For 9/11 Lies, Must He Die?

Dana Verkouteren's sketch of Zacarias Moussaoui, foreground, listening as Edward MacMahon, at the podium, gives his closing arguments to the jury in the penalty phase of the Sept. 11 terror attacks trial, March 29, 2006.
AP/Dana Verkouteren
Attorney Andrew Cohen analyzes legal issues for CBS News and

Make sure you pay attention and keep this straight, because so long as we both shall live, we are never, ever going to see a constellation like this again in a high profile death penalty case.

Put another way, the Sept. 11 trial of Zacarias Moussaoui - the most important capital case of its time, one that's been surreal and ironic from the start - reached new heights (or depths, depending upon your point of view) of the absurd Wednesday afternoon here in federal court in Alexandria, Virginia.

In a trial in which they seek the death penalty against a man solely for lying, federal prosecutors have asked jurors to believe that Zacarias Moussaoui was telling the truth when he said Monday that he was a key component of the plot for the Sept. 11, 2001, terror attacks.

Defense attorneys, meanwhile, told those same jurors that their client, whose life they have doggedly fought to spare, is a "homicidal liar" who is still scheming and plotting with malice against America and all it stands for, including the very system of justice which has brought us all to this time and place.

For long stretches during closing arguments, therefore, it was difficult to tell for sure which attorneys were arguing for which side. The feds, who must establish as a matter of law that Moussaoui lied to authorities when he was arrested in August 2001, now are relying heavily upon his candor as a surprise witness to prove that he is eligible for the death penalty in this case.

The defense, which told jurors all along that Moussaoui is - as defense attorney Edward MacMahon put it Wednesday, a "hanger-on" - is now asking jurors to go tough on him and not give him the satisfaction he seeks from dying as a martyr.

Jurors got their instructions from the judge late Wednesday afternoon. They also should have gotten some Ritalin - so complex are the bank shots, crosscurrents and psychological eddies being offered to them by the lawyers.

Moussaoui, in his own pathetic way, succeeded in tying up the case on appeal for more than four years and now - in just a few weeks on trial - he has proven himself capable of twisting around the lawyers responsible for his fate. It's no wonder that MacMahon, the defense attorney, called the happy but inept warrior "manipulative, and obviously so."

Prosecutor David Raskin started the afternoon's sermons by emphasizing his best evidence — really his only good evidence - the creepy defendant himself, and the jaw-dropping statements that Moussaoui made to jurors earlier in the week.

"Zacarias Moussaoui came to this country to kill as many Americans as he could," Raskin told the jury, adding that "he killed people by lying and concealing" the Sept. 11 plot. Those people would be "alive today," said Raskin, if Moussaoui "had told the truth" when he was arrested in Minnesota on immigration charges on August 16, 2001.

We proved to you, Raskin told the jury, that Moussaoui "lied with lethal intent." But here is where the prosecution seemed to travel to Wonderland.

If Moussaoui so gleefully lied way back when, why should anyone believe he is telling the truth now? If, as Raskin pointed out, al Qaeda training manuals teach wannabe terrorists how to lie to achieve their goals, why should anyone believe that Moussaoui has thrown out the book? Yet that is precisely what Raskin asked jurors to believe when he emphasized the importance of Moussaoui's in-court admissions.

"He is not making this up," Raskin told jurors, just moments after stating that Moussaoui is a master at making "false statements designed to deceive." Trust his allegiance to al Qaeda and the terror plot, he told the panel, even as he reminded them that "al Qaeda teaches people to lie."

Raskin's argument at this point reminded me of an old line that lawyers dream of using but rarely do: 'Were you lying then, or are you lying now?' In a capital case, in which proof beyond a reasonable doubt is the name of the game, can the government win once someone is forced to ask that question of its star witness?

Moussaoui's lies, or his truths, are not in themselves enough to make him eligible for the death penalty. The government must also have proved that people died on Sept. 11 as a result of those lies, and in order to make that case it must have established that the feds would have foiled the plot - if only Moussaoui had been candid when federal agents were querying him about his goal of learning to fly jumbo jets despite being unable to find his way around an airfield.

This is the point that drew the most attention during the course of the trial, and it is the point that brings into play all the incompetence our government displayed in the days before Sept. 11 - when we all cared about was who killed Chandra Levy.

On this point, prosecutors could only say, tepidly, that had Moussaoui told the truth when arrested, "the government would have that valuable information and would have used it to prevent the attacks or at least part of the attacks."