If you are a defendant in the criminal justice system, you can choose to play the game or you can choose not to play the game. You can dispute the charges against you or you can plead guilty or even "no contest" to allow the process to move more quickly. What you cannot do is demand and expect the rules of the game to change for you, especially once the contest has started.
Among the many problems Zacarias Moussaoui has right now, in the wake of Thursday's disaster of an arraignment, is his insistence on trying to tweak long-established judicial rules in order to get the result he says he wants. He may want to control his ultimate destiny -- who doesn't? But he's barking up the wrong tree if he thinks that even ever-patient U.S. District Judge Leonie M. Brinkema is going to alter hundreds of years of legal precedent to allow him to custom tailor a guilty plea to match his own vision of the case against him. Defendants can't take one allegation from one charge, combine it with another allegation from another charge, make a guilt casserole and then hand it up to the judge and say: bake me.
Judge Brinkema didn't say so Thursday afternoon -- she didn't have to -- but no law anywhere in this country allows a capital defendant to plead guilty to only some but not all of the charges against him and then admit only to some of the facts upon which those selected and selective charges are based. That's precisely why the manipulative, but ultimately self-defeating Moussaoui, is doomed to an immediate future of frustrated and frustrating court appearances. It's an all-but-certain future, actually, if the judge -- even after Thursday's hearing -- allows Moussaoui once again to go through a plea process that twice now has failed everyone involved.
A much more productive scenario, it seems to me, has Judge Brinkema thinking, if not actually saying, 'enough is enough' and then entering on Moussaoui's behalf a "not guilty" plea on all six charges against him. It's a move that would shake the case out of its current limbo -- there are no hearings currently scheduled -- and rocket it toward trial at the end of September or later this fall. It's also a move that could give the case a chance to resolve itself much more purely and completely than it now looks like it will. Judges often deny pre-trial motions because they are willing to allow juries to sort out complicated facts and issues. I wouldn't blame Judge Brinkema at all, then, if she were to consider Moussaoui's plea position to be in the manner of a motion that is better off resolved by jurors.
She'd essentially be telling Moussaoui this: 'You want to explain to the American people what you did and did not do before Sept. 11, Mr. Moussaoui? Great. Save it for trial. Save it for your opening statement and your closing argument. Save it for the questions you will be entitled to ask on direct- and cross-examination. Save it for your sentencing hearing if the case makes it that far.'
Judge Brinkema has given Moussaoui exceptional latitude so far. She's allowed him to represent himself despite the obvious fact that it is against his legal interests to do so. She has put up with his Senior Wences imitation in court – 'Yes, I'm guilty. No, I'm not guilty. Yes, I am. No, I'm not.' Now it may be time to simply force him back into line; back into the trial schedule he seems at once to want to embrace and avoid. If not now, when?
In the meantime, with their ultimate goal there and gone in a flash, federal prosecutors ought to be thinking about how they can turn a complicated, confusing procedural mess into a short and swift victory. If Moussaoui is genuinely willing to admit to certain facts that constitute crimes -- apparently the parties are willing to agree on that much -- perhaps it's time for the government to work with on him on ensuring that his admitted facts better match the crimes for which he has been charged. I don't think Moussaoui will cooperate with government attorneys -- he won't even talk to his own attorneys -- but it would be fascinating to see the government try.
The Justice Department essentially would tell Moussaoui this: 'What are you willing to admit to? Tell us everything and then we will use those statements to create charges that you are comfortable with. That way, you won't be able to accuse us of alleging facts that are not true. At the same time, you will avoid pleading guilty to something you say never happened. And if you are willing to go even further and give us some useful information, we may be able to convince our bosses to preclude the possibility of a death sentence.'
I'm not betting that any such exchange will occur between Moussaoui and the government he pledged to destroy a few months ago. But Moussaoui did say Thursday that he was willing to plead to each of the four capital charges against him. And if this zany, slapstick case has taught us anything, it's that anything can happen, even when the stakes are as high as they are in the case of United States v. Moussaoui.
By Andrew Cohen