactly where they are within the prison. 

This is prison that has been specifically designed for the worst of the worst.  And we would expect that Zacarias Moussaoui would be going there.  We are continuing our special coverage of Zacarias Moussaoui getting a life term, not the death penalty.  And again, what is particularly surprising from this verdict is the fact that these jurors said we‘re not giving him life because we think he is going to suffer more there. 

Kevin Corke at the courthouse.  Kevin, what‘s happening over there? 

CORKE:  Well Dan, as you might imagine there‘s still a great deal of security.  There are helicopters flying overhead and I should just point out that one of the reasons that when you and I were talking earlier we got the sense that maybe the prosecution should be a little nervous.  And when we talked earlier today, we talked about the timing, 35 hours of deliberation.  If this were something as serious as a death penalty, clearly they‘re going to take as much time as they need, but once it got over 40 hours a lot of us around here started feeling like you know, that sounds to me like maybe there might be a holdout.  Maybe one or two jurors who just are not going to get on board with dispensing the death penalty in this circumstance. 

So when the verdict was read, there was not an audible gasp here.  I think there were a lot of people here who really, quite frankly, were not surprised at the fact that Zacarias Moussaoui will now spend the rest of his natural born days behind bars. 

By the way, you pointed out that you‘ve been to Supermax.  I‘ve been there and it is an extraordinary facility.  If you‘ve never been—for you viewers who have not had a chance to see it, it is as tight and locked down a building as you can ever imagine.  Imagine moving five feet in between every five feet you have a wall, or in between ever 10 feet, as you saw, you might have another wall or a glass or a guard.  It‘s extraordinary.  And for anyone who will have to spend a lot years there it is devastating sentence to say the least. 

By the way, tomorrow, as Pete Williams pointed out, we expect we will hear from Zacarias Moussaoui sometime during the sentencing phase after 10:00 a.m. tomorrow.  That‘s when things are expected to get underway here again. 

ABRAMS:  And Kevin Corke, you were saying before this verdict came down that you thought the prosecutors would be very nervous.  It turns out you were exactly right. 

I‘ve got two former federal prosecutors with us—two former federal prosecutors who prosecutored Timothy McVeigh and did get the death penalty for him, but not for Terry Nichols the co-conspiracy who is now in prison for life.  Scott Mendlehoff and Aton Goelman, both join us. 

All right, Aton you were with us before the verdict, are you shocked by what you just heard? 

GOELMAN:  I am.  I‘m the one who was dumb enough to go out on a limb and predict death penalty in this case.  I—it was my understanding that the system they were using here is the same one that the judge used in the McVeigh/Nichols case under section 3582, the jury is instructed to come back with a unanimous verdict.  The McVeigh case they came back with unanimous verdict for death.  In the Nichols case they came back and they said we‘re hung, we find fim possible to reach agreement on either life in prison or death.  And in that case the district judge said, well, if you‘re not unanimous for death that means you‘ve essentially voted for life.  That‘s not the language of the statute, but that‘s the way the court interrepresented it. 

Here, I guess, the court sent the jury and they knew ahead of time if they didn‘t come back unanimously for death they could come back split and then Moussaoui would be given a life sentence.  So, when the anounment that there is a verdict it was my assumption that there was a unanimous verdict, obviously that‘s not the case. 

ABRAMS:  Right.  Scott Mendeloff I am stunned, I must say, that nine of the jurors were saying that they viewed a mitigating factor, the fact that he was in orphanages, nine of them said that one of the factors for them, in terms of imposing life, was that his father had a violent temper, etcetera.  I am surprised that the jurors viewed this case through that prism. 

SCOTT MENDELOFF, FMR. FEDERAL PROSECUTOR:  I am too, but one of the things that we found in preparing for the death phases in Nichols and McVeigh the death question is an extremely difficult one and it‘s not—if you get the wrong jury you risk this kind of result.  We were well aware of that going into McVeigh and we‘re selecting a jury in part to try to hedge against that.  In this instance, I have to believe that there are other factors that play beyond just those mitigating circumstances. 

ABRAMS:  Yeah, but I mean, weren‘t you surprised to hear that the reason that he‘s going to get life is not the one that we that we thought was going to be the big reason, which was we all expected that if he gets life that the jurors are going to say, you know what, it would be worse for him to serve life, he won‘t be a martyr, he won‘t get what he wants, but that‘s not what the jury said. 

MENDELOFF:  Yeah, I know, I know that‘s what they were saying, but I just find that very hard to believe.  I think that in a case like this, given what‘s at stake I find if hard to believe that there isn‘t more to this.  In other words, did they have some question about the nature and extent of his involvement in the 9/11 plot?  Did they have some ulterior motive in doing this?  And it‘s also possible that, unfortunately, the jurors that were selected may not have been entirely honest about their feelings about the death penalty as fundamental issue, that‘s one thing they weren‘t able to pursue in the McVeigh case and that‘s called witherspooning the jury, that‘s a supreme court case, in which jurors are tested as to whether they oppose the death—they have a fundamental opposition to the death penalty. 

