By Jerry Markon and Timothy Dwyer
Washington Post Staff Writers
Friday, March 24, 2006
Prosecutors concluded their argument yesterday that Zacarias Moussaoui is eligible for the death penalty, and the al-Qaeda operative made it clear in his typically theatrical style that he intends to take the stand.
"I will testify, whether you want it or not!" Moussaoui yelled as he was escorted from the courtroom by federal marshals. "I will testify!"
It was unclear whether he was addressing his attorneys, with whom he does not speak and who have been against his taking the stand. But what was clear was that the case against the only person convicted in the United States on charges stemming from the Sept. 11, 2001, attacks could take yet another dramatic turn. Moussaoui is known for his courtroom outbursts, and even his attorneys don't know what he will say. Sources familiar with the case said Moussaoui is expected to testify, but he has been told he must adhere to courtroom decorum.
The courtroom theatrics came as Moussaoui's lawyers subpoenaed a government lawyer whose misconduct nearly derailed the death penalty trial, sources familiar with the case said yesterday. Carla J. Martin has been told to show up at U.S. District Court in Alexandria on Monday, the sources said.
Martin would risk being found in contempt of court if she ignored the order, but once there she could invoke her Fifth Amendment right against self-incrimination and refuse to testify. She declined to testify at a hearing last week. Her attorney, Roscoe C. Howard Jr., did not return repeated telephone calls. Defense attorneys would not comment, but legal experts said that it is unlikely they could persuade U.S. District Judge Leonie M. Brinkema to allow the jury to hear about what she has called "egregious" conduct by Martin.
The actions of Martin, a Transportation Security Administration lawyer, halted the case last week after she violated a court order by sharing testimony and contacting witnesses. Brinkema initially reacted by barring all aviation witnesses and testimony, an action that severely damaged the prosecution's case. Testimony resumed Monday after Brinkema allowed testimony from aviation witnesses untainted by contact with Martin.
Moussaoui, 37, pleaded guilty last year to conspiring with al-Qaeda in the attacks on the World Trade Center and Pentagon. His sentencing hearing is divided into two parts. Jurors first must vote on whether Moussaoui is eligible for the death penalty. If they find he is, a second phase would include testimony from family members of Sept. 11 victims. Jurors then would determine whether Moussaoui should be executed.
Prosecutors yesterday concluded their argument that Moussaoui is eligible for the death penalty because, even though he was in jail on Sept. 11, his lies to the FBI prevented agents from stopping the attacks.
The trial has been cloaked in secrecy at times because of extensive classified information, and yesterday was no different. Defense lawyers typically ask the judge to throw out a case when the prosecution completes its evidence, and Moussaoui's lawyers had prepared such a motion. It was not made in open court, however, and when prosecutors rested their case yesterday, Brinkema convened a sealed hearing in a separate courtroom.
Immediately after the hearing ended, the defense began its case. Sources said later that Brinkema had rejected a defense motion that the case not be allowed to go to the jury.
The two sides yesterday waged a battle of dueling PowerPoint presentations through testimony from two former FBI agents. The final prosecution witness, Aaron Zebley, portrayed the government as a precise investigative machine that immediately would have reacted to the knowledge that Moussaoui was a terrorist operative plotting an attack. Moussaoui was arrested in Minnesota in August 2001, and prosecutors say he lied to the FBI about his plan to fly a plane into the White House.
"Could you have done this in August of 2001?" Assistant U.S. Attorney Robert A. Spencer kept asking Zebley, as Zebley tried to demonstrate how a single cellphone number on a Western Union wire transfer to Moussaoui could have led to phone, bank and other records -- which would have enabled investigators to track down at least 11 of the 19 hijackers.
Zebley, who left the FBI last year to become an assistant U.S. attorney, each time answered, "Yes."
The first defense witness, retired FBI agent Eric Rigler, walked jurors through a Justice Department inspector general's report from 2004 that criticized the government for failing to detect two hijackers who entered the United States in 2000. Khalid al-Mihdhar and Nawaf al-Hazmi at one point lived with an FBI informant in San Diego. The inspector general found that the CIA had known the two were in the country and were al-Qaeda operatives but delayed telling the FBI for more than a year.