No death sentence for Moussaoui
The Supreme Court on March 21 last year declined to hear the pre-trial appeal of Zacarias Moussaoui, the Frenchman of Morroccan descent who was the only person charged in a U.S. court with a role in the terrorist attacks of September 11, 2001. (Moussaoui v. U.S., docket 04-8385). The following April 22, Moussaoui pleaded guilty to six terrorism conspiracy charges. That left only the question of whether he would be given a death sentence. The death penalty proceeding began in U.S. District Court in Alexandria, Va., on February 6.
The federal trial jury hearing the death penalty proceeding against Zacarias Moussaoui declined on Wednesday to impose a death sentence. Here is the verdict form as filled out by the jury. It is 42 pages in length. It appears on the U.S. District Court for Eastern District of Virginia’s website on the docket for the Moussaoui case, as entry 1852.
The verdict must be counted as a major defeat for the Justice Department in the highest profile case to grow out of the war on terrorism.
On pages 13, 27 and 41 of the vedict form, the following statement is repeated verbatim on each of those pages to indicate the sentencing reocmmendation on each of the three conspiracy counts carrying a possible death sentence (each of those pages is signed by the jury’s foreperson [Juror 0533]; the name is blacked out because this jury is anonymous):
“SENTENCE OF LIFE IMPRISONMENT WITHOUT POSSIBILITY OF RELEASE.
“Based upon consideration of whether the aggravating factor or factors found to exist sufficiently outweigh any mitigating factor or factors found to exist, or in the absence of any mitigating factors, whether the aggravating factor or factors are themselves sufficient to justify a sentence of death, we the jury, do not unanimously find that a sentence of death shall be imposed on the defendant.”
On pages 12, 26 and 40, the places to indicate a unanimous verdict to impose the death sentence on any of the three counts, no signatures appear.
In recording jury votes on specific issues submitted to them, on the entries for mitigating factors as suggested by defense lawyers, no jurors voted to find that the defense had proved the following statement: “That Zacarias Moussaoui believes that his execution will be part of his JIhad and will provide him with the rewards attendant to a martyr’s death.”
A death sentence failed, a court official indicated after the verdict was announced, because the jury could not reach unanimity in favor of it. The official, however, did not say how the jurors had voted individually on the ultimate question, so it was unknown how far short of unanimity it was. (Howard Bashman’s How Appealing blog contains a link to the video report on the official statement by the court’s spokesman.)
As a result of the Justice Department’s failure to obtain a death sentence, Moussaoui will be sentenced to life in prison without possibility of parole. U.S. District Judge Leonie M. Brinkema has no other option. The District Court announced that the judge will impose sentence at 10 a.m. Thursday.
President Bush issued a statement Wednesday evening, saying the Moussaoui case was over but that the fight against terrorism would go on. The statement can be found here..
The jury had the option, if it could agree unanimously, of recommending a death sentence on Count 1, a conspiracy to commit acts of terrorism “transcending national boundaries,” Count 3, conspiracy to destroy aircraft, or count 4, conspiracy to use “weapons of mass destruction.”
For each, the form listed three statutory aggravating factors. On each, the jury had to be unanimous to find that factor to have been proved beyond a reasonable doubt. It was unanimous in finding that Moussaoui had “knowingly created a grave risk of death to one or more persons in addition to the victims of the offense,” and that he had “committed the offense after substantial planning and premeditation to cause the death of a person or to commit an act of terrorism.” But it answered “No” on each on whether it unanimously found that Moussaoui had “committed the offense in an especially heinous, cruel, or depraved manner in tht it involved torture or serious physical abuse to the victim or victims.”
Among the non-statutory aggravating factors, the jury indicated it did not find unanimously beyond a reasonable doubt that Moussaoui’s actions “resulted in the deaths of approximately 3,000 people.”
On the mitigating factors pages of the verdict form, the jurors indicated how many of them had voted to find that the defense had established a factor by a “preponderance of the evidence.” It was on this part of the form, for each of the three counts, that no jurors found sufficient proof of a suggestion that Moussaoui believed his execution would make him a martyr.
