Pretrial Tactics In Terror Case

CBSNews.com Legal Analyst Andrew Cohen on what to look for in the months leading up to Zacarias Moussaoui's conspiracy trial.

The start date is earlier than the defense wanted -- they were shooting for February 2003 -- but isn't all that early given this particular court's "rocket-docket" scheduling procedure which in typical, routine cases ensures that a case goes to trial within 70 days of the arraignment. Given those local rules, then, the defense probably shouldn't be too upset with an October date and, of course, Moussaoui's attorneys always can ask the judge to delay the trial a bit should anything occur between now and then which further complicates an already complex case.

If the trial date seems like a reasonable one given all the competing interests at work, the time the judge has allotted for jury selection -- two weeks -- seems way too short if jury candidates are, as I suspect, going to be interviewed one-by-one by prosecutors, defense attorneys and the judge. In the Oklahoma City bombing trials of Timothy McVeigh and Terry Nichols, for example, jury selection took about one month each, and no one was complaining about how thorough the jury vetting process was during either of those two contests.

It simply takes a long time to bring into court an individual jury candidate and ask them many questions designed to elicit their biases and prejudices and the like. And that task is further complicated here because this, after all, is a death penalty case, requiring its own special set of voir dire questions. Not only do jurors have to be asked about what they know or don't know about Moussaoui but they also have to be willing in certain circumstances to impose the death penalty without being particularly eager to do so. It is a frightening fragile calculus which usually takes hours-per-jury-candidate to figure out.

So one month or so is probably how long it will and should take to select a jury in the Moussaoui case (how does a Halloween start date sound to you?) since it is critically important that enough questions are asked of enough potential jurors to ensure that the defendant gets even the semblance of the fair trial to which he is guaranteed by the Constitution. In the meantime, look for the motions to fly fast and furious for the next few months. The defense, in particular, will be filing them double-time since they have been disadvantaged by the earlier trial date. They've barely ave had time to talk with their client much less begin the intense investigation they'll need to undertake in order to adequately represent their client.

Look for defense motions about the material witnesses still held by the government. The defense team wants information about them to help prepare their defense. Look for other discovery-related motions whereby Moussaoui's attorneys try to force the government to fork over documents which the feds don't want to fork over.

There will likely be many motions and briefs filed on the issue of whether the death penalty is appropriate given the allegations contained in the indictment. There will motions and hearings evidentiary issues -- one side will want something or someone introduced into evidence at trial and the other side will object. In short, everyone involved has an awful lot of work to do before the end of September.

Meanwhile, you've probably already heard that Moussaoui himself didn't enter his own plea; that he said he would not enter a plea at all, at which point the judge entered a "not-guilty" plea on his behalf. This happens from time to time when a defendant doesn't for one reason or another want to cooperate or play along within the confines of the criminal justice system. Judges are pretty much used to entering "not guilty" pleas on behalf of these types of defendants. Not guilty, remember, is the default setting for the whole system -- and there is no great legal significance to a plea being entered in that fashion.

That doesn't mean that Moussaoui's actions in court Wednesday aren't interesting. They are. They suggest that he may not be interested in cooperating with his own attorneys -- that happens sometimes, too -- and if that is the case it will be even tougher for the defense team to come up with a defense which gives their client a fighting chance against the government. It also poses potential problems for the judge down the road if Moussaoui isn't willing to behave appropriately in court when a jury is being selected or once one has been seated. It's one of many interesting sidebars to watch as the case rolls on this year to its climax this fall.

BY ANDREW COHEN
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