Moussaoui's Fate Is in the Jury's Hands
Prosecution in Terrorism Case Argues for Death Sentence; Defense Asks for Life in Prison

By Jerry Markon and Timothy Dwyer
Washington Post Staff Writers
Tuesday, April 25, 2006

Jurors began deliberating the fate of Sept. 11, 2001, conspirator Zacarias Moussaoui yesterday after prosecutors implored them to send a message to the terrorists who would strike America again and sentence the al-Qaeda operative to death.

"This is the United States of America, and we are not going to put up with a bunch of thugs who invoke God's name to slaughter 3,000 people," said Assistant U.S. Attorney David J. Novak, during closing arguments in which prosecutors called Moussaoui "pure evil" and said "there is no place on this good Earth" for him.

Defense attorneys countered that jurors should reject the "easy answer" of sentencing Moussaoui to death. Because Moussaoui is seeking martyrdom, defense attorney Gerald T. Zerkin suggested, the jury should do the opposite and force him to spend the rest of his life withering in prison.

"He wants you to sentence him to death," Zerkin said. "He is baiting you into it. He came to America to die, in jihad, and you are his last chance."

After all of the emotion and all of the tears, all the weighty matters of national security and the calls for justice for the dead, the case for the execution of Zacarias Moussaoui is now in the hands of the federal jury in Alexandria.

Jurors began deliberating Moussaoui's fate yesterday afternoon after closing arguments that reflected the intense feelings that animated the seven-week sentencing trial. Once more, prosecutors flashed photographs of some of the nearly 3,000 people killed and played videotapes of victims jumping from the burning World Trade Center.

Defense attorneys displayed photos of their own in the U.S. District courtroom. One showed Martin Luther King Jr., who witnesses said was Moussaoui's childhood hero. A second featured al-Qaeda leader Osama bin Laden. "How did Moussaoui go from having him as an idol," Zerkin said, referring to King, "to having him [bin Laden] as his spiritual guide."

The answer, Zerkin suggested, lies in Moussaoui's troubled childhood, which led to an adulthood in which he was easy prey for recruitment by terrorists.

Jurors filed out of the courtroom with their heads down, looking grim. The last one to leave, a man in a blue suit and a red tie, stared across the courtroom at Moussaoui. The defendant did not look back but had earlier smiled when prosecutors described the suffering of victims of the attacks on the trade center and Pentagon. As he left the courtroom for a midmorning break, Moussaoui shouted: "You'll never get me, America! Never, never!"

Moussaoui, 37, pleaded guilty last year to conspiring with al-Qaeda. He is the only person charged in the United States in connection with Sept. 11. The jury found him eligible for the death penalty last month, then returned to court for a second phase in which prosecutors presented relatives of victims, many sobbing on the stand, who told of their pain and loss. They also showed people jumping, and the towers falling, and played 911 calls of frantic people about to be overcome by smoke and flames.

The Justice Department chose to charge Moussaoui in Alexandria -- instead of New York, where most major terrorism trials have been held -- in part because the jury pool is considered more conservative.

Yet the effort to secure Moussaoui's execution is fighting the weight of recent history: A federal jury in Alexandria has never voted for a sentence of death. Five times since 1998, in cases with defendants ranging from convicted spy Brian P. Regan to two members of the Mara Salvatrucha street gang convicted of killing a federal witness, juries have instead chosen life in prison.

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."