As many as nine jurors (on Count 1) found that the defense had proved that Moussaoui an an “unstable early childhood and dysfunctional family,” and that his father “had a violent temper and physically and emotionally abused his family.” There were fewer juror votes on this point on each of the other two counts.No jurors found that the defense had proved that Moussaoui “suffers from a psychotic disorder, most likely schizophrenia, paranois subtype.”
Thus, the two most prominent features of the defense strategy — Moussaoui was seeking martyrdom, and he was in some way psychotic — drew no support from any juror. That result would appear to support a conclusion that the jury simply could not find a way, through all of its choices during seven days of deliberations, to reach unanimity to recommend a death sentence.
Three of the 12 jurors favored the defense on another significant argument: in sections in which the jury could write in any other mitigating factors found by at least one juror to have been proved by the defense on each count, three jurors each time endorsed this comment: “That Zacarias Moussaoui had limited knowledge of the 9/11 attack plans.” That was the only write-in finding in that section. Those three jurors thus were unpersuaded by Moussaoui’s attempts, when he took the stand, to make his role in 9/11 seem to be a major one. The other nine, though, may have been somewhat persuaded, or at least unwilling to vote against his claims.
The verdict in this case is a failure for the government in more ways than one. On the most obvious level, prosecutors didn’t get the death penalty they’d sought. Since Moussaoui had already pleaded guilty anyway, the entire trial was an exercise in futility.
Besides the wasted time and expense of trial, there is also the anguish of the 9/11 victims’ family members, who had to relive their grief as they testified against the defendant, only to find that it was unavailing.
Along the way, the government had to endure the embarrassing incompetence of staff attorney Carla Martin, whose tampering almost brought the trial to an early end.
And Moussaoui was a winner in more ways than one. Not only was his life spared, but the government’s pursuit of the death penalty gave him a platform from which he could spew his unique brand of hate, and have it broadcast worldwide as “news from the trial.”
I agree with Lyle: it is a major defeat for the government.
Comment by Marc Shepherd — May 3, 2006 @ 6:13 pm
Marc,
I don’t disagree that this may represent a failure on the government’s part. None-the-less, I can’t help but think it is wrongheaded to think that Moussaoui has gotten off easily. Instead of getting a quick way out by a nice cosy lethal injection, doesn’t it seem reasonably likely that Moussaoui will now face the rough justice that I can fairly easily imagine will be meted out out to him by the prison population daily for the rest of his life, while guards turn an appreciatively blind eye to the prisoners’ activities? Prisoners do not live in a cave, and I’m sure they will be very much aware of who he is and what he did.
Comment by Simon — May 3, 2006 @ 9:13 pm
Simon,
It seems unlikely that Moussaoui will be incarecerated in any facility where he will have access to other prisoners or vice-versa. In all likelihood it’ll be one of those 23-hours per day in your cell with 1-hour of solo recreation places. As I’m one who disagrees with the “We’re at war” argument, I’m glad to see our justice is able to handle (dispose of) vermin as designed.
Comment by yankee_mark — May 3, 2006 @ 9:40 pm
This is really, really bad. Trying to turn this into a victory by saying this isn’t what Moussaoui wanted is missing the point. For one, Moussaoui was obviously pleased with this verdict. For another, our system of justice should not depend on the desires of murderers, so even if he did want death (the martyr theory), that’s not a reason to NOT give it to him. There is virtually no chance of “prison justice”, as he will be in a nice, protected cell. The creep likes solitude, so this sort of confinement will not be a punishment for him like it would be for most of us. He will have access to the Koran, good meals, possibly newspapers/books depending on the policy of the Supermax he’ll be in, and he’s got such a good legal team that he’ll never face harassment from the guards. I rarely question the wisdom of juries, but as they were obviously swayed by touchy-feely garbage here, I think this was an incredibly stupid and gullible jury.
