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Jurors Reject Death Penalty For Moussaoui

By Jerry Markon and Timothy Dwyer
Washington Post Staff Writers
Thursday, May 4, 2006

Al-Qaeda conspirator Zacarias Moussaoui will spend the rest of his life in a maximum security prison for his role in the Sept. 11 attacks after a federal jury rejected the government's four-year quest to secure his execution for the deadliest terrorist strike on U.S. soil.

After weeks of listening to harrowing testimony from 9/11 family members, hearing heartbreaking emergency calls and watching painful footage of victims jumping to their deaths, the anonymous jury of nine men and three women methodically deliberated for 41 hours over seven days before reaching its verdict yesterday.

Jurors carefully went over each question on a 42-page verdict form that gave only a few clues to their thoughts and reasoning. In the end, though, the form indicated that prosecutors could not surmount the main obstacle hanging over their case from the start: Moussaoui did not hijack anything Sept. 11, 2001, because he was sitting in jail.

The panel could not decide unanimously that Moussaoui caused the nearly 3,000 deaths, nor could it agree that he committed his crimes "in an especially heinous, cruel or depraved manner." Three jurors took it upon themselves to write that Moussaoui had "limited knowledge of the 9/11 attack plans."

"The jury seemed to be saying that he is a bit player, someone at the periphery," said Bruce Hoffman, a terrorism expert at the Rand Corp. "It boils down to someone whose hands were not drenched in blood."

As the verdict was announced in U.S. District Court in Alexandria, Moussaoui rolled his eyes and looked glum. But he yelled, "America, you lost. . . . I won!" as he was escorted back to jail. Family members of Sept. 11 victims, who had long awaited this day, showed little visible reaction in the courtroom's third row.

Moussaoui, 37, is the only person charged in a U.S. courtroom in connection with the attacks, in which planes were crashed into the World Trade Center, the Pentagon and a Pennsylvania field. After four years of delays, twists and turns in his criminal case, he pleaded guilty last year to conspiracy.

He will live out his days in the nation's super-maximum security prison in Florence, Colo. Prosecutors cannot appeal the jury's decision, which is technically a recommendation but which U.S. District Judge Leonie M. Brinkema is legally bound to uphold. She is scheduled to formally sentence Moussaoui this morning.

The verdict was a resounding victory for Moussaoui's defense team, which battled through the higher and lower courts for a client who admitted allegiance to Osama bin Laden, vowed to kill Americans, pleaded guilty against lawyers' advice to the country's worst crime, fought them at every turn and visibly despised them.

Outside the courthouse yesterday, one of them, Gerald T. Zerkin -- derisively called a "Jewish zealot" by Moussaoui -- said the jurors concluded that Moussaoui's "knowledge of 9/11 and his role in 9/11 was not that great."

Defense lawyer Edward B. MacMahon Jr. said the dozen Sept. 11 family members who testified for the defense -- in defiance of more than three dozen who took the stand for the prosecution -- had "testified as citizens of a free nation, uncowed by terrorism."

"None of them testified for Moussaoui," MacMahon said.

Prosecutors were in a grimmer mood, but elements of their message were the same: that the justice system, which often seemed tied in knots by the Moussaoui case and its serial delays and twists, had worked in the end. The Justice Department insisted on trying Moussaoui in the criminal courts to show that the system could handle complex terrorism matters, resisting pressure from others in the government who wanted to bring Moussaoui before a military tribunal.

"At times this was a maddening experience," a grim-faced Deputy Attorney General Paul J. McNulty said outside the courthouse, flanked by two dozen prosecutors. Despite the verdict, McNulty, who as U.S. attorney in Alexandria headed the prosecution until his recent promotion, said the case was an "opportunity to tell a very important story."

President Bush said during a meeting with the visiting German chancellor that the verdict left him undaunted in the fight against terrorism.

"Mr. Moussaoui got a fair trial," Bush said. "I know that it's really important for the United States to stay on the offense against these killers and bring them to justice." He added that the jury chose to spare Moussaoui's life even though that "is something that he evidently wasn't willing to do for innocent American citizens."

Some legal experts agreed that the case, and especially the jury's reluctance to impose a death sentence, had brought out the best of American justice, despite the complications. "No one can accuse this of being a kangaroo court or say Moussaoui was railroaded," Hoffman said.

But others said the verdict showed that the government had wasted years and millions of taxpayer dollars pursuing Moussaoui when prosecutors could have settled for a life sentence several years ago.

