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Terrorism Trial's Strategies Revealed Washington Post, Nov. 14, 2005, by Jerry Markon

As preparations intensify for the upcoming death penalty trial of Zacarias Moussaoui, newly unsealed court documents are laying out the arguments prosecutors and defense attorneys plan to make in what is likely to be the only judicial reckoning for the Sept. 11, 2001, terrorist attacks.
Prosecutors will tell an Alexandria federal court jury that Moussaoui
deserves to die because he lied to the FBI when he was arrested a month
before the terrorist assaults that killed nearly 3,000 people, the papers
indicate. If the French citizen had confessed his knowledge of the hijacking
plot, the government is expected to argue, the carnage of Sept.
11 could have been prevented.

To build their case that Moussaoui should die, prosecutors are planning to
use admissions he made in April, when he became the first person convicted
in a U.S. case stemming from the attacks on the World Trade Center and the
Pentagon. When he pleaded guilty, Moussaoui signed a statement of facts
admitting that he "lied to federal agents to allow his al Qaeda 'brothers'
to go forward with the operation to fly planes into American buildings."

Defense attorneys, while arguing that Moussaoui actually knew very little
about Sept. 11, are also preparing to put the government itself on trial.

Both the Bush and Clinton administrations were warned that Osama bin Laden
wanted to strike the United States, the attorneys are arguing, but did
little to prepare. In fact, they say, the government knew far more about bin
Laden's intentions than did Moussaoui -- and also knew enough about
Moussaoui to realize that he could pose a threat.

"We need to know, almost frozen in time, what was known by the government
before the planes hit the World Trade Center," Moussaoui attorney Edward B.
MacMahon Jr. said at a classified hearing whose contents were made public
last week. Defense attorneys said that before Sept. 11, former CIA director
George J. Tenet was briefed about Moussaoui after Moussaoui was arrested
because his behavior at a Minnesota flight school was suspicious.
The title of the briefing: "Islamic Extremist or Islamic Fundamentalist
Learns to Fly."

Moussaoui, 37, pleaded guilty to six counts of conspiring with al Qaeda and
said that bin Laden had personally instructed him to fly an airplane into
the White House. But he denied that he was planning to be a Sept. 11
hijacker and said his attack was to come later. A trial, starting Jan. 9
with jury selection, will now convene to determine if he should be executed
or spend the rest of his life in prison.

The trial itself, expected to last several months at a courthouse just miles
from the Pentagon, promises to be extraordinary. Scores of reporters will
descend on a building already under extremely tight security due to numerous
other high-profile cases. Jury selection alone, from a pool filled with
government workers, is expected to take almost a month, according to a
schedule set by U.S. District Judge Leonie M. Brinkema -- far longer than
most high-profile cases.

During the proceedings, relatives of Sept. 11 victims will have their day in
court for the first time since the attacks. An unknown number are expected
to testify as part of a massive and unprecedented outreach the government
mounted, both to secure relatives' cooperation in court and to help them
deal with their loss.

Prosecutors acknowledged in a recent filing that their so-called victim
impact evidence will be "emotionally charged." The trial will also be aired
on closed-circuit television to Sept. 11 family members at highly secure,
remote locations outside Alexandria.

At the defense table, the trial could feature wild unpredictability.
Moussaoui, an admitted al Qaeda member, is known for rambling speeches and
heated courtroom outbursts. When he pleaded guilty, he called one of his
attorneys a "Judas" and screamed: "Lord! God curse America!"

Sources familiar with the case said that Moussaoui has not talked to his
attorneys in months. It is unclear how this will affect the defense case or
how Brinkema will react to any outbursts. Brinkema initially granted
Moussaoui the right to represent himself but revoked it after he scrawled
blistering handwritten motions from jail in which he taunted the government
and compared the judge to a Nazi SS officer.

Moussaoui has indicated that he wants to testify, sources said, which is his
right under the U.S. Constitution. At his plea hearing, he said he would
"fight every inch against the death penalty."

Prosecutors and defense attorneys would not comment beyond the court
filings.

Moussaoui has been in the Alexandria jail for nearly 4 years. He was
arrested more than three weeks before Sept. 11 and was charged in December
2001 with conspiring with al Qaeda in the Sept. 11 attacks.

A constitutional showdown over access to top al Qaeda detainees delayed the
case for more than two years. Moussaoui wanted to interview the captives,
saying they could clear him. Brinkema agreed, but the government vehemently
resisted on national security grounds.

Eventually, a federal appeals court ruled that Moussaoui could not interview
the detainees but could present to the jury portions of statements they made
to interrogators.

The 2 sides are still fighting over the issue. In May, defense attorneys
sought access to other detainees, recently unsealed court filings show.
Brinkema has yet to rule on the request. And the government urged Brinkema
to reconsider her earlier rulings, saying the al Qaeda witnesses are not
relevant to the sentencing trial.

