Judging the Moussaoui Jury

By Andrew Cohen
Special to washingtonpost.com
Thursday, May 4, 2006; 10:38 AM

Enough of them got it right in the end. And perhaps in trials like this the end justifies the means. But the completed jury verdict form in the just-completed Zacarias Moussaoui terror conspiracy trial is notable as much for its contradictions and oddities as for its insights into the case.

As you know by now, Moussaoui's federal jury was unable after more than 41 hours of deliberations to unanimously agree that the confessed al Qaeda operative deserved the death sentence for whatever role he may have played in the planning and preparation for the terror attacks of September 11, 2001.

The jurors did not provide a numerical split of who had voted for death and who had voted for life in prison without the possibility of release. But the numbers we do have from the votes on the "aggravating" and "mitigating" factors included in the form reveal how trials by jury are still way more art than science no matter how hard judges and lawyers and jury consultants strive to make them otherwise. During cases like this, we tend to raise up jurors as sages, for they hold an awesome power in their collective hands. But more often than not, when we see these forms we are reminded that their authors are only human.

That's probably the best explanation I can offer for why only one juror out of 12 agreed that Moussaoui was "incarcerated' on 9/11 even though everyone who knows anything about this case knows that he was in a Minnesota jail when the Twin Towers fell. What were the other 11 jurors thinking? Perhaps that being in jail isn't the same as being incarcerated? We will never know. Nor will we know why only one juror out of the group believed that the Bureau of Prisons has the "authority and ability" to keep Moussaoui secure and away from the rest of us for the rest of his life. It's certainly not an endorsement of the public's view of the Bureau, right?

There were other oddities on the form. For example, on the first capital count, nine jurors agreed with defense lawyers that Moussaoui had an "unstable early childhood" and that his father abused his family. But on the other two capital counts, only eight jurors agreed about Moussaoui's childhood and only seven agreed that his father was abusive. What made jurors change their minds about Moussaoui's past from the first count to the others? And why did three jurors, at a minimum, refuse to believe this part of Moussaoui's story altogether? There was no evidence at trial to contradict it.

Why did only five jurors out of the 12 sign off on the statement that Moussaoui "will be incarcerated in prison for the rest of his life..." if he weren't executed? Did the seven other jurors think that Moussaoui is going to be broken out of the Supermax facility in Florence, Colorado, the toughest maximum security prison in the country? Why did 10 jurors refuse to agree that Moussaoui's father abandoned him when there was no evidence to the contrary? Why did nine jurors refuse to believe that the guy was the victim of racism when he was growing up in France? Again, prosecutors offered no evidence to contradict this conclusion.

The form reveals how broadly and deeply both sets of lawyers missed their marks with strategies, theories and arguments. For example, the defense decision to put Moussaoui's mental health into play as a mitigating factor was a complete disaster. No jurors believed that Moussaoui suffers from "a psychotic disorder." Nor, surprisingly to me, did any jurors believe that "the execution of Moussaoui would create a martyr for radical Muslim fundamentalists." And not a single juror bought the argument that a life sentence for Moussaoui would actually be harder than a capital one. These good arguments were snubbed by the panel.

For prosecutors, the verdict form represents a complete repudiation of their efforts to get a death penalty. Perhaps that is why the feds were so visibly glum during their post-verdict press conferences. First off, the jury refused to agree unanimously that Moussaoui committed his offense "in an especially heinous, cruel, or depraved manner." And then, in a reverse coup de grace, three jurors took the unusual step of listing their own "mitigating factor" supporting a life sentence instead of the death penalty. "Zacarias Moussaoui," one juror wrote on behalf of two others, "had limited knowledge of the 9/11 attack plan."

But that affirmative statement by those three jurors contradicts other conclusions in the form. For example, not a single juror believed that Moussaoui's testimony about flying into the White House was "unreliable and contradicted by his statements about other plots he was involved in." So, if the jury unanimously believed Moussaoui's testimony as reliable, why didn't jurors unanimously believe that he was a key part of the hijack plot? After all, that is precisely what he testified to in open court, not once but twice? It just doesn't make any sense.

Likewise, jurors unanimously found that Moussaoui was more than an "ineffectual al Qaeda operative" and that his role while in Afghanistan was not merely as a "security clerk at a guesthouse and as a driver for persons staying at the guesthouse." But the jury also was unwilling to conclude that the Moussaoui's "actions.. resulted in the death of approximately 3,000 people." If this last point accurately reflects the jury's thinking, then why did the panel last month unanimously agree that Moussaoui caused death on 9/11? Which deaths did he cause to get prosecutors past part I of the sentencing trial but not past that part of the verdict form this time around?

When you add up all the numbers, and all the bank shots in logic, and all the contradictions and contrasts, you get the sort of jumble that defense attorneys love and that prosecutors hate. Complexity in a capital case almost always saves the defendant and in this case it did. That is the real story of the Moussaoui capital case; a case that began with unfounded certainty, and endured through unremitting chaos, ends with deep and lasting ambiguities. It is perfectly fitting, when you think about it, that Moussaoui's jurors would have gone off in so many different directions. The government sure did when it came to the defendant. And the defendant sure did when it came to telling his own story about the worst crime in American history.

Andrew Cohen analyzes legal issues for the washingtonpost.com. He is also CBS News' chief legal analyst and his online columns for CBSNews.com can be found at: http://www.cbsnews.com/stories/2006/05/03/opinion/courtwatch/main1584751.shtml

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