Moussaoui's Plea Creates Uncertainty

Attorney Andrew Cohen analyzes legal stories and issues for CBSNews.com and CBS News.

While the Justice Department must be delighted that a capital defendant would confess to a crime in open court, Moussaoui's theatrics and obvious confusion about legal standards and procedures raise new questions about his competency to make a plea that will stand up on appeal. And while investigators must be enticed by Moussaoui's claim to know all there is to know about the Sept. 11 terror operation, they had better be careful for what they wish for.

If the feds aren't careful, Moussaoui may rip the whole thing apart next week by earnestly pleading guilty to crimes for which he has not been charged. As CBS News correspondent Jim Stewart reported weeks ago, some U.S. officials now believe that Moussaoui was not the so-called "20th hijacker" from September 11th, as the indictment all but alleges, but was actually going to be involved in a subsequent terror attack involving airplanes. If that's true, and if Moussaoui says so in open court, the government will be in big trouble legally and politically.

Prosecutors aren't supposed to proceed to trial with cases when they know or have reason to know the evidence doesn't support the charges in the indictment. What they are supposed to do is either drop the charges altogether or alter them through revised indictments so that they fit the relevant facts.

There is a continuing obligation, then, on the part of prosecutors to ensure that the facts and the law match in a criminal case. If prosecutors haven't met that continuing obligation for any reason it's a potentially enormous problem for them going beyond the question of his guilt or innocence.

If Moussaoui really wasn't part of the September hijacking team, for example, it's hard to see how the feds can seek the death penalty against him. If he merely conspired to commit a crime that never occurred and never harmed anyone, and if he was in jail at the time of the Sept. 11 attacks to boot, how in the world will prosecutors with a straight face be able to push for a death sentence? And why in the world would any judge permit such a sentence to be carried out?

It's also hard in that instance to see how the administration in general, and Attorney General John Ashcroft in particular, can avoid looking foolish. Getting the right guy for the wrong crime isn't what the legal war on terror is supposed to be about. At best, it's embarrassing. At worst, it's unethical and even illegal.

It's hard to know where this courtroom circus heads next. In light of Moussaoui's actions over the past few months, not just his bizarre behavior in court, but also his zany, hand-written motions, U.S. District Judge Leonie M. Brinkema no doubt is reconsidering her decision to allow him to represent himself. And now that the stakes are about as high as the are likely to get, she may feel obligated morally, if not legally, to at least try to get Moussaoui before court-appointed psychiatrists to determine whether he is no longer competent to represent himself or stand trial.

That's one scenario that could flow from Thursday's dog-and-pony show. And if it happens, there won't be any more talk of a plea or a plea deal for a while. If Moussaoui is deemed incompetent to stand trial, the clock will stop on his trial for an indefinite period.

Another scenario is a plea deal akin to the one that shocked in the John Walker Lindh case earlier this week. Moussaoui just about telegraphed his interest in a deal when he told the judge and everyone else in the courtroom Thursday that he has information to share about the September attacks and that he'd be interested in sparing his own life. Prosecutors, for the reasons outlined above, might have plenty of incentive right now to get this case over with as quickly as possible, especially if it means turning Moussaoui into Exhibit A in a future terror case against an as yet unnamed defendant.

If the two sides somehow can get together, a big if since Moussaoui isn't keen on meeting even with his own attorneys, perhaps they can work out terms that get around the question of which conspiracy Moussaoui actually belonged in -- the Sept. 11 one or one planning a subsequent attack. After all, these U.S. officials who now suggest the indictment is wrong may be wrong themselves. Just as the Lindh case presented legal and factual wildcards that prompted the Justice Department to agree to a deal on Monday, the Moussaoui case could now go off in so many different directions that a life sentence for the talkative Moussaoui without the possibility of parole may make sense for the government.

There is a third option. Judge Brinkema doesn't look further into Moussaoui's competence and allows him to change his plea next week. If that happens, and if prosecutors don't drop their push for the death penalty, a special sentencing jury would have to be empanelled to determine whether Moussaoui ought to get life or death for his admitted crimes. If that happens, I don't hold out much hope for a fellow who admitted in front of the world to being part of al Qaeda while pledging his allegiance to Osama bin Laden. Is Moussaoui crazy? Or crazy like a fox? The answer is coming sooner than any of us thought it would.

By Andrew Cohen