Brinkema declined to do so in an order unsealed Thursday, writing that the
witnesses' statements "remain extremely material to this case." It is
unclear how the statements will be presented at the trial, but what is clear
is that much will turn on whether jurors conclude that Moussaoui lied to
federal agents after his arrest. The newly unsealed documents indicate that
is the heart of the government's case.

According to a transcript of the Oct. 12 hearing unsealed last week in U.S.
District Court in Alexandria, Brinkema said to prosecutors: "I think your
theory of the case now is that his failure to tell the agents what he knew
about Sept. 11 resulted in death."

"You are correct, your honor," responded Assistant U.S. Attorney Robert A.
Spencer. Later in the hearing, Spencer referred to Moussaoui's admissions in
the statement of facts and said: "We know he knew that much and lied, and
instead of giving those answers, he gave false answers."

The hearing transcript was released with redactions; much of the material in
the case is classified. Attorneys can view classified material only in two
locked rooms -- a defense room in the basement of the federal courthouse in
Alexandria and a government room within the U.S. attorney's office, located
in the same building, sources said.

At the Oct. 12 hearing, defense attorneys outlined their argument that
Moussaoui knew very little about Sept. 11 and that his confession wouldn't
have stopped the attacks anyway because the government had repeatedly failed
to act on warnings about al Qaeda's plans.

"We're trying to pinpoint what information the government had before 9/11 .
. . to compare it with what Mr. Moussaoui may or may not have known or what
they did even with the information that they had," MacMahon said.

Another recently unsealed defense filing says that President Bill Clinton
was warned in 1998 "that bin Laden was preparing to hijack United States
aircraft." The same filing cites a controversial August 2001 briefing given
to President Bush titled "Bin Laden determined to strike in U.S."

The White House declassified that briefing last year after a request from
the commission investigating the Sept. 11 attacks. It warned Bush that the
FBI had information that terrorists might be preparing for a hijacking in
the United States and might be targeting a building in Lower Manhattan.

"Substantial evidence will be presented at trial," Moussaoui's attorneys
wrote in their filing, "that the United States government knew more about al
Qaeda's plans to attack the United States than did Mr. Moussaoui."Return to Sept. 11 Forum page.

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SUPREME COURT Agrees to Hear Cases with Death Penalty Implications

On November 7, the U.S. Supreme Court agreed to hear cases in two areas that could have broad implications for many defendants facing the death penalty.  In Hamdan v. Rumsfeld, No. 05-184, the Court will rule on the constitutionality of the military tribunals established by President Bush following the September 11, 2001 terrorist attacks.  A U.S. District Court had halted the military trial of Salim Ahmed Hamdan, who had been captured in Afghanistan, because the trial violated domestic law and U.S. international treaty obligations.  This decision was overturned by the U.S. Court of Appeals for the District of Columbia Circuit.  Hamdan is charged with conspiracy, murder and terrorism.  Under the current military tribunals, the government may seek the death penalty for certain offenses.  Chief Justice John Roberts has recused himself from the case because he was part of the panel of judges in the prior decision. (N.Y. Times, Nov. 8, 2005).


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Relatively Few Federal Death Sentences, But Proposed Legislation Would Make It Easier

The Federal Death Penalty Resource Counsel Project reported that only 5 of the 22 juries that heard federal capital cases imposed death sentences in the past  year.  During John Ashcroft's term as Attorney General from 2001 to 2005, 18 of the 63 juries in capital cases returned death sentences.  Some members of Congress have proposed easing the rules for obtaining death sentences in federal cases, allowing the government to seek the death penalty repeatedly if the jury is not unanimous for either a life or death sentence.  Under current law, a non-unanimous sentencing jury results in a sentence less than death. 


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Patriot Act Reauthorization Could Impact Federal Death Penalty

Several provisions contained within the U.S. House of Representatives version of legislation to reauthorize the USA Patriot Act anti-terrorism law aim to dramatically transform the federal death penalty system by allowing smaller juries to decide on executions and giving prosecutors the ability to try again if the jury deadlocks on sentencing. The legislative changes, sponsored by Texas Congressman John Carter, would also triple the number of terrorism-related crimes eligible for the death penalty.

Carter's amendment, called the Terrorist Death Penalty Enhancement Act,  would add 41 crimes to the 20 terrorism-related offenses currently eligible for capital punishment. It would also make it easier for prosecutors to seek a capital conviction in cases where the defendant did not have the intent to kill. In addition, the provisions would allow a trial with fewer than 12 jurors if the court finds "good cause," with or without the agreement of the defense team. Lastly, it would give prosecutors the chance to retry cases if a jury is deadlocked over a death sentence. Currently in federal death penalty cases, a hung jury at sentencing automatically results in a life sentence, a system that is used in all but 5 of the 38 U.S. states that have capital punishment.


