In Routine Process, Moussaoui Jurors Weighing Unique Factors

It's 42 pages long and filled with complex questions that could explain why jurors in the death penalty trial of Zacarias Moussaoui completed their second full day of deliberations yesterday with no sign of when they will reach a verdict.

The 12-member jury is wading through a "special verdict form" that explores issues such as whether Moussaoui is responsible for all of the nearly 3,000 deaths Sept. 11, 2001, and whether executing him would make him a martyr. Jurors in every federal death case go through a similar exercise, which involves weighing the "aggravating factors" submitted by prosecutors against "mitigating factors" proposed by the defense.

The differences for these jurors are the nature of the questions and the subject matter -- the deadliest terrorist attack in U.S. history.

"No federal jury has ever seen an aggravator such as 3,000 people died," said Jonathan Shapiro, a defense lawyer who has tried death penalty cases at the same federal courthouse in Alexandria where the Moussaoui jurors are working on the seventh floor.

Usually, Shapiro said, mitigating factors suggested by defense lawyers involve things such as, " 'He's a good father; if you kill him, his kids will miss him . . .' The martyrdom thing definitely stands out here."

Not a word was heard yesterday from the jury, which has deliberated for 16 hours since getting the case Monday afternoon. On Tuesday, the nine men and three women asked the judge if they could have a dictionary, their only question thus far. U.S. District Judge Leonie M. Brinkema declined, saying jurors can only consider the evidence heard in court.

Moussaoui, 37, pleaded guilty last year to conspiring with al-Qaeda and is the only person convicted in the United States on charges stemming from the 2001 attacks. Earlier this month, after deliberating for 17 hours, the same jury found Moussaoui eligible for the death penalty, because his lies to the FBI when he was arrested in August 2001 allowed the Sept. 11 plot to go forward.

Jurors returned to U.S. District Court in Alexandria for an emotional second phase that featured testimony from several dozen family members of Sept. 11 victims, many of them sobbing on the stand.

If jurors do not agree unanimously that Moussaoui should be put to death, Brinkema will sentence him to life in prison with no chance of parole. She has indicated she will formally impose the sentence that day or the next.

Since the jurors are anonymous and little personal information is known about them, it will be difficult to determine the reasons for their verdict. But clues probably will be found in the verdict form.

The document provides a guide to the deliberations and also delves into the key issues in the case. Jurors must first determine whether prosecutors proved three "statutory aggravating factors" -- that Moussaoui committed his crimes "in an especially heinous, cruel or depraved matter," that he planned them to cause death and that he created a risk of death to others beyond the actual victims. Those would include people on the ground in New York when the World Trade Center collapsed.

If jurors find that prosecutors proved none of those factors, Moussaoui will get life in prison. If they find even one of them proven, jurors move on to seven other aggravators, such as Moussaoui's lack of remorse, the damage that Sept. 11 caused in Washington and New York and whether Moussaoui's actions "resulted in the deaths of approximately 3,000 people."

The jury is then required to consider the 23 mitigators, which include two questions about martyrdom and others that explore Moussaoui's mental state and troubled childhood and whether a sentence of life in prison "will be a more severe punishment." The verdict form will list how many jurors agreed with each mitigator, and it provides space for jurors to write in mitigators of their own.

After balancing all of the aggravators against all the mitigators, the jury will arrive at a sentence.