Attorney Andrew Cohen analyzes legal stories and issues for CBSNews.com and CBS News.
If you know what Zacarias Moussaoui is going to do Thursday at his scheduled plea hearing then you are one up on federal prosecutors, stand-by defense attorneys, and the judge in his case. Moussaoui's conduct over the past few months has been so erratic -- his in-court statements so contradictory -- that there is virtually no way to predict whether Moussaoui will plead guilty to some or all of the terror conspiracy charges or whether he will change his mind once again and decide to contest the case.
It's not beyond the realm of reason, depending upon what he does and says during the hearing, that U.S. District Judge Leonie M. Brinkema will find Moussaoui incompetent to represent himself. Earlier this week, the judge reiterated her position that the defendant is competent to represent himself, although she conceded that his jailhouse motions were becoming "increasingly confrontational."
But Thursday's hearing may push her over the top, especially if Moussaoui decides to plead guilty. In that case, he then has to answer nearly an hour's worth of questions from the judge during the necessary colloquy that accompanies a plea.
Given his recent antics in court, it's hard to imagine how Moussaoui is going to get through that long question-and-answer session without either backtracking on his plea or driving the judge herself to the point of exasperation. Last week, for example, Moussaoui asked to plead guilty so he could get right to the trial, not understanding, apparently, that a guilty plea would mean his case bypasses a trial and goes right to its sentencing phase. It's more likely that Moussaoui's responses will be confused to the point of meaninglessness than it is that he'll say the right things at the right time to give the judge comfort that the plea is knowing and voluntary.
It's also conceivable that the judge simply would delay the plea hearing a few weeks or so to allow Moussaoui to be re-evaluated by court-appointed doctors. Moussaoui's stand-by attorneys -- the ones he isn't talking to these days -- asked her to do that Wednesday afternoon. Have the doctors check him out again, the defense attorneys suggested to Judge Brinkema, and while you are at it, resolve all of the death penalty issues in the case before you allow Moussaoui to cop a plea that could cost him his life. If the judge wants to be truly cautious about proceeding, she very well could accept that suggestion. It certainly would reduce the chances of a problem on appeal.
Then there is the growing problem of precisely what charges Moussaoui is willing to plead guilty to. CBS News reported a few weeks ago that some U.S. officials believe that Moussaoui was not the "20th hijacker" from Sept. 11th, but rather in training for a subsequent terror attack.
Over the weekend, the New York Times published a similar story. So what happens if, as Moussaoui suggested last week, he stands up Thursday and says he is willing to plead guilty to only some of the charges against him? Or if he stands up and says he's willing to plead guilty to a different set of crimes than those with which he has been charged?
If that happens -- don't bet the ranch against it -- Judge Brinkema would not be able to accept the plea. It's all or nothing in a case like this. And such a scenario would be mortifyingly embarrassing to federal prosecutors, who have been claiming all along that they know what Moussaoui was and was not up to in the months before last September. They'd have to go back to the drawing board, perhaps, and re-indict Moussaoui for a third time, this time using his own in-court words to make their case against him. And they'd have to answer questions about the ethical propriety of a prosecution moving forward when prosecutors know or have reason to know the allegations in the indictment aren't accurate. Lawyers aren't supposed to play the game that way, even when the legal and political stakes are as high as they are in this case.
Those are most of the messy things that can happen Thursday morning. But it doesn't have to happen that way. If the John Walker Lindh and Moussaoui cases have taught us anything to date it's that we ought to expect the unexpected. It's certainly possible, then, that Moussaoui will jump through all the hoops and actually plead to the right crimes in the right order. If that happens, prosecutors will have to make tough decisions about how they want to proceed with the sentencing hearing that will follow.
If government attorneys still want to pursue the death penalty against Moussaoui, the sentencing hearing will look an awful lot like a mini-trial, without the presumption of innocence that attaches to the defendant. A sentencing jury will have to be empanelled because only a jury in a case like this can recommend a death sentence. Judge Brinkema will have to voir dire those jurors to ensure they can judge Moussaoui's fairly despite his guilty plea. The feds will still have to prove some of the elements of the underlying crimes in order to establish the "aggravating factors" necessary to impose a death sentence. And Moussaoui will be able to present a defense designed to spare his life.
The Justice Department can avoid all that, of course, by making a deal with Moussaoui which spares his life but which also requires him to tell what he knows about his al Qaeda buddies and the September attacks. A deal like that makes sense legally, politically and even militarily. It would save the government's "vital but limited resources," to use the words of US Attorney Paul McNulty last week when he justified the Lindh deal. It would also give interrogators valuable information they aren't getting from the detainees at Guantanamo Bay.
It would also serve to stop cold Moussaoui's courtroom antics and political ruminations. That alone, I suspect, holds tremendous value these days for a government that has plenty else to worry about in the legal war on terror.
By Andrew Cohen
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