Now that a jury has delivered a verdict that al-Qaida conspirator Zacarias Moussaoui is eligible for the death penalty, his lawyers face an uphill battle as they try to save a client who apparently wants to die.
“I’m glad I’m not writing life insurance on the guy,” Vermont Law School professor Stephen Dycus said Monday after a jury opened the door for prosecutors to present wrenching, gruesome detail on the events of Sept. 11, 2001.
Dycus and other legal experts say the jury still may decide to spare Moussaoui’s life, but suggest he may have sealed his fate by taking the witness stand. He testified that he was to have flown a fifth plane targeting the White House while fellow 9/11 conspirators flew planes into the World Trade Center in New York City, the Pentagon and a field in Pennsylvania.
As a defense lawyer, “you are normally worried about the government hurting you; in this case, it’s your client,” said Jeffrey O’Toole, a Washington lawyer with an extensive background in death penalty cases.
A worst-case scenario, legal experts say, would be the admitted terrorist conspirator once again testifying, this time in the upcoming second stage of the proceeding where jurors will decide whether to sentence him to death.
Inviting the death penalty?
When the sentencing trial resumes Thursday, the testimony will include families of Sept. 11 victims who will describe the human impact of the 9/11 attacks that killed nearly 3,000 people.
“I would not be surprised if he doesn’t invite them to give him the death penalty,” George Washington University law professor Stephen Saltzburg said.
Moussaoui’s own performance likely would eclipse any of the defenses that his legal team could erect.
The defense has indicated it will try to call a doctor to testify that Moussaoui was schizophrenic and sociologists who will describe his impoverished upbringing in France and the racism he faced there and in England because of his Moroccan ancestry.
“You want to put on a case that enables the jury to see the humanity of this person,” said Richard Dieter, executive director of the Death Penalty Information Center.
So far, Moussaoui’s performance has offered little in the way of humanity, at least in the eyes of relatives of Sept. 11 victims.
“This man has no soul; he has no conscience,” said Rosemary Dillard, whose husband, Eddie, died in the attacks.
Parts of the first phase of Moussaoui’s sentencing trial went badly for the government, which had to acknowledge misstep after misstep in handling leads about Moussaoui and other terrorists in the summer of 2001.
Moussaoui was nowhere near the attacks on Sept. 11, but rather in jail in Minnesota where he had been for much of the previous month on an immigration charge.
And until last week, he’d maintained he wasn’t to have been part of the Sept. 11 attacks.
The defense suggested Moussaoui would say anything to derail his own defense so he could achieve martyrdom through execution.
Moussaoui was arrested Aug. 16, 2001, after his attempts to obtain flight training aroused suspicion. He lied to agents when he was arrested, denying he was a terrorist and saying the flight training was for personal enjoyment.
Prosecutors argued that if Moussaoui had confessed his al-Qaida membership and his intent to hijack an aircraft, federal agents could have tracked down most of the Sept. 11 hijackers and thwarted or at least minimized the attacks.
On each of the three counts considered by the jury, they found that Moussaoui intentionally lied to federal agents, and did so “contemplating the life of a person would be taken or intending that lethal force would be used.” Further, they determined at least one person died Sept. 11 as a direct result of the lies.
U.S. District Judge Leonie Brinkema asked the jurors whether their verdicts were all unanimous, and all nodded affirmatively.
A factor that could play in Moussaoui’s favor is that it’s one thing to declare him eligible for the death penalty; it’s another to actually sentence him to death.
“The second decision ... becomes intensely personal,” said Northwestern University Law Professor Ronald Allen. “It’s moral and complicated and messy.”
But Moussaoui’s lawyers may be up against insurmountable odds.
“You’re going to see some powerful testimony from the families,” Saltzburg said. “It’s going to be a chance for some of them to get closure as best they can.”