Moussaoui aiming for new Court review

By Lyle Denniston
on May 3, 2005 at 6:59 pm

This post is part of continuing coverage of the Moussaoui case following the Supreme Court’s March 21 denial of review at an earlier stage.

The federal judge overseeing the terrorism case against Zacarias Moussaoui on Tuesday turned down his request for an order that he hoped would set the stage for a new appeal to the Supreme Court. The judge’s action, however, does not prevent Moussaoui from pursuing an appeal to the Court later if he is sentenced to death. The issue is somewhat clouded, however, because of the legal imprecision of the hand-written plea by Moussaoui that the judge denied.

This latest episode in the often perplexing case began sometime on Friday, April 22, apparently after he had pleaded guilty to six counts of conspiracy in the terrorist attacks on September 11, 2001. During that plea hearing, he told U.S. District Judge Leonie M. Brinkema that he would be filing a motion claiming that his court-appointed lawyers had been ineffective because of misleading advice they gave him about the consequences of pleading guilty. This did not appear to be an attempt to undermine the guilty plea, but to preserve an argument that might help him avoid – or overturn — a death sentence.

That motion, made public Tuesday just as Judge Brinkema denied it, argued that his lawyers were resisting his demand that they go to the Supreme Court to make use of what he called a “legal loophole” about his guilty plea that might keep him from being found “death-eligible.” The reasoning was complex and somewhat clumsy, but did appear to make some legal sense. Moreover, his English language skills are flawed; he is a French citizen of Moroccan descent. The judge denied the motion in a brief order, finding “no basis for defendant’s claim of ineffective assistance” of counsel. That ended the matter, but only for now. It seems certain to arise again when the case moves to a penalty phase in coming weeks.

Following are the details of this new development, and its potential implications.

Moussaoui’s court-appointed lawyers had opposed his decision to plead guilty to the terrorism charges. As part of their discussions with him, they apparently told him of the Supreme Court’s 1974 decision in Blackledge v. Perry. He later told the judge that they had used that ruling to make the point that, if he pleaded guilty, he could not later make a claim that his constitutional rights were violated by anything that happened in the case prior to his entering the plea.

A part of the defense strategy, it seems, was that his attorneys wanted to go to trial so they could try to show that he had only a minor role in the September 11 conspiracy, and thus could not be held responsible for the deaths that occurred that day, even if found guilty on the conspiracy counts. Their evidence that his role was minor apparently would be statements to that effect that captured Al Qaeda operatives had given to U.S. interrogators. Although the Al Qaeda figures could not be brought in as witnesses, under prior court decisions in his case, government summaries of their statements could be prepared and presented.

Moussaoui, however, appears to believe that his best chance of avoiding a death sentence is to show that he had no role – not even a minor one – in the conspiracy to stage the September 11 attacks. So, in the first paragraph of his ineffective counsel motion, he asked the judge to prevent his lawyers “to make any representation that Moussaoui have any participation in the specific conspiracy of 9/ll including a so call minor participation.” If, at sentencing, the point was made that he was a participant in the conspiracy, that would virtually guarantee a death sentence, he appears to believe, based on the theory that everyone involved in a conspiracy is equally guilty, He also asked the judge to order his lawyers to argue that he was part of a conspiracy to use airplanes “as weapons of mass destruction in a different operation than 9/11.” His role, he said, would have been to fly a 747 into the White House if the U.S. did not negotiate the release of the blind sheik, Omar Abdel Rahman, convicted of an earlier terrorist bombing of the World Trade Center.

His next point drew on his reading of the Blackledge case that his lawyers had shared with him. Instead of reading it as a problem with a guilty plea, Moussaoui told the judge he thought it created a “legal loophole.” In his view, the decision meant that, if something unconstitutional occurred after he entered his guilty plea, he would be free to take that issue on to the Supreme Court, as part of an attempt to overturn a death sentence, if one is imposed.

His rights, he contended, will be violated after he entered a guilty plea if the summaries of the Al Qaeda figures’ statements are used in his case, even in the sentencing phase. The summaries have not even been written yet, he said, so the unfairness of using them is yet to occur. They would be illegal, he had told the judge at his plea hearing, because they would be composed in a joint effort by his lawyers and prosecutors, and he would have no role. “I vehemently oppose” any such submission, he said. Thus, his motion asked the judge to order his lawyers “to make a challenge to the Supreme Court using the legal loophool contain in the rule of the Supreme Court express in the Blackledge vs. Perry case.” He had said at his plea hearing that “I want to preserve the issue…for my appeal,” to “preserve my chance in front of the Supreme Court,” thus indicating that he wanted a Supreme Court appeal on the issue to be readied later, after sentencing.

Moussaoui also apparently does not believe that recitals of what the Al Qaeda figures said would be of much good to him at a sentencing hearing. At his plea hearing April 22, he told the judge that “you can really imagine when the government will bring the victim impact story [about 9/11] and many thing to the jury, what is going to weight, a CIA piece of paper of substitution staying that Mr. Khalid Sheikh Mohammed [an Al Qaeda operative] say this? What is going to weight in front of a jury? Nothing.”

His motion closed with a plea to the judge to “acknowledge” that he is opposed to a death sentence saying, in summary, that he wanted the court “to recognize that Moussaoui will fight inch by inch the death penalty, according to his Islamic belief.”

While failing with this motion, Moussaoui clearly has put the judge, prosecutors and his lawyers on notice of the tactic he will try to insist upon at sentencing. Moreover, Judge Brinkema has told him that he could bring his argument about not being a part of the 9/11 conspiracy into the sentencing hearing as a mitigating factor against a death sentence.