I SAY FEED HIM A STEADY DIET OF PORK

Jury Rejects Death Sentence for Moussaoui

By William Branigin, Jerry Markon and Timothy Dwyer
Washington Post Staff Writers
Wednesday, May 3, 2006; 4:39 PM

A federal jury decided today to spare the life of Zacarias Moussaoui, sentencing the avowed al-Qaeda conspirator to life in prison for his role in the Sept. 11, 2001, terrorist plot.

The verdict was reached after seven days of deliberations following a two-phase death penalty trial that lasted six weeks.

The jury of nine men and three women began deliberating April 24 to determine whether Moussaoui, 37, a member of the al-Qaeda network headed by Osama bin Laden, would get the death penalty or life imprisonment for his role in the Sept. 11 plot.

The same jury found Moussaoui eligible for the death penalty April 3 after three weeks of hearings in the first phase of his death penalty trial in U.S. District Court in Alexandria, Va. In the second phase, which began April 6 and featured testimony from relatives of Sept. 11 victims, the jurors had to decide whether to actually apply capital punishment or sentence Moussaoui to life in a federal penitentiary without possibility of parole.

Moussaoui is the only person charged in the United States in connection with Sept. 11.

In trying to reach their decision, the jurors had to grapple with a 42-page "special verdict form" that listed the charges against Moussaoui, as well as a number of aggravating and mitigating factors. A day after beginning their deliberations, the jury asked for a dictionary, but U.S. District Judge Leonie M. Brinkema denied the request on grounds that giving them one would be like putting "extraneous" evidence in the jury room.

The issue came up again April 28 when Brinkema admonished the jurors not to do any independent research after learning that one of them had looked up the word "aggravating" in a dictionary at home. Brinkema said that after speaking privately with the errant juror, she concluded that he had not committed a "material" violation of her previous instructions, and she allowed deliberations to continue.

The episode underscored the jury's dilemma in weighing the "aggravating factors" advanced by prosecutors against "mitigating factors" proposed by the defense. Among the aggravating factors was whether Moussaoui was responsible for the nearly 3,000 deaths on Sept. 11. Mitigating factors included whether sentencing him to death would essentially play into his hands by fulfilling his previously stated wish to become a "martyr."

Just before the case went to the jury, closing arguments reflected the intense feelings that animated the sentencing trial. Prosecutors flashed photographs of some of the nearly 3,000 people killed in the Sept. 11 attacks and played videotapes of victims jumping from the burning World Trade Center.

Earlier in the second phase, the prosecution had presented relatives of victims, many sobbing on the stand, who told of their pain and loss. They showed the trade center towers falling and played 911 calls of frantic people about to be overcome by smoke and flames.

They also played for the first time the cockpit voice recording from United Airlines flight 93, which crashed in a field in Pennsylvania as four Sept. 11 hijackers on board tried to fly it toward Washington. The recording captured some of the sounds of a revolt by passengers determined to prevent the hijackers from carrying out their plan, which reportedly was to crash the plane into the U.S. Capitol.

"This is the United States of America, and we are not going to put up with a bunch of thugs who invoke God's name to slaughter 3,000 people," Assistant U.S. Attorney David J. Novak said as the prosecution argued for the death penalty. Prosecutors called Moussaoui "pure evil" and said "there is no place on this good Earth" for him.

Defense attorneys countered that jurors should reject the "easy answer" of sentencing Moussaoui to death. Because Moussaoui is seeking martyrdom, defense attorney Gerald T. Zerkin suggested, the jury should do the opposite and force him to spend the rest of his life in prison.

"He wants you to sentence him to death," Zerkin said. "He is baiting you into it. He came to America to die, in jihad, and you are his last chance."

The jury faced only two choices in the case: If the jurors could not agree unanimously on the death penalty, a life sentence would be imposed, and Moussaoui mostly likely would be sent to the federal "supermax" prison in Colorado.

Jurors looked grim as they filed out of the courtroom to begin deliberations after the closing arguments. The defendant, a French citizen of Moroccan descent, did not look at them but had earlier smiled when prosecutors described the suffering of victims of the attacks on the trade center and the Pentagon. As he left the courtroom for a midmorning break, Moussaoui had shouted: "You'll never get me, America! Never, never!"

In the first phase of the sentencing trial, Moussaoui took the witness stand over the strong objections of his court-appointed defense attorneys, whose role he vigorously rejects. He then undermined his defense by testifying that he was supposed to hijack a fifth airplane on Sept. 11 and fly it into the White House with a crew that included British "shoe bomber" Richard Reid. He expressed a desire to kill Americans and explained how he was prepared to cut the throat of a passenger or flight attendant during the hijacking.

Defense lawyers called their client a liar who was trying to inflate his role in the Sept. 11 plot in his quest for a death sentence. It was also noted that Reid, who was arrested in December 2001 after trying to set off explosives in his shoes aboard a U.S. airliner bound from Paris to Miami, had not been in the United States at the time of the Sept. 11 attacks.

