Moussaoui's Courtroom Commotion

Katie Leung poses at the premiere of "The Bourne Ultimatum" in London on Aug. 15. Getty Images/MJ Kim

CBSNews.com Legal Analyst Andrew Cohen takes a look at why Zacarias Moussaoui tried to fire his attorneys. Moussaoui is charged with conspiracy to commit terrorism in connection with the Sept. 11 attacks.

By publicly praying for the destruction of the United States and Israel -- by implicitly praying for the death of his yet-to-be-selected jurors -- Zacarias Moussaoui in just a few minutes Monday turned his capital case from a legal one into a political and religious one. In doing so, he's jeopardized whatever chance he had of being acquitted and spared the death penalty for the conspiracy and terror-related charges against him while at the same time serving notice that he is not going to accept the formalities and presumptions that most of us take for granted in our criminal justice system.

It's always a surprise when a defendant who is represented by very good attorneys stands up in court and seeks to have them fired. And I'm sure there aren't many federal judges in the land who have heard a capital defendant accuse his lawyers of being part of a conspiracy to have him executed. But I'm not sure Moussaoui's strategy is a terrible shock to prosecutors and others who have long believed that he is and was a terrorist. From the government's point of view, why should anyone who is dedicated to the destruction of a society be willing to play along with that society's legal rules? Why would anyone willing to fly into a building meekly accept the federal rules of procedure or evidence?

What Monday's courtroom turnaround tells me is Moussaoui cares very little about his fate -- legal or otherwise -- and that he is willing to write off whatever substantive and procedural benefits any capital defendant would be entitled to in any court in the country. He's perfectly entitled to take that position, of course, but it hardly proves much other than that he is prepared to die for his beliefs, which is just about what federal prosecutors accused him of. Moussaoui's stand also distinguishes him from Oklahoma City bomber Timothy McVeigh, for example, who wanted to turn his trial into a political one focusing upon the government's actions in 1993 at the Branch Davidian compound.

Like Moussaoui, McVeigh also wanted to fire his lawyers, or at least his lead attorney. Unlike Moussaoui, however, McVeigh never made the request so public and so spirited. And when a federal judge refused to allow McVeigh's attorneys to take the trial in a political direction, the star soldier settled for the non-political defense the world saw at his 1997 trial; one which focused lamely upon reasons why McVeigh may not have been involved. That's clearly not going to happen here. Otherwise, why would Moussaoui seek a Muslim attorney over his current attorneys "who have," Moussaoui told the judge, "no understanding of terrorism, Muslims and Mujahadeen"? Moussaoui's current attorneys -- the ones he wants to fire -- are competent, respected, experienced, dedicated lawyers who had shown in their few months on the job that they were taking his defense very seriously. The only reason to fire them would be to emphasize the politics of the defense case over the law of it.

But after what happened on Sept. 11, and after the government gets through with its case that Moussaoui was the "20th" hijacker who would have been on Flight 93 which crashed in Pennsylvania had he not had the bad luck to be captured last August, Moussaoui quite obviously isn't going to get very far legally or practically trying to explain terrorism or the policies and practices of the Mujahadeen to his Virginia jury. Those jurors are not going to be looking for or interested in explanations about why terrorists do what they do. They won't be looking for justifications or rationales and if Moussaoui intends to offer that at trial he is almost certainly facing the likelihood of conviction and condemnation. Maybe that's why Moussaoui also asked his judge Monday to forego the jury in the case -- an impossibility here since only a jury can sentence someone to death under federal law.

So what happens now? Well, first Moussaoui will have to visit with court-appointed medical specialists who will determine whether he is competent to stand trial. If he reacts to those psychiatrists and psychologists and others as poorly as he has reacted to his own attorneys, that inquiry ought to prove fairly inconclusive. That means that Moussaoui likely will be found competent to stand trial. Just because you lash out in court doesn't mean you don't understand the nature of the charges against you. If anything, Moussaoui's outburst Monday suggests that he is perfectly competent to stand trial since he understands fully much of what he is up against. And he wouldn't be the first person ordered to stand trial after declaring that the world was out to get him.

U.S. District Judge Leonie Brinkema also will have to decide whether she is willing to give Moussaoui new attorneys -- Muslim ones at that -- and, if so, whether the appointment of new counsel does anything to the late-September trial date. Any new attorney brought into the case to represent Moussaoui will have to undergo and pass a security review to ensure he or she is able to review classified material the government may use in its case against Moussaoui. That review, and just allowing the new attorney(s) to get up to speed may force the judge to push back the trial date a month or two. Remember, also, that the John Walker Lindh trial is scheduled to begin in that same Alexandria, Va. courthouse before the Moussaoui trial is scheduled to get underway and that the alleged shoe bomber, Richard Reid, is scheduled to go to trial in November, after the Moussaoui case was to have been completed. Will the government want to try two terror-suspects at the same time in two different states? Will judges permit it? Or will Moussaoui's trial get bumped to early 2003? Stay tuned. If Monday's court hearing is any indication, this case is likely to have a few more surprises to it before it's done.
  • chris oregan

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