ABRAMS:  You know.

GOELMAN:  Dan, do you hear the same thing that I heard?  Because Scott brings up an interesting point, that the fifth aggravating factor, no jurors agreed with the government on that? 

ABRAMS:  I guess so.  Yeah.

GOELMAN:  That was that his actions resulted in the death of 3,000 people? 

ABRAMS:  Well yeah, that‘s right.  And what‘s interesting about that is that they‘re saying we don‘t believe or we‘re not convinced his actions resulted in the deaths of 3,000 people, but when it came to all the other questions about the results of what happened with the planes hitting the World Trade Center, hitting the Pentagon, about all the damage it inflicted it seemed many of them believed that did—that was the result.  It seems kind of inconsistent, right Aton? 

GOELMAN:  It seems completely inconsistent, it seems internally contradictory.  But, I mean, that, you know, betray (ph) what Scott was talking about, which is some kind of, you know, residual doubt about the prosecution‘s (UNINTELLIGIBLE) theory that this guy is responsible for 9/11 or at least partially responsible.

ABRAMS:  But the bottom line is sometimes jury verdicts don‘t necessarily make sense.  Scott Mendeloff, in the Terry Nichols case the jurors came back with a verdict that people could argue really didn‘t make any sense as to being consistent with what he did or didn‘t do. 

MENDELOFF:  Well absolutely.  In the Nicole‘s case, in particular, and I actually did not take part in that trial, although Aton did, but in that case the evidence was just absolutely overwhelming that he was a co-conspirator with McVeigh and the fact this they did not even convict of him of first degree murder in connection with the attack is even to this day, shocking to me. 

ABRAMS:  But Aton, the verdict itself in the Nichols case didn‘t quite make sense, right? 

GOELMAN:  Yeah, I mean, they convicted him of manslaughter on the one hand and then found him guilty of the conspiracy to, you know, commit acts of terrorism and us a weapon of mass destruction.  But in that case, I mean, that‘s something that you see in jury deliberations, Dan, when you talked about jury verdicts not making sense, sometimes you‘ll very a compromised verdicts where, you know, certain jurors who are hawks will agree to give up on certain things and certain jurors who are doves will agree to give them certain things, and they‘ll come up with a verdict that doesn‘t make sense from.... 

ABRAMS:  All right, Aton, hang on a sec, let me just interrupt you.  Let‘s listen to this press conference. 

LISA DOLAN, WIFE OF SEPTEMBER 11 VICTIM:  My name is Lisa Dolan.  I lost my husband, Captain Bob Dolan, on 9/11 at the Pentagon.  And on behalf of myself, and my September 11 friends I‘d like to take this opportunity to thank a number of people who have been extraordinary throughout this trial. 

First, we would like to thank a special group of men from the federal marshal‘s office and the court security office.  These gentle men have been with us throughout this trial ensuring our safety and making sure we‘ve had everything we‘ve need, even if it is just a smile. 

We‘d like to specifically point out the efforts of Wendell Samuels (ph), Gary Cooper (ph), Robert Wood (ph), Mr. Randall (ph), and Joe Morales (ph).  We‘d also like to echo Judge Brinkema‘s sentiments and send kudos to both the prosecution and defense team, as well as the men and women of the jury, they all had difficult jobs to accomplish.  But our very special thanks to the prosecution team and special recognition to David Novak, David Raskin and Rob Spencer.  Their hard work and efforts over these many years has been incredible. 

Lastly, we would be remiss if we did not thank the FBI and the Department of Justice, who have taken this journey with us these last four years.  Their understanding and their compassion throughout this experience has been unparalleled. 

Special thanks to Karen Sphinx (ph), Harry Brady (ph) and Crystal Greago (ph). 

And I‘d like to turn it over to Rosemary Dillard. 

ROSEMARY DILLARD:  It‘s been a long journey.  And as Lisa was thanking everybody we thank you for getting the news out to America, but you need to know—you need—


DILLARD:  OK! OK, but you need to know is you guys have had a hard job listening to us every day.  And you‘ve reported us pretty accurately, and I thank you for that.  What the jury came up with today and his sentencing is not going to be with what all the families want, but what is shows the world is that we‘re not going to stand for terrorists to come to our country and to be let loose.  He will be in confinement he will not be released and we can all take pleasure or gratitude in that.

He‘s a bad man, but we have a fair society here.  And I think, all of the

families will agree that the judge, the jury, we showed the world what we

will do to terrorists and that we



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