An advantage for Moussaoui
on Nov 18, 2005 at 11:42 pm
(This report is part of a continuing series on developments in the terrorism case of Zacarias Moussaoui in the wake of the Supreme Court’s refusal on March 21 to hear his pre-trial appeal. Moussaoui has since pleaded guilty, and faces a death penalty proceeding now set to begin Feb. 6 in U.S. District Court in Alexandria, VA.)
A federal judge has given Zacarias Moussaoui, the only individual accused in the U.S. of crimes related to the terrorist attacks of Sept. 11, 2001, a partial but significant victory in arrangements for the first phase of his death penalty trial. The judge’s order gives defense lawyers a chance to head off a possible death sentence in an abbreviated, preliminary phase of the penalty proceeding, without the jury hearing or seeing the government’s emotionally charged evidence about those attacks and the victims. The judge’s order can be found here.
In an order that has just become available, U.S. District Judge Leonie M. Brinkema during a closed-door hearing on Monday granted much of what the defense team asked. She agreed to break the death penalty trial into two phases. The first would be arranged just as Moussaoui’s lawyers had asked: it would deal only with a simple question of whether Moussaoui is eligible for a death sentence — that is, did he take action intended to cause deaths on 9/11, and did his action in fact cause those deaths. If the jury rejects the government’s theory of his eligibility at that point, that would rule out the death penalty.
A second phase would be held only if the jury accepts that the government has proven, beyond a reasonable doubt, that Moussaoui did intend to cause the deaths, and his action resulted in deaths. In that second phrase, the jury would weigh aggravating and mitigating factors, another death-eligibility equation. If it finds the aggravating factors outweigh mitigating evidence, the second phase would conclude with the jury deciding, finally, whether death is the sentence Moussaoui should in fact receive.
The government did not object to a two-phase proceeding, but it wanted the first phase to be considerably broader than it now will be. It wanted, during that phase, to bring before the jury evidence to show that Moussaoui committed a crime that was “especially heinous, cruel, or depraved.” To do that, it would show videotape and photos of the two hijacked planes flying into the World Trade Center towers, sights and sounds of the collapse of the towers and the deaths that resulted, and pictures of more than 2,800 victims — “so the jury properly understands,” as prosecutors have put it, “who was murdered instead of merely hearing statistics.”
In addition, the prosecutors wanted, in that first phase, to play the cockpit voice recorders from Flight 63, the hijaced plane on which the passengers rebelled against the hijackers, resulting in that plane’s crash into a farm field in Pennsylvania, killing all aboard.
And prosecutors wanted to offer victim-impact testimony from relatives.
At the first phase now envisioned by the judge, the government is going to try to prove Moussaoui’s intent and his role in actually causing deaths by focusing on his “lying to [federal] agents about his knowledge concerning September 11”. That is the act, prosecutors will seek to show, that Moussaoui took contemplating that deaths would occur because his lies kept the government from taking action to head off the carnage.
Defense lawyers plan to try to counter that evidence by arguing that government officials had vastly more information about a possible terrorist attack of the kind that occurred than Moussaoui did, and thus could have acted on that information, so that any lies he told to agents could not have been the reason that deaths occurred.
The videotape, photos, victims’ photos, and victim impact testimony, Brinkema said in her new order, are “not relevant to the first phase” as she now plans for it to unfold. They could come in at the second phrase, she said, but urged the two sides to “work out stipulations that might avoid the need for this evidence” — at least a hint that she is concerned about the potential prejudicial effect on jurors in the proceeding.
