By Timothy Dwyer
Washington Post Staff Writer
Friday, May 12, 2006
Only one juror stood between the death penalty and Zacarias Moussaoui and that juror frustrated his colleagues because he never explained his vote, according to the foreman of the jury that sentenced the al-Qaeda operative to life in prison last week.
The foreman, a Northern Virginia math teacher, said in an interview that the panel voted 11 to 1, 10 to 2 and 10 to 2 in favor of the death penalty on three terrorism charges for which Moussaoui was eligible for execution. A unanimous vote on any one of them would have resulted in a death sentence.
The foreman said deliberations reached a critical point on the third day, when the process nearly broke down. Frustrations built because of the repeated 11 to 1 votes on one charge without any dissenting arguments during discussions. All the ballots were anonymous, and the other jurors were relying on the discussions to identify the holdout.
"Wednesday [April 26] was a very intense day," she said. "But there was no yelling. It was as if a heavy cloud of doom had fallen over the deliberation room, and many of us realized that all our beliefs and our conclusions were being vetoed by one person. . . . We tried to discuss the pros and cons. But I would have to say that most of the arguments we heard around the deliberation table were" in favor of the death penalty.
The foreman, who said she voted for the death penalty because the government proved its case, was the second juror to be interviewed by The Washington Post since the trial ended last week. The first juror said he voted for life in prison because he thought that Moussaoui's role in the Sept. 11, 2001, attacks was marginal. He said some other jurors shared his point of view, but he would not reveal the vote. Questioned again after the foreman's comments, the first juror said that he is "happy someone else came forward" and that the 12 jurors "differed in the way we interpreted the things we saw and heard." He declined to discuss the deliberations further.
The foreman said deliberations broke off April 26 when one juror questioned why they should take another vote. "What for?" the foreman remembers the juror saying, "We all know how it is going to come out."
The next day a juror called in sick, and there were no deliberations. That Friday, the jury returned. The foreman told the group that she wanted to send a note to U.S. District Judge Leonie M. Brinkema stating that the jury was "not holding deliberations in the true sense of deliberations because the con arguments were not being thrown out on the table so we could investigate them as a group."
She said the jurors did not want any notes sent to the judge, so they decided that the whole group would raise anti-death penalty issues because that way the lone dissenter would not feel isolated or "ganged up on." Deliberations continued, but the foreman said the lone dissenter still did not raise any issues. Three days later, jurors delivered their decision to Brinkema.
The foreman said at the end of the deliberations she felt better about the process but not the outcome.
"I felt frustrated," she said, "because I felt that many of us had been cheated by the anonymity of the 'no' voter. We will never know their reason. We will never be able to hold their reason up to the light and the scrutiny of evidence, fact and law."
Brinkema ordered that the identities of the jurors be withheld for security reasons. The foreman contacted The Post and the interview was conducted on the condition of anonymity by a reporter who recognized her from the trial.
Moussaoui, 37, the only person convicted in the United States in connection with the attacks on the World Trade Center and Pentagon, pleaded guilty last year to taking part in a broad al-Qaeda conspiracy to crash planes into U.S. buildings. Moussaoui, a French citizen, testified that he had planned to fly a fifth hijacked airplane into the White House on Sept. 11.
The foreman said Moussaoui's testimony, though dramatic, had little impact on deliberations in either phase of the sentencing trial. In the first phase, the jury found that he was eligible for the death penalty. In the second, the panel could not agree on a death sentence, so Moussaoui automatically was sentenced to life in prison.
"Most of the jurors didn't give much weight to Moussaoui's testimony in the first part or the second part," she said. "Though I gathered from his second testimony that he really didn't want the death penalty. I gathered that from a few comments he made."
The jurors did not believe the defense team's argument that Moussaoui was suffering from mental illness, the foreman said, but they thought some of his actions, including volunteering to testify for the prosecution, were "bizarre."
But bizarre behavior does not equal mental illness, she said. "We did not put any credence in that," she said. "That was a given. . . . I think most of us found Moussaoui to be intelligent, smart, crafty and a great manipulator. Those were the comments that were frequently thrown around the table."
She said jurors found that Moussaoui was eligible for the death penalty after the trial's first phase because they decided that at least part of the Sept. 11 attacks could have been prevented if he had not lied to the FBI after his arrest in August 2001.
She said the jury went through the evidence methodically, creating a timeline of events that might have taken place if the government had allowed FBI agent Harry Samit to obtain a warrant to search Moussaoui's belongings. Each day, she said, the jurors would take photos by famed photographer Ansel Adams off the walls and hang posters they had created to keep track of the evidence. At the end of the day, they would carefully rehang the photos.
She said the initial vote in the first phase was 10 to 2, but once jurors completed the timeline, a unanimous verdict came quickly. "We were very exacting. We were very careful," she said. "And I think because of the emotional nature of 9/11 that we went out of our way to be driven by evidence, facts and inferences beyond reasonable doubt."
She has gone back to work after taking a few days off and is still processing the experience. She still wonders why the one dissenter never raised specific objections to sentencing Moussaoui to death.
"We don't know whether we covered all of the cons in the deliberations," she said. "Our sense was this was a done deal for that person and whoever that person is, they were consistent from the first day and their point of view didn't change."
Staff writer Jerry Markon contributed to this report.