"We would have spared ourselves enormous cost and expense and having to deal with Moussaoui and giving him the forum he wanted," said Stephen A. Saltzburg, a law professor at George Washington University. "The government will say the 9/11 families got closure and had a chance to tell their stories, but the fact is they didn't get closure. What they got was a defendant who insulted them and demeaned their dead."

Yesterday's verdict culminated a seven-week sentencing trial that became an outpouring of emotion reflecting the national trauma of the attacks. It remained uncertain whether the man whose life was spared views the decision as a positive development or a setback. Moussaoui's testimony during the trial convinced many legal experts that he wanted to die a martyr. But jurors rejected that notion, saying on the verdict form that none of them believed that Moussaoui wanted to die or that his execution would be part of his jihad.

Instead, a majority of the jurors sided with the defense suggestion that Moussaoui had an unstable childhood and a violent father, and agreed that those were mitigating factors against execution.

In reaching its decision, the jury waded through a "special verdict form" that explored issues such as whether Moussaoui was responsible for the Sept. 11 deaths and whether executing him would make him a martyr. Federal death penalty law mandates that jurors go through such an exercise, which involves weighing the "aggravating factors" submitted by prosecutors against "mitigating factors" proposed by the defense.

Federal juries nationwide have chosen life over death by a 2 to 1 margin since the early 1990s, statistics show. None of the six defendants eligible for the death penalty in the Alexandria courthouse since 1998 has received it.

The Moussaoui jurors concluded unanimously that prosecutors had proved most of the aggravating factors, including that Moussaoui showed no remorse and that the Sept. 11 attacks caused vast damage in New York and Washington. Their reaction to the mitigating factors varied widely. Nine jurors agreed with the defense that Moussaoui's dysfunctional early childhood and abusive father were mitigating, but none found that executing Moussaoui would make him a martyr. No jurors agreed with the defense that a sentence of life in prison would be a greater punishment.

Moussaoui's path to prison began when he was arrested on immigration charges more than three weeks before Sept. 11, when his behavior aroused suspicion at a flight school in Minnesota. He refused to cooperate with the FBI, denying that he had terrorist ties and telling agents that he had come to the United States as a tourist.

In the frantic days after the attacks, Moussaoui became the object of rampant speculation about whether he was supposed to be the 20th hijacker, fly a fifth plane or perhaps be ready for some post-Sept. 11 attack.

Prosecutors have never said what Moussaoui's exact role was supposed to be Sept. 11, though they indicated during the trial that Moussaoui was telling the truth when he testified that he was supposed to hijack a fifth plane and crash it into the White House.

The case endured years of delays and complications, caused in part by Moussaoui's desire to represent himself. Brinkema allowed him to but later restored his attorneys after Moussaoui filed several hundred blistering handwritten pleadings from jail in which he insulted his lawyers, prosecutors and the judge.

After two more years of delay caused by a legal battle over whether Moussaoui could interview top al-Qaeda detainees who he said could help clear him, prosecutors finally stood before the jury March 6. They argued that Sept. 11 would have been prevented and nearly 3,000 lives saved if Moussaoui had not lied to cover up the terrorist plot. Defense attorneys insisted that investigators ignored warning signs before the attacks and likewise would have failed to act on Moussaoui's information.

On April 3, after four days of deliberations, jurors found Moussaoui eligible for the death penalty, concluding that his lies allowed the Sept. 11 plot to go forward. Three days later, the sides began a second phase that was gripping in its emotion and historic in its content.

More than 35 family members took the stand, many sobbing as they told heart-wrenching tales of their losses and enduring grief. Prosecutors showed video of the World Trade Center crumbling and people jumping out windows and played, for the first time in public, recordings of 911 calls that depicted the panicked voices of people inside the towers who were about to be overcome by flames and smoke.

Defense lawyers fought back by presenting Sept. 11 family members of their own, who emphasized that they were moving on from their grief. The attorneys also presented evidence of Moussaoui's troubled childhood and the testimony of a psychologist who said Moussaoui has schizophrenia and is delusional.

After the jury foreman -- a Loudoun County teacher who was dressed all in black -- presented the verdict and Brinkema read it to the courtroom, the judge offered praise for how prosecutors and defense lawyers had handled what she called an extremely difficult case.

"The government only wins when justice is done," she said. "Justice is not necessarily what the outcome is but how it was achieved."

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