Death penalty and the images of 9/11
on Oct 20, 2005 at 7:14 pm
(Seven months ago, the Supreme Court refused to hear an appeal by Zacarias Moussaoui, the only person charged with a crime in the U.S. for a role in the September 11, 2001, terrorist attacks. He has since pleaded guilty to terrorism charges, and the only issue remaining is his punishment. This post is part of continuing coverage of the Moussaoui case as it moves toward a death penalty trial early next year, and a potential return to the Supreme Court.)
If, as seems likely, the case of Zacarias Moussaoui is again appealed to the Supreme Court, a key issue may turn on how the government puts before the jury the emotionally charged facts and images of what happened on 9/11. In a little noticed legal contest being waged partly under seal, and thus partly beyond public view, Moussaoui’s lawyers and federal prosecutors are striving for very different death penalty proceedings. It will be up to the trial judge, U.S. District Judge Leonie M. Brinkema of Alexandria, Va., to sort this out before that trial starts next Jan. 9. (The documents so far made public are available on the website of the U.S. District Court for Eastern Virginia, docket 01-455.)
In a motion filed under seal early this month, Moussaoui’s defense team asked the judge to break up the death sentencing hearing into three parts. There would be decided tactical advantages of that, the most important being that, in the first — and potentially crucial –part, the jury would not hear and see the sights and sounds of the devastation on the day of the terrorist attacks. The sounds of the cockpit voice recorders as jet planes were hijacked and crashed, video footage of the World Trade Centers collapsing, and pictures of thousands of victims would be kept out of that first stage, giving Moussaoui what his lawyers hope would be a better chance of convincing the jury that he is not eligible for a death sentence.
Federal prosecutors, however, want a two-step sentencing hearing, with those same sights and images coming into the first phase, thus enhancing the prospect that the jury would find Moussaoui’s role enough to make him eligible for the death penalty. The government makes the point that two-stage capital sentencing procedures have been used before, but there has never been a “trifurcation” ot a death penalty proceeding.
This dispute has emerged partly into public view because the prosecutors’ response to the Moussaoui legal maneuver has been disclosed, as has Moussaoui’s reply. His original motion remains under seal. The debate is couched in the complex language of the federal death penalty law, but the stakes are obvious.
Moussaoui was not one of the hijackers who actually carried out the 9/11 attacks; he had been arrested nearly a month before, and was in federal custody. Thus, the government, in order to obtain a death sentence, must link him directly to the deaths of the 9/11 victims. It will do that, partly, by showing that he lied to federal agents while in custody about terrorist plans, and thus helped the 9/11 plot go forward. Building that case is what lies behind the dispute over the sentencing phase.
Moussaoui’s legal team has made the strategic decision that the best chance of sparing his life is to have a narrowly focused opening step, to show that he did not intend to bring about what actually happened on 9/11, and thus did not cause the deaths that occurred. So, part one of the proceeding would have only two issues: intent, and “causation.” Those are what his lawyers call “the threshold factor” in determining whether he is even eligible for a death sentence.
The second factor in determining whether he is “death-eligible” would be the aggravating factors of the crimes on 9/11. Only if he loses on both of those points could the jury even consider a death sentence. Prosecutors have said they will prove three aggravating factors: that Moussaoui caused a grave risk of death, that the deaths he helped bring about came in “an especially heinous, cruel, or depraved manner” involving torture or serious physical abuse, and that he took part in a significant plan of terrorism resulting in the deaths.
Moussaoui wants to split off the aggravating factors inquiry, until after the jury makes up its mind about intent. His teams insists he has a good case on that point and, indeed, they appear to have concluded that he could prevail, and thus promptly escape a death sentence at the first step. Their only real chance of doing that, they have told the judge, is to keep out the 9/11 images, postponing them until the second step (analyzing aggravation), if there is a second step. It would seriously prejudice him on the intent question, his team has said, if that evidence comes in at the outset.
(The defense lawyers and prosecutors agree that the final step in a sentencing proceeding — that is, the third step in Moussaoui’s plan, the second step in the prosecutors’ — would be the jury decision for or against actually imposing a death sentence on Moussaoui after he had been found death-eligible.)
Prosecutors counter the “trifurcation” proposal by arguing that there is no way to divide up the intent and aggravation steps: the jury must know as much as they can about Moussaoui, and about 9/11, and that includes the portrayals of the events of that day, and the array of the victims. (The prosecutors are willing to hold off until the third segment any testimony from the victims’ families about how 9/11 affected them.) The government team insists that its evidence will overlap the intent and aggravation issues, so it cannot be separated out in a way that would not confuse the jury. Moreover, it contends, there would have to be three layers of arguments by lawyers to the jury, and Moussaoui would have three chances to testify, complicating and lengthening the whole proceeding.
A narrow first step, the government contended, would give Moussaoui “a benefit to which he is not entitled — that is, the luxury of having the jury decide a determinative issue before they know much about him or his crimes.”
Moussaoui responds that the government will have his guilty plea, and the facts he admitted in making that plea, for use in the intent segment. It would only create at that point “a genuine risk that the emotions of the jury will be excited to irrational behavior” if the government is free to present “the carnage” of 9/11 while the jury is supposed to focus only on Moussaoui’s intent, or lack of it.
The judge has no timetable for deciding on the exact nature of the sentencing proceeding. She may hold a hearing before making up her mind between the two competing proposals.