Moussaoui pleaded guilty last year to six federal counts of conspiring with al-Qaeda. But until his testimony in his sentencing trial, he had insisted that he was to have been part of a second wave of attacks -- not those of Sept. 11.

Three of the six counts, including "conspiracy to commit acts of terrorism transcending national boundaries," carry the death penalty.

Although Moussaoui was sitting in jail Sept. 11, prosecutors convinced the jury in the trial's first phase that he was culpable for the deaths that day because he lied to the FBI, allowing the plot to go forward. Moussaoui was arrested on an immigration charge in August 2001 and questioned by federal agents after his behavior at a Minnesota flight school aroused suspicion.

The mercurial Frenchman took the stand again in the second phase of the trial, and again he seemed bent on doing all he could to turn jurors against him. He reaffirmed his claim of involvement in the Sept. 11 plot and said his only regret was that more Americans were not killed. He said he found it "disgusting" that weeping Sept. 11 survivors and family members would share their grief on the witness stand and described the testimony of one Pentagon survivor as "pathetic." He also expressed a desire to "exterminate" American Jews and said he wished to "destroy" America.

Asked by prosecutor Robert A. Spencer whether it was his choice to accept a suicide mission from bin Laden, Moussaoui replied, "It was my pleasure." He said he would carry out such a mission "today" if he could.

"Cruel, heinous and depraved does not even begin to tell this story," Assistant U.S. Attorney David Raskin said in his closing argument on April 24 as pictures of Sept. 11 victims flashed on television screens and Moussaoui smiled. "It's more than lack of remorse, ladies and gentlemen. It's hatred. It's . . . unexplainable, incomprehensible evil, and it's everything you need to know about this defendant."

Defense attorneys conceded that their client lacked remorse. Calling Moussaoui's testimony "callous," Zerkin said: "It is easy to despise Mr. Moussaoui. He has invited you, encouraged you, to do that, sitting there smugly, almost as if he thinks this is all a game."

Zerkin said Moussaoui is a "sacrificial lamb" and noted that the government has not put on trial higher-ranked al-Qaeda leaders who have been captured, such as Sept. 11 mastermind Khalid Sheikh Mohammed. He and other operatives are being questioned in undisclosed locations.

"No, it's just Mr. Moussaoui," Zerkin said, "a veritable caricature of al-Qaeda terrorist, the operative who couldn't shoot straight."

Prosecutors suggested in their response that Mohammed and other al-Qaeda leaders would be brought to trial eventually.

The Justice Department chose to try Moussaoui in Alexandria -- instead of New York, where most major terrorism trials have been held -- in part because the jury pool is considered more conservative in Virginia.

Yet, in their effort to secure Moussaoui's execution, prosecutors were fighting the current of recent history: A federal jury in Alexandria has never voted for a sentence of death. Five times since 1998, in cases with defendants ranging from convicted spy Brian P. Regan to two members of the Mara Salvatrucha street gang convicted of killing a federal witness, juries instead chose life in prison.

Federal juries nationwide have also strongly preferred life over death. Since 1991, juries have voted for death sentences 51 times, compared with 93 sentences of life in prison, according to the Federal Death Penalty Resource Counsel. Since 2000, amid publicity about the exoneration of some death row inmates by DNA and other evidence, federal juries have returned 69 life sentences, compared with 29 for death.

In the case most comparable to Moussaoui's, the 2001 trial of four al-Qaeda members accused of blowing up U.S. embassies in East Africa, a federal jury in New York chose life in prison instead of death for the two defendants eligible for death. Ten jurors wrote on the verdict form that executing one of the men would make him a martyr, and five said life in prison would be a greater punishment.

"Killing isn't easy, and jurors only do it when they perceive it's absolutely necessary," said Kevin McNally, a defense lawyer affiliated with the death penalty resource group, which tracks federal capital cases nationwide. He added, however, that jurors are more likely to vote for death when they are swept up in a "tidal wave of emotion," such as in the Moussaoui case, and that Sept. 11 separates the Moussaoui prosecution from all others.

Sept. 11 "is a symbol of this country, a national tragedy," McNally said. "Someone has got to pay."

Staff writer Debbi Wilgoren contributed to this report.

Breaking: Verdict reached in Moussaoui sentencing

Update: Life in prison.

Update: The juror numbers on the various aggravating and mitigating circumstances will be posted on the court website within the hour. I’ll have the link when it goes up. Worth noting now that the life sentence was not unanimous, and also that none of the jurors considered the possible martyrdom effect of executing Moussaoui to be a mitigating factor in the sentence.

While we’re waiting for details, watch this.

Update: Instant reaction. Rusty is mortified, Stop the ACLU is relieved.

Update: Ace makes it two to one in favor of outrage and three to zero in favor of prison justice. Hot Air affiliate Expose the Left has video of the announcement.

Update: Even the professionals were blind-sided by this one.

Update: Meryl thinks they made the right call, as does Pieter Dorsman, who says Moussaoui has “residual asset value.”

