Moussaoui's Fate Is in the Jury's Hands

Federal juries nationwide have also strongly preferred life over death. Since 1991, juries have voted for death sentences 51 times, compared with 93 sentences of life in prison, according to the Federal Death Penalty Resource Counsel. Since 2000, amid publicity about some death row inmates being exonerated by DNA and other evidence, federal juries have returned 69 life sentences, compared with 29 for death.

In the case most comparable to Moussaoui's, the 2001 trial of four al-Qaeda members accused of blowing up U.S. embassies in East Africa, a federal jury in New York chose life in prison instead of death for the two defendants eligible for death. Ten jurors wrote on the verdict form that executing one of the men would make him a martyr, and five said life in prison would be a greater punishment.

"Killing isn't easy, and jurors only do it when they perceive it's absolutely necessary," said Kevin McNally, a defense lawyer affiliated with the death penalty resource group, which tracks federal capital cases nationwide. He added, however, that jurors are more likely to vote for death when they are swept up in a "tidal wave of emotion," such as in the Moussaoui case, and that Sept. 11 separates the Moussaoui prosecution from all others.

McNally said "9/11 is a symbol of this country, a national tragedy. Someone has got to pay."

Prosecutors mentioned the embassy bombing verdict in their closing argument yesterday but sought to turn it to their advantage. Assistant U.S. Attorney David Raskin noted that the Sept. 11 attacks came three months after that verdict and suggested that jurors should not worry about whether executing Moussaoui would make him a martyr.

"Osama bin Laden couldn't care less what happens here," he said. "He hates us, and he's always going to hate us, whether Zacarias Moussaoui is in jail or whether he is executed."

In rendering their verdict, jurors are weighing a group of "aggravating factors" suggested by prosecutors against "mitigating factors" proposed by the defense. Prosecutors zeroed in yesterday on the aggravating factor that said Moussaoui had committed his crimes in an especially heinous and cruel manner.

Although Moussaoui was sitting in jail Sept. 11, prosecutors convinced the jury in the trial's first phase that he was culpable for the deaths because he lied to the FBI, after his arrest in August 2001, to allow the plot to go forward.

"Cruel, heinous and depraved does not even begin to tell this story," Raskin said as pictures of Sept. 11 victims flashed on television screens and Moussaoui smiled. "It's more than lack of remorse, ladies and gentlemen, it's hatred, it's evil, it's unexplainable, incomprehensible evil, and it's everything you need to know about this defendant."

On that point -- Moussaoui's lack of remorse -- the defense agreed. When the defendant testified, he said the Sept. 11 family members who testified against him were "disgusting," and he vowed to kill all Americans.

Calling that testimony "callous and remorseless," Zerkin said: "It is easy to despise Mr. Moussaoui. He has invited you, encouraged you, to do that, sitting there smugly, almost as if he thinks this is all a game."

Zerkin said Moussaoui is a "sacrificial lamb" and noted that the government has not put on trial higher-ranked al-Qaeda leaders who have been captured, such as Sept. 11 mastermind Khalid Sheik Mohammed. He and other operatives are being questioned in undisclosed locations.

"No, it's just Mr. Moussoaui," Zerkin said, "a veritable caricature of al-Qaeda terrorist, the operative who couldn't shoot straight."

Prosecutors suggested in their response that Muhammad and other al-Qaeda leaders would be brought to trial eventually, although it was unclear whether that would be in a U.S. criminal courtroom or before a military tribunal.

"They're going to have their day," Novak said. "They're going to face justice, just like this defendant did, when their interrogation is over."