Comment by CDebateAdmin — May 4, 2006 @ 6:20 am
Actually, this case is a failure of the legal system, it is an attempted judicial suicide. With a really weak prosecution theory, some moderately helpful defense evidence, and a strong confrontation clause issue to be resolved, and a judge who seemed of a mind to overturn a jury verdict if the tie between Moussaoui’s interrogation and the deaths at Twin Towers wasn’t proved, Moussaoui was able to abort a guilt-or-innocence trial and appeal by pleading guilty. Then, at the death eligibility trial, he was able by his own statements to make a case for the government that it couldn’t make for itself. All this was done by a person who was marginally competent at the start of the proceedings and has spent 4 years in solitary in the Alexandria jail. When a system based on adversaries is short-circuited by someone who wants to die, the resolution is never a victory.
Comment by r.friedman — May 4, 2006 @ 7:42 am
I can’t say if this is a victory for anyone, save the defense team, who dealt with a hostile client and a bumbling prosecution that nearly derailed the entire affair.
Justice is not about what Moussaoui wants, it’s about what society demands. Should we demand he be put to death for his role in Sept 11? I doubt that can ever be answered beyond a reasonable doubt: the government’s case was not compelling, and the defendant’s own sworn admissions are contradictory. In light of that, death is not an acceptable result.
Statements here alluding to “prison justice” are appalling. It is the height of cynnicism to suggest that a prison population can correct what the legal system cannot achieve. That is not the function of prisons, and that is not why people are sent there. Consigning them to this role is an enormous social cop-out. The membership of this board should be well above this base rhetoric.
Comment by 14th Amendment — May 4, 2006 @ 9:12 am
Justice was done,and we should be glad that a federally assisted suicide and world wide riots will not occur.
Comment by Rumpole — May 4, 2006 @ 12:46 pm
Actually, we don’t know what “the jury” decided. The verdict form merely tells us that the jury was not unanimous in favor of death. Under the seriously screwed up federal death penalty law, if a jury is divided 11 for death and 1 for life in prison, the judgment of the 1 trumps the judgment of the 11.
I don’t know how I would have voted if I had been on the jury myself. Here we have a very peripheral player in an exceptionally horrific crime, and those two factors are difficult to balance. But the law should require the jury to come to an actual, unanimous decision one way or the other, as it does in California.
Congress needs to fix this.
Comment by Kent Scheidegger — May 4, 2006 @ 1:11 pm
Let’s just hope that, now that jury has spoken, (a) Moussaoui does not kill or maim a prison guard and (b) no Americans get kidnapped with one of the demands for release being the release of Moussaoui.
I also fear that terrorists who want to kill us take away from this verdict that we lack the moral courage to hunt them down and kill them.
Time will tell.
Comment by federalist — May 4, 2006 @ 1:20 pm
To Kent Scheidegger: Had the rule you suggest been in place, all it means is that we probably would have had a hung jury, and this farce would have played out all over again. I would hardly look to California for a model penal code. By the way, no media source has suggested that it was 11-1 for death.
Comment by Marc Shepherd — May 4, 2006 @ 1:47 pm
Marc writes:
“By the way, no media source has suggested that it was 11-1 for death.”
Note the indefinite article, “if a jury….” Was it not crystal clear that my statement about 11-1 was general and not a claim that this was the vote in this particular case?
“I would hardly look to California for a model penal code.”
The state of the California Penal Code as a whole is irrelevant. The point is that this particular provision is superior to the practice in federal courts and should be adopted.
The practice of requiring juries to deliberate until they are unanimous one way or the other works well in California. Although the juries do sometimes hang and retrials are sometimes necessary, that is preferable to allowing a single juror to veto the death penalty, a practice which needlessly introduces an element of arbitrariness into the system.
At this point, we do not have enough information to assess the probability that a true unanimity rule would have resulted in a retrial in this case. More information about the vote and the deliberations will be forthcoming, I expect.
Comment by Kent Scheidegger — May 4, 2006 @ 4:58 pm