Terror Case 'Delicate,' Judge Warns Prosecutors

Just after the first week of testimony wrapped up in the death penalty trial of Zacarias Moussaoui, the judge issued a stern warning to prosecutors: You are "treading on very delicate legal ground."

The government is trying to persuade a jury to order Moussaoui's execution because, prosecutors say, the al-Qaeda member could have prevented the terror attacks of Sept. 11, 2001, if he had not lied to the FBI so the plot could go forward. Late Thursday, U.S. District Judge Leonie M. Brinkema said she did not "know of any case where a failure to act has ever been sufficient activity to result in the death penalty as a matter of law."

The comment, made after jurors in Alexandria had departed for the day, left courtroom observers wondering whether Brinkema was casting doubt on the government's central argument for executing Moussaoui, the only person convicted in the United States on charges stemming from Sept. 11. The judge previously threw out the death penalty in the case but was overruled by a higher court.

But legal experts said they believe Brinkema was only clarifying an important legal point: It's not Moussaoui's silence that could get him the death penalty, but his lies. Brinkema's remark came as she denied a defense motion for a mistrial.

Defense lawyers objected when prosecutors asked an FBI agent whether Moussaoui ever called them from a Minnesota jail and offered to help as they scrambled to obtain a warrant to search his belongings. Moussaoui had been arrested in Minnesota on Aug. 16, 2001.

"At any time from the time he spoke to you on August 17th until September 11th, did he ever call you up or make any outreach to you to say, 'Hey, I lied, let me fix this'?" Assistant U.S. Attorney David J. Novak asked the agent, according to a transcript.

Although Moussaoui spoke extensively to agents after his arrest, he soon stopped speaking to them and requested a lawyer. So the prosecutor's question was a "flagrant" violation of Moussaoui's constitutional rights against incriminating himself, argued defense lawyer Gerald Zerkin.

Brinkema told the jury to disregard Novak's question, calling it improper. Later, she declined to grant the mistrial but issued her warning about the government's being on delicate legal ground.

Experts said the judge was probably cautioning prosecutors to stick to their primary argument -- how Moussaoui misled the agents about the terror plot when they interviewed him -- and to stay away from the period after he stopped talking. There is no precedent, they said, for sentencing someone to death merely for staying silent.

"Lying to the FBI is a crime, and if you can show that but for his lie, 9/11 would not have happened, I think the government could win," said Stephen A. Saltzburg, a George Washington University law professor. "I'm not sure how they show it by arguing it was his silence, the failure to give information. . . . The judge is just putting the government on notice that they can't be sloppy."

Some experts said Brinkema's comment, though not repudiating the government's case, does signal that it is a challenging one to make. Moussaoui was sitting in jail when the hijacked planes crashed into the World Trade Center, the Pentagon and a Pennsylvania field, killing nearly 3,000 people. Federal law says people can be executed only for killing someone or participating in a violent act that directly caused a death.

"I think it reinforces what seems obvious: that the government's case is difficult," said Barry Boss, a Washington defense lawyer experienced in capital cases. He added: "Anytime you try to read too much into an isolated comment by a judge, that can be dangerous."

Prosecutors are relying in part on the defendant's words to make their case. Moussaoui, 37, pleaded guilty in April to conspiring with al-Qaeda in the Sept. 11 plot, but he has said that Osama bin Laden had instructed him to fly an airplane into the White House during another wave of attacks.

When he pleaded guilty, Moussaoui acknowledged that he lied to the FBI when he was arrested "to allow his al-Qaeda brothers to go forward." Prosecutors are trying to show that if Moussaoui had told the truth about his knowledge of the plot, it could have been stopped.

Defense lawyers argued during the trial's first week that Moussaoui had no specific information about Sept. 11. Even if he had confessed all he knew, they say, the government would not have prevented Sept. 11 because agents failed to act on numerous other signs that al-Qaeda was planning an attack.

The death penalty hearing began Monday after several years of delays, triggered in part by Brinkema's 2003 ruling that threw out the death penalty and all Sept. 11-related evidence. She took the action after the government disobeyed her order to allow Moussaoui's lawyers to interview captured al-Qaeda leaders who they said could clear him.

The U.S. Court of Appeals for the 4th Circuit restored the death penalty and the Sept. 11 evidence and said statements made by the captives could be presented to the jury.