Update: James Joyner: “Those who argue that the current system of capital punishment is arbitrary and capricious have much more ammunition now.” Still waiting for the answers to the juror questionnaire to be posted.

Update: Someone do me a favor and explain the “at least we denied him martyrdom” logic to me. Does that apply to Bin Laden too? If Moussaoui turns around tomorrow and says the worst thing we could do to him is supply him with lots of prostitutes, do we call the Mustang Ranch?

Update: TalkLeft sees good lawyering at work. Jay Reding gives a grudging thumbs-up because … at least we denied him martyrdom. Sigh.

Update: Ace follows up on his last post by wishing for — well, go read. Here’s a hint: it rhymes with “bang cape.”

Update: Here’s a fun quote via the New York Times for all the at-least-we-denied-him-martyrdom suckers:

“America, you lost!” Mr. Moussaoui shouted as he was led from the courtroom after the verdict was announced. His outbursts and rantings had become routine.

Update: Bill Quick wonders when the first round of hostages will be taken in the Middle East as ransom for Moussaoui’s release. Hey, come on, Bill — at least we denied him martyrdom.

Update: Roger L. Simon notes that Moussaoui carries a virulent, highly infectious disease, and hopes that he’ll be isolated for the sake of the rest of the prison population. And for our own.

Update: Charles Johnson doesn’t want to say he told you so, but he told you so. Tammy Bruce (who’s hanging out tonight with Wafa Sultan!) says throw the switch. And the Political Pit Bull has video of Rudy Giuliani trying to put on a happy face, despite his own feeling that Moussaoui deserved death.

Update: Bush responds to the verdict in his typical canned, hokey manner. And the Daily Telegraph has a selection of Moussaoui quotes. “I would like to fly in a professional like manners one of the big airliners.”

Update: Kim Priestap at Wizbang puts it succinctly: “Moussaoui dared the American people on that [jury] to kill him and they blinked.” True enough, Kim. But look on the bright side. No martyrdom!

Update: Newsmax reports on Giuliani’s comments on Hardball. Video link is above.

Update: Robert Spencer says let the jailhouse conversions begin!

Update: Here’s the PDF of the juror’s answers to the sentencing questionnaire. It’s from the District Court’s website. Haven’t had time to look at it yet, but I did read Beth’s post noting that Moussaoui is headed for Supermax. Follow the links.

Update: Evan Coyne Maloney echoes Charles Johnson in wondering why Moussaoui was in court to begin with, while Goldstein seems to think feeding, clothing, and entertaining this degenerate for the next 40 years is somehow a defeat for America. Don’t you get it, Jeff? We denied him martyrdom. We won!

Elsewhere, Misha’s being Misha. Content warning.

Update: Reading the juror answers now. Compare the responses to B and C at the bottom of page 2. Is the “emotional injuries” clause the difference?

More, from pages 6 and 7. I’m going to screencap this for the sake of the at-least-we-didn’t-martyr-him people:

More, from page 8. Only three jurors thought the defense proved Moussaoui’s involvement in 9/11 was “minor.”

Update: Finished reading the questionnaire. You know why he got life instead of death? In all likelihood, here’s why:

Those are the only two mitigating factors which a majority of jurors — not all, mind you, but a majority — agreed the defense had proved. The highest number for any other factor was five. The questionnaire didn’t ask them to weight the factors so we can’t know for sure how important each one was relative to the others, but in all probability the reason this guy will live instead of die is because … he had a rough childhood.

But hey. At least we didn’t martyr him.

Update: Further thoughts on the last update, but first this from WaPo:

Edward Adams, the court spokesman, announced the verdict outside the courthouse and said the 12 jurors “were not unanimous” in favor of a death sentence for Moussaoui, meaning that he automatically gets a life sentence without possibility of parole. He said the verdict does not indicate how many jurors voted for a death sentence and how many opted to keep the defendant in prison.

It only takes one holdout to force a life sentence, of course, and it should be noted re: the questionnaire that three jurors wrote in a mitigating factor of their own — namely, Moussaoui’s limited knowledge of the attack plans. Insofar as they felt strong enough about it to add it to the court’s list, we can probably safely assume that it carried a lot of weight for those who signed on to it. Which means my emphasis on the childhood factor might be misplaced, especially if the three write-in jurors were the only holdouts. Let’s see if anyone’s willing to talk to the press about deliberations and what the vote was. WaPo is pretty comfortable using anonymous sources from what I understand.

Update: Ace mentioned this in one of his earlier posts but I want to highlight it too. Don’t jurors in a capital case have to be “death-qualified” in voir dire? That is, they have to at least be open to the possibility of imposing death instead of life; if they object to capital punishment on principle, they’ll be disqualified. Or so I’ve always understood. What’s up, then, with the first mitigating factor, which also happens to be the one with five jurors signed on to it?

If (and that’s a big if) one of those five used this factor as the justification to impose life instead of death, then, er, isn’t that person in fact opposed to capital punishment on principle?

Update: Hot Air’s own Bryan Preston tries a common-law argument by noting, “He could have averted a war.”