Doing Justice to Zacarias Moussaoui

Policy Review, Dec 2007/Jan 2008 by Rosenthal, John

When he finally was permitted to submit his guilty pleas in April 2005, Moussaoui - who always displayed an acute awareness of the record of the trial that was being created - drew attention to a passage in the transcript of the competency hearing from two days earlier that created the impression that he would be seeking the death penalty. Already in that hearing he had voiced his concerns that if he were not given an opportunity to speak when submitting his pleas, the court-appointed lawyers would attempt to misrepresent his intentions: "I know that these people who are the fools, media, whatever, they are going to attack my competency, okay? And I don't want them to have the opportunity to speak on my behalf" (April 20, 2005; 22). Now, he seized the occasion to set the record straight: "I can say . . . to you and to the lawyer and to the public that, no, Moussaoui will fight every inch against the death penalty" (April 22, 2005; 26). Just as he had anticipated, on trial the defense lawyers would attempt to exploit this single ambiguous passage from the competency hearing - the very same hearing in which he had explained that he was "playing for his life" - in order to suggest that he had been seeking to be put to death all along.

"They have decided to create a theory to put it in the air," Moussaoui noted disgustedly in April 2002 in moving for the dismissal of his lawyers. "They say, 'We are going to create a theory, we will make it hang in the air, and the jury will be confused. That's how you are going to save your life, Mr. Moussaoui.' Thank you very much" (April 22, 2002; 23). And, in effect, this is exactly what the defense did by "hanging in the air" or floating the obviously bogus theory that Moussaoui was seeking martyrdom. The defense was evidently prepared to wager that for a sufficiently uninformed jury, the claim might nonetheless prove persuasive.

Indeed, the defense floated numerous "theories" to the jury, some of which were clearly contradictory, but virtually all of which - in a bizarre perversion of the fiduciary relationship that is supposed to exist between lawyer and client - involved the attempt to demean or discredit the defendant. Thus, in his closing statement, MacMahon could all at once present Moussaoui as the master al Qaeda "manipulator" (March 29, 2006; 2788), fiendishly enveloping the jury in an impenetrably complex "plan," and as a bumbling "grifter" (2791) who was "useless" to al Qaeda (2775) - since, after all, Khalid Sheik Mohammed was supposed to have said so. In questioning flight instructor Clancy Prevost, MacMahon's colleague Kenneth Troccoli went so far as to call Moussaoui a "knucklehead" (March 9, 2006; 776): a characterization that was emphatically rejected by the witness. Indeed, virtually all those who had dealings with the defendant were impressed by his obvious intelligence. "Mr. Moussaoui is an extremely intelligent man," Brinkema noted in finding him competent to plead guilty. "He has actually a better understanding of the legal system than some lawyers I've seen in court" (April 22, 2005). And, despite the court's repeated findings in the matter, the defense attorneys continued to insinuate that their client was simply crazy. On the stand, Moussaoui derided this strategy as "cheap." "Broadly speaking for the American people anybody who fly a plane into a building is somebody who is . . . crazy," he noted dryly (April 13, 2006; 3677).