The Moussaoui Trial: It's High Time The Death Penalty Is Taken Off the Table

By EDWARD LAZARUS
Thursday, Mar. 16, 2006

This week, Leonie Brinkema, the judge presiding over the sentencing trial of Zacarias Moussaoui, declared, "I don't think in the annals of criminal law there has ever been a case with this many significant problems."

The occasion for Brinkema's despair was the revelation that government attorneys had engaged in a panoply of misconduct in trying to obtain the death penalty. Moussaoui is the only person so far convicted of a crime even tenuously connected to the 9/11 attacks; the government wants the death penalty badly in this case, and has gone to extremes to get it.

In this column, I'll argue that the government's conduct has so tainted this case, that, at a minimum, the death penalty option should be withdrawn.

It is hard to imagine a more noble endeavor than bringing a terrorist before the bar of justice and exacting punishment and revenge and, perhaps for a few people, deterrence.

There was a solemn and searing beauty to the trial, conviction, and sentencing of Timothy McVeigh for the Oklahoma City bombing, the worst act of home-grown terrorism this country has ever seen. It was not a process without flaws. But it was fundamentally fair; it channeled the nation's retributive impulse on the man most deserving of that ire; and it provided all of us, but especially the victim's families, a true measure of catharsis.

The Moussaoui trial is a farce by comparison, and has taken place with not just the nation but the whole world watching.

The Misconduct: Transforming Fact Witnesses Into Government Lackeys

Here are a few more details of the misconduct in which the government engaged: First and foremost, a government lawyer had improperly coached Transportation Safety Administration witnesses about how best to advance the government's case. This same lawyer also improperly instructed witnesses not to talk to the defense, while falsely telling the court that the witness were unwilling to do so. Government counsel also repeatedly violated a court order barring lawyers from telling witnesses about trial strategy or prior testimony in the case.

This misconduct is especially serious because it violates our core ideal as to what a witness should be: A person who provides, under oath, a recounting of relevant factual events. When factual accounts are mixed with government arguments, the line between witness testimony and lawyers' statements - openings and summations - can be fatally blurred. The chance of a conviction based not on facts, but on rhetoric, looms.

Judges specifically tell juries that lawyers' statements are not statements of fact, so that juries can rely on the fact that witness testimony, by contrast, is factual. When witnesses are prepped to advance one side's arguments, and withheld on false pretenses from contact with the other side, judges' admonitions, too, become unwitting lies.

What Moussaoui Did, and What He Didn't Do

Here is the most that can be said with any degree of confidence about Zacarias Moussaoui: He is an unstable, fervent, and dangerous adherent of Al Qaeda who appears to have been tapped to carry out a post-9/11 assault on the White House, but who was arrested on immigration charges before he could effectuate the plan.

What charges would these facts support? They would support charges of conspiracy to commit terrorist acts - but not the acts of 9/11; Moussaoui had heard about them, but did not even know their operational details. On 9/11, he was sitting in jail. He had not planned to be part of the 9/11 attacks; early references to him as a possible "twentieth hijacker" have turned out to be inaccurate. Nor did Moussaoui help plan the attacks.

Nevertheless, the government has somehow made the case against Moussaoui, a case about 9/11. It is easy to sympathize with the impulse to hold someone accountable to the full measure of the law for the 3000 lives mercilessly extinguished on 9/11. But Moussaoui has always been a troubling choice - one that serves mainly to underscore the failures plaguing our investigation and prosecution of terrorists.

The Shaky Case for The Death Penalty, and the Nonexistent 9/11 Link

From the beginning, the government's push to obtain the death penalty against Zacarias Moussaoui has been a strained and problematic enterprise - for it rests directly on the gaping flaw in the government's case: its attempt to link Moussaoui to 9/11.

Moussaoui was charged with and, after several false starts, pled guilty to conspiracy to commit acts of terrorism. But his admission to being a part of Al Qaeda's overall plot against the United States is not sufficient on its own to make Moussaoui eligible for the death penalty.

To open that door, the government must show that Moussaoui's conduct had a direct connection to the terrorist acts of 9/11, and actually helped cause those murderous acts. And the only way the government has figured out to try and make this showing is to argue that, if Moussaoui had only told the truth to government agents when he was arrested in August 2001, then the information he would have provided would have permitted the FBI to connect the dots to foil the 9/11 attacks.

The perversity of all this is uncomfortable to confront. It was bad enough that the government had to use as its showcase the prosecution of an apparently schizophrenic peripheral player because its other much-touted terrorism arrests have badly misfired. Now it has compounded its mistake with misconduct designed to bolster a shaky case. The government could have made a simple, accurate case that put Moussaoui away for life. Instead, it has made a misguided bid for death, based on inaccuracy and misconduct.

The latest turn of events - with the judge appalled at government misconduct -- only underscores the tragedy of an ill-advised choice based on an ill-advised theory that, under the intense pressure of the moment, almost inevitably was going to produce a cascade of governmental overreaching.

By breaking elementary rules regarding communication with witnesses while also violating a court order, the government has let slip the moral high ground in a case that, in a fundamental sense, is about the comparative morality of our way of life and of governance against those the terrorists seek to impose.

It is too soon to know what effect the government's misconduct will have on the outcome of Moussaoui's trial.

The judge is prohibiting testimony from six witnesses from the Transportation Safety Administration, who were to have testified about what measures the government could have taken to thwart the 9/11 attacks if only Moussaoui had been forthright when federal agents questioned him in August 2001. Again, the issue with respect to these witnesses is that they were improper coached not to recount the facts they knew, but rather to advance the government's case as best they could.

Still, the judge is not prohibiting the government from seeking the death penalty, even though it appears that several of the now-excluded witnesses were to testify for the defense.

All of which means that the trial is likely to be burdened with a government appeal now -- and a very substantial defense appeal down the road if the jury imposes the death penalty.

It's Time to Get Rid of the Death Penalty Option in This Irrevocably Tainted Trial

Reportedly, the Department of Justice is considering putting a stop to all this by foregoing the death penalty. It should. Let Moussaoui rot in jail.

This was never the right case through which to seek emotional release for the families victimized by the 9/11 terrorists. And now it has become a disastrous case, sure to be counterproductive when it comes to achieving any conceivable polity objectives it might once have imperfectly served.

There is nobility in having the courage to abandon a death penalty fight that the government probably should never undertaken, and now has tainted irremediably by striking a series of low blows. Such courage would far better reflect the American values we seek to project, than a stubborn insistence on obtaining a death sentence that has lost the moral weight that is its only justification.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.