Thanks largely to Zacarias Moussaoui himself, prosecutors have cleared their highest hurdle that might deter execution of the Al-Qaeda conspirator. The path to the death chamber might still contain unpleasant surprises for the government.
When the case began more than four years ago, it looked easier. The government at first thought Moussaoui had been intended to be a 20th hijacker on Sept. 11, 2001. Once it became clear that wasn’t his role, the government dialed back its case.
It didn’t want to drop the death penalty for the high-profile prisoner who admitted having been trained to fly a plane in an attack similar to Sept. 11. The biggest problem was that Moussaoui was in jail on 9/11 and had been for almost a month.
The final government theory bore some resemblance to a pretzel: Moussaoui was directly responsible for deaths on 9/11 because he hadn’t confessed all he knew when arrested. Thus, the contention was, the FBI was prevented from moving to block some or all of the four hijackings that day.
Another twist was added when many of the government witnesses for the prosecution gave as much or more comfort to the defense: They acknowledged misstep after misstep in handling leads about Moussaoui and other terrorists in the summer of 2001, raising doubts about what if anything Moussaoui could have said to change things.
Then Moussaoui took the stand over the objections of the court-appointed defense lawyers. He abandoned claims he’d made for three years that his plot to fly a 747 into the White House was unrelated to 9/11. For the first time, he said he had been training to hijack a fifth jetliner on 9/11 and fly it into the White House.
“This stage of the penalty phase was probably harder for the government, but that was before he took the stand and connected all the dots for the jury,” said Richard Dieter, executive director of the Death Penalty Information Center, a group that advocates more equitable administration of the death statute.
“Whether this act (lying to agents) fits the federal death penalty law may have been a tougher question without his testimony,” Dieter added. “Whether his acts a month or months ahead of time directly caused these deaths is a good question. The fact that the defendant himself says they were directly connected doesn’t necessarily prove it, but it was enough for the jury.”
Now testimony shifts in the second phase to whether Moussaoui deserves the death penalty for his acts. Prosecutors will introduce evidence of how heinous the crime was, while the defense will try to show mitigating factors.
What do they have: Prosecutors can pick among the personal tragedies of the families of nearly 3,000 people who died in the 9/11 attacks. The defense has indicated it will try to call a doctor to testify Moussaoui was schizophrenic and sociologists to describe his impoverished upbringing in France and the racism he faced there and in England for his Moroccan ancestry.
The testimony of victim families “is going to be a highly emotional, devastating presentation to the jury,” said Mary Cheh, a law professor at George Washington University, who thought the eligibility phase could have gone the other way.
Dieter said the government’s unusual case left many questions for an appeal, where anything could happen.
