Once Bitten, Twice Shy
Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
Since his capture in Minnesota in August 2001, confessed al Qaeda foot soldier Zacarias Moussaoui has made a cottage industry out of mocking the American justice system. He has taunted prosecutors, the judge and his own lawyers. He has railed against journalists, those fighting for his rights even as a hated terrorist, and just about anyone and everyone else who has tracked onto his radar screen. Three years ago, he said he wanted to plead guilty and then changed his mind in court. And now, the Washington Post reports, he's ready to do it again.
I will believe that Moussaoui has viably pleaded guilty to a role in the Sept. 11, 2001 terror attacks when I hear U.S. District Judge Leonie M. Brinkema's words saying so. I will believe it when I see and hear Moussaoui's earnest and harried attorney, federal public defender Frank Dunham, hold a news conference outside of the federal courthouse in Alexandria, Va. But I do not expect to see Dunham in front of the cameras or read Judge Brinkema's order any time soon. There are so many hurdles between now and the acceptance of a guilty plea that Moussaoui ought to feel today like his unwitting look-alike, the great runner Edwin Moses.
Let's assume first that Moussaoui genuinely wants to plead guilty. This is a significant but not necessarily solid assumption. The Algerian-born Osama-devotee three years ago also said he would plead guilty but then backed out, literally at the last minute, when he disagreed in court with federal prosecutors and Judge Brinkema over precisely what terror conspiracy he was a part of. At the time, Moussaoui also was unwilling to accept any sort of plea deal that could and would result in the possibility of a death sentence. Now, reportedly, he has dropped that condition. That's fishy to me. Very fishy. In any event, we ought to know rather soon if Moussaoui is equally unserious now about a plea as he was in 2002. The Post reports he is scheduled to meet with Judge Brinkema this week to discuss its possibilities.
At that meeting the judge is expected to begin to evaluate Moussaoui's mental competency to formalize such a monumental decision. This is the first big hurdle to any sort of case-ending deal. Moussaoui's attorneys, who object to the plea because they do not believe Moussaoui is legally competent, already have peppered the judge with the names of mental-health experts who might be called to testify before or during the trial. And the judge has to satisfy herself that Moussaoui understands the charges against him and can assist in his own defense. Her analysis will be complicated by the fact that Moussaoui apparently is interested and willing to cut a deal that still could see him executed a few years from now.
What easily may halt Judge Brinkema in her tracks is Moussaoui's lengthy and documented record of irrationality over the past few years — his bizarre letters, his diatribes, his dubious relationship with his court-appointed counsel, his change-of-heart plea a few years ago. It would be different if prosecutors now stepped forward and announced that they would give Moussaoui the sort of sweetheart deal they gave killer Eric Robert Rudolph last week, a deal that takes the death penalty off the table. But in the absence of such a reasonable gesture, and since a plea here almost certainly will mean a death sentence for Moussaoui, at a minimum the judge is likely to order Moussaoui to be evaluated by court-appointed mental health experts, a scenario that Moussaoui hasn't exactly embraced over the years.
Will the judge offer the defendant a deal of her own? Submit to a mental-health evaluation or be ruled incompetent to enter into a plea deal? That would be a reasonable guess and, if it takes place, look for any deal to be on hold for months pending that competency review. Oh, to be a fly on the wall when Moussaoui meets his self-appointed nemesis, the judge, who has shown more patience with him than any criminal defendant has ever had a right to expect. And, oh, to be the mental health specialist who gets to evaluate Moussaoui, a walking, breathing, yapping treasure trove of neuroses and psychoses and many other "oses" that I cannot even spell.
That's the first big hurdle. Now let's assume further that Moussaoui passes his competency test. Next comes the other big hurdle — the plea machination itself. Three years ago, Moussaoui adamantly denied that he was a part of the 9/11 conspiracy even as he willingly admitted to being part of al Qaeda. He maintained then that he was part of a future terror plot. The government that seeks to prosecute him long has conceded that he is not, as previously advertised, the "20th hijacker" who was supposed to be on Flight 93. So why should anyone believe now that Moussaoui is telling the truth? And will he be willing and able now to admit to the specific facts listed in the charges against him?
This is the point in the drama where the plea deal a few years ago blew up. It is equally precarious now. If Moussaoui is the right guy charged with the wrong crimes, a plea deal may never work out unless and until prosecutors revise the charges against him to meet the facts to which he is willing to plead. In other words, if Moussaoui truly was part of a post-9/11 terror plot, as he claims, he may be legally unable to plead guilty to being part of the 9/11 conspiracy, as the government charges. Certainly Judge Brinkema is going to be as skeptical as any judge ever will be when going through the paces of the deal.
I do not mean to discount entirely the possibility that Moussaoui has finally gotten sick of the relative monotony he endures in a federal jail. His lawyers lost a big round in his legal battle a few weeks ago when the United States Supreme Court refused to intercede in the case pending trial. He surely must know now about the Rudolph deal. Finally, a firm trial date in the case is about as close as one has ever been — the lawyers want the judge to begin jury selection in late January 2006. But these developments seem like penny-ante things for a guy who still believes in the supremacy of al Qaeda's cause. If Moussaoui wanted to martyr himself by submitting to a federal execution why hasn't he done that before now? Again, fishy. Very fishy.
There is an "out" here for all sides. Moussaoui could make an "offer of proof" to prosecutors in which he details everything he knows about al Qaeda and his role in whatever plot he was involved in. In exchange, the feds could agree to revise the charges against him to match the undisputed facts and, if those facts do not touch directly upon Sept. 11, 2001, the feds could further agree to take the death penalty off the table. If that were to occur, a case that long ago should have ended finally would. In the meantime, we are left to wonder what Moussaoui has up his angry sleeve; whether he is jerking us around this time as he has in the past. Disdain for a government, and a people, and a way of life, and a justice system comes in many forms and I'm not aware of many people who have as much disdain for America as Zacarias Moussaoui.
By Andrew Cohen