Prosecutors clear biggest hurdle in Moussaoui case

ALEXANDRIA, Va. — Thanks largely to Zacarias Moussaoui himself, prosecutors have cleared the highest hurdle in their effort to execute the al-Qaida conspirator. But the path to the death chamber might still contain some unpleasant surprises for the government.

When the case began more than four years ago, it looked easier. The government at first thought Moussaoui was 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.

But it didn't want to drop the death penalty for the only person charged in this country in the nation's deadliest terrorist attack. The biggest problem was that Moussaoui was in jail on Sept. 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 Sept. 11 because he hadn't confessed all he knew when arrested, thus preventing the FBI 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.

Moussaoui connected

all the dots

Then Moussaoui took the stand over the objections of his court-appointed defense lawyers. He abandoned claims he had made for three years that his plot to fly a 747 into the White House was unrelated to Sept. 11. For the first time, he said he had been training to hijack a fifth jetliner on Sept. 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 penalty.

"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 should be executed for his actions. Prosecutors will introduce evidence of how heinous the crime was, while the defense will try to show mitigating factors.

Prosecutors can pick among the personal tragedies of the families of nearly 3,000 people who died in the Sept. 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.

Victims' families testimony

The testimony of victims' 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. "I can't imagine his being able to overcome that."

Now defense attorneys "are going uphill all the way," Cheh added. "I have no idea what they will come forward with."

Northwestern University Law Professor Ronald Allen agreed that Moussaoui's team has "a very uphill fight," but he cautions that the first phase is a formal decision while "the second decision is whether to kill somebody. That becomes intensely personal. It's moral and complicated and messy."

Dieter agreed: "It only gets more complicated when a person's life is in the balance."

Another George Washington University law professor, Stephen Saltzburg, also thought that prosecutors had gotten past the hard part and that their phase-two presentation would be pretty straightforward. "You're going to see some powerful testimony from the families," Saltzburg said. "It's going to be a chance for some of them to get closure as best they can."

And Moussaoui could harm his own case again, Saltzburg said. He doubted the 37-year-old Frenchman would cooperate in any effort by his lawyers to portray him as mentally ill, but "he's liable to want to testify again, and do himself even greater harm. I would not be surprised if he doesn't invite them to give him the death penalty."

That would bring on the last step: appeals.

Dieter said the government's unusual case left many questions for an appeal, where anything could happen.

For prosecutors, "the more difficult time is going to be on appeal," said Jesse Chopper, law professor at the University of California, Berkeley. " ... Compared to that, the penalty phase will be a piece of cake."