Moussaoui: The Fork In The Road

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

Defense attorneys, meanwhile, begged jurors to channel the better angels of their nature and rebuff the government's attempts to turn their befuddling client into a Middle Eastern poster child for jihad.

Closing arguments in this terror conspiracy trial were as discordant as was the trial itself.

The defense says Moussaoui should live because he says he wants to die. The feds say that Moussaoui should die because he says he wants to live. The defense asked jurors not to become instruments of Moussaoui's plan to achieve martyrdom. Prosecutors asked jurors not to go all wobbly on their under-oath promise to recommend a death sentence if the facts warranted it.

Prosecutors pitched rage and showed jurors pictures of body parts. The defense pitched therapy and read jurors a children's book. The feds called Moussaoui "pure evil" — said he's killed before "and would kill again in prison"— and called the defense case a bunch of "psycho hogwash."

Moussaoui's lawyer told jurors that his client is trying to "bait" them into recommending the death penalty and that the government has falsely held out his death as a cure for the pain held by many 9-11 victims. There just wasn't a whole lot of love in the room.

When you match a monumental crime with an historic trial, and when you match both with a small man not worthy of the attention, you get the surrealism qua farce that soaked through the walls here in federal court in Alexandria, Virginia.

There was prosecutor David Novak, spitting mad, telling jurors in one breath that those who kill in the name of God (he had, of course, Moussaoui in mind) warrant a special kind of shame while in the next breath urging jurors to recommend a death sentence against the defendant in the name of "righteousness."

And there were defense attorneys, who didn't have much else to say to jurors, reminding the panel about Moussaoui's poor childhood, as if his travails as a poor, abused Muslim boy growing up with an awful family would have any particular resonance with a jury of folks who live in the shadow of the Pentagon and who are being required to sign a special certification on the verdict form that confirms they have not condemned Moussaoui on the basis of his race or religion.

There were prosecutors, elevating Moussaoui to the status of mass murderer even though he was sitting in a jail cell in Minnesota on 9-11. There were the feds, comparing Moussaoui to Osama bin Laden himself and claiming that both were "loving every minute" of the carnage on 9-11.

There was the government attorney, telling jurors that Moussaoui spoke the truth when he incriminated himself but that Moussaoui's terror boss, Khalid Sheikh Mohammed, could not be trusted when he said that Moussaoui was never part of the hijack plot. Some terrorists make credible witnesses but others, apparently, do not.

And there were the defense attorneys, struggling for material to get through even a short closing argument, who were forced to talk at great length to the jury about Moussaoui's alleged mental health problems.

This is a case about the worst terrorism act in our nation's history.

No one, including jurors, cares about expert witnesses at trial fighting over "reasonable standards of care" when it comes to diagnosing schizophrenia. Mental illness might explain why a woman like Andrea Yates murders her children. It doesn't really explain why a young man joins up with al Qaeda.

There were prosecutors, who finally acknowledged the central false premise that has driven this entire case into absurdity and, all too often, shame. "Does it really matter," asked prosecutor Novak, whether Moussaoui was supposed to be part of the 9-11 wave of hijackers or a second wave?"

It may not matter to Novak or to the federal government. It may not matter to many survivors of 9-11 and to the family members of victims. It may not even matter to jurors — although one would hope that they would be smarter than that.

But it matters to posterity, to history, and to the nooks and crannies of the law whether Moussaoui was part of the 9-11 plot or some future plot.

Both closing arguments purposely missed the point of this trial.

Prosecutors delivered the closing argument they've dreamed of making against Osama bin Laden or the true culprits of 9-11. Novak in particular was practically hysterical when he rhetorically asked how many people had to die in a crime before the death penalty was appropriate; how many rescuers had to be killed; how heinous the crime needed to be; how much planning and premeditation was necessary.

"This defendant is evil and he represents everything evil from that day," Novak said about a guy who was such a failure as a terrorist that he got himself arrested before he ever had a chance to get near a real cockpit, much less any of the actual hijackers.

And defense attorneys missed the point, too, although in a more subtle way. There is no legitimate legal defense for their client: no possible legal strategy that can overcome the fact that Moussaoui himself has had the ability, which he has demonstrated repeatedly, to eviscerate all of the legal underpinnings of his defense.

There is no there there and there never will be, no matter how many stoic defense attorneys ask jurors to take the high road and sentence Moussaoui to a life of solitude rather than an afterlife of infamy.

No one can dispute the fact that giving Moussaoui the death penalty won't erase the pain of the Sept. 11 terror attacks. But it is also indisputable that plenty of people wouldn't mind seeing it happen anyway.

The lawyers used a lot of words and said a lot of things in their last chance to persuade the jury. Some of what they said was poignant. Some of it was relevant. Some of it was even accurate. And now jurors have the case.

"You will now have to decide where the truth lies," U.S. District Judge Leonie M. Brinkema told the panel just before deliberations began.

The easy choice here, for them, is the wrong one. And the right choice here is the hard one.

Which kind of jurors we have — which kind of justice system we have, indeed, which kind of country we have — will depend a lot upon what the judge called a "unique, individualized and moral judgment" each juror will have to make.
By Andrew Cohen