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RACE AND JURY SELECTION: Federal Judge Attempts to Seat a More Diverse Jury in Death Penalty Case

A federal judge in Boston presiding over the death penalty case of two black defendants has ordered a change in the process of summoning jurors in order to ensure a more diverse jury.  U.S. District Judge Nancy Gertner wrote a 95-page opinion and noted that it would be "profoundly troubling" if the defendants, Darryl Green and Branden Morris, were to face an all-white jury in a trial for their lives.  Gertner cited studies that showed that wealthier geographic areas keep more accurate jury rolls and hence have a higher response rate from summoning juries.  Poorer areas, where more minorities live, require a follow-up process when summonses are returned unanswered in order to reach the intended person.

The prosecution has challenged the judge's order and the District Court's Chief Judge has appointed a committee of 5 judges, including Gertner, to review the "profound issues" raised.  The Chief Judge has submitted his own brief to the U.S. Court of Appeals that is considering the prosecution's challenge. 


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NEW VOICES: Victim's Family Opposes Federal Death Sentence

The parents and three children of Louisiana murder victim Kim Groves have asked the federal government to forgo seeking the death penalty for co-defendants Paul Hardy and Len Davis.  In a letter to prosecutors, the Groves family urged U.S attorneys to halt proceedings that  might lead to death sentences in rehearings for both defendants.

"Executing these two men will not bring Kim Groves back to life. It will not ease the deep sorrow and loss that her family has and will continue to experience as a result of her death...Perversely, it appears that he (Davis) has enjoyed the attention and notoriety which his vulnerability to the death penalty has provided. The family believes the death penalty would in fact be the lesser of the punishments and that the finality and duration of a life sentence would be much more difficult and severe to Mr. Davis, in particular, than death," the letter stated.

The letter, which was also addressed to U.S. Attorney General Alberto Gonzales, was entered into the court record last week.   The presiding judge ruled that if prosecutors have family members testifying about the facts of the crime, the letter may be used on Davis' behalf. 


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Federal Death Penalty in Non-Death Penalty States

The federal death penalty was reinstated in 1988 with a limited statute for murders in the course of a drug conspiracy. It was expanded to 60 offenses in 1994 and included crimes such as carjacking and drive-by shootings if a death results. During the Clinton administration, no one from a non-death penalty state was sentenced to death. Since 2000, there have been at least 5 individuals in non-death states who have received death sentences: 2 in Iowa (Dustin Honken and Angela Johnson), 1 in Massachusetts (Gary Sampson), 1 in Michigan (Marvin Gabrion), and most recently, 1 in Vermont (Donald Fell). A total of 40 people are now under a federal death sentence (in some cases, a judge has not formally imposed the sentence).


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Puerto Ricans Again Reject Federal Death Sentence

Two Puerto Rican defendants were given life sentences by the same jury that had convicted them of murder in the course of an armored truck robbery that occurred in 2002.  Puerto Rico has not used the death penalty for almost 80 years and forbids the practice in its constitution.  However, the U.S. federal death penalty applies to the Commonwealth.

Gov. Anibal Acevedo Vila said that the jury acted in accordance with Puerto Rican tradition, which "loathes and is against the death penalty." Federal prosecutors said the federal death penalty should apply because the defendants, Hernando Medina Villegas and Lorenzo Catalan Roman, interefered with interstate commerce.  Puerto Rico has not had an execution since 1927. 


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Eric Rudolph Pleads Guilty to Terrorist Bombings in Exchange for Life Without Parole Sentences

In separate plea agreements with the federal government and Georgia prosecutors, Eric Rudolph admitted killing two people and injuring 150 others by carrying out a series bombings at a gay nightclub, abortion clinics, and the 1996 Olympics, and will serve four consecutive life sentences without the possibility of parole. Prosecutors spared Rudolph from execution in exchange for his guilty pleas and his revealing the location of about 250 pounds of dynamite he had hidden in the North Carolina mountains. Prior to his capture in 2003, Rudolph spent over five years hiding from authorities in the Appalachian mountains of North Carolina.

"The many victims of Eric Rudolph's terrorist attacks in Atlanta and Birmingham can rest assured that Rudolph will spend the rest of his life behind bars. The best interests of justice are served by resolution of this case and by the skillful operation that secured the dangerous explosives buried in North Carolina," said U.S. Attorney General Alberto R. Gonzales. U.S. Attorney David E. Nahmias later added, "There will be no further delays in obtaining justice for the public and the many victims of his terrorist activity."

(Washington Post, April 6, 2005 and New York Times, April 12, 2005). 

See Life Without Parole; also Federal Death Penalty.


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Opposition to the Death Penalty Mounts in Puerto Rico

As two men convicted of capital murder under the federal death penalty statute await their sentencing on April 11, Puerto Rican Governor Anibal Acevedo and the Association of American Jurists, a non-governmental organization acting as a consultant at the United Nations, protested the use of the death penalty in Puerto Rico. Though Puerto Rico's Constitution prohibits the death penalty and its residents have consistently voiced strong opposition to it, residents who commit a federal capital crime can be sentenced to die.  Opposition to this practice is pervasive, crossing political and religious lines. 


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