The 'Enemy' Delivers Himself

Attorney Andrew Cohen analyzes legal issues for CBS News and

They swallowed their skepticism and took him at his word, these jurors, and at the same time they gave him what he wants. They believed the testimony of a despicable man whom his own attorneys call a "homicidal liar" and in doing so brought a suicidal jihadist much closer to the virgin-laden paradise he thinks is waiting for him after he gets lethally injected at the federal penitentiary in Terre Haute, Indiana.

So now Zacarias Moussaoui, perhaps the most inept terrorist Al Qaeda ever has produced, is a couple of weeks or so away from hearing that he is on his way to death row. That result surely is ordained given the enormity of the crime with which Moussaoui now has been legally linked and the relative paucity of any "mitigating" factors that would tend to make jurors sympathetic to the man who told them to their faces in court last Monday that they are his sworn enemies.

By finding that the confessed terror conspirator is eligible for the death penalty, the federal jury of nine men and three women declared that Moussaoui knew enough about the Sept. 11 plot to have helped government officials avoid it had he just told the truth when arrested on immigration charges in August 2001. By endorsing the link between a terror trainee who never contacted any of the 19 actual Sept. 11 hijackers and the deadliest crime in American history, the panel rejected defense claims that our government was so blind, deaf and dumb before Sept. 11 that it would not have been able to properly process information from Moussaoui no matter how dramatic his story might have been back then.

Prosecutors no doubt will spin this verdict as a victory and on paper it looks that way. After all, they now can boast that they "won" the most important battle yet in the only Sept. 11-related criminal trial we are ever likely to see. By inflating Moussaoui's status to that of a cog in the Sept. 11 terror machine, and therefore conflating his malicious intent with those of the real hijackers, the government was able, at least for now, to cover the fact that there was no good evidence establishing that Moussaoui caused death on Sept. 11 when he failed to tell federal agents the truth about his intentions one month earlier. Let's be clear: the government's death penalty pitch was built on shifting sands, on whispers, hunches and guesses. If ever there were a prosecution case to be labeled "woulda, coulda, and shoulda" this would have been it.

That's why the feds ought to feel more lucky than proud over how the case, and the sentencing trial, has played out over the course of four-plus years. With a level of irony (or poetic justice, depending upon your point of view) that almost defies belief, the feds owe this verdict, and the continuing hopes for an ultimate death sentence, to one man and one man only. Every time prosecutors seemed doomed — and it happened more times than even they would care to admit — they were bailed out by none other than Moussaoui himself.

That's right. The guy who says he hates America helped America get this verdict against him more than anyone or anything else. He helped the government first by trying to represent himself, with disastrous effects, several years ago. Then he helped the government he hates by trying to plead guilty a few years ago, only to have U.S. District Judge Leonie M. Brinkema reject his plea request when he refused to agree that he was part of the Sept. 11 plot. Then he actually pleaded guilty, last year, and thereby saved the government the arduous task of proving even more than they had to prove in this case. And, when it became clear a few weeks ago that this tactic wasn't working, he decided to try something else.

So he helped prosecutors most vividly just last Monday by rescuing their dismal case against him. He sat in the witness box and told jurors that he was heavily involved in the Sept. 11 plot and gleefully lied to cover it up. There is no way this verdict would have come down the way it did, or at least as quickly as it did, without Moussaoui's own incriminating statements made as a witness. He tied up the case with a neat little bow so that jurors could simply hang it all on him. Even the judge herself commented on the "dramatic" change in the dynamic of the case after Moussoaui testified.

That testimony, and it alone, gave jurors all they felt they needed — in law, fact and conscience — to decide that this death sentencing proceeding can and should continue. Moussaoui's own words gave the panel an excuse, you might say, to reach a conclusion they might have wanted to reach anyway, but probably couldn't bring themselves to reach, after sorting through the detritus of the government's evidence. Often in these cases, after all the complexity thrown at them, jurors choose the simplest explanation for the evidence they've seen. Moussaoui's latest "confession," contrary though it may be to all of his previous confessions, offered jurors that simple path and they have chosen it.

So now the only way Moussaoui now avoids the death penalty is if jurors disregard the law about "aggravating" and "mitigating" factors during the next phase of the sentencing trial and simply decide that the best way to punish the guy is not to grant him martrydom but instead to make him rot in the Supermax prison in Florence, Colo. for the rest of his days. But if they were going to take that route you'd think they'd have simply ended the trial now and not forced themselves into a few more weeks of testimony, which will be as emotionally devastating as anything ever offered in any courtroom ever.

No, I think these jurors have decided that if Moussaoui wants to leave this world, whether he is lying or not, or whether they care or not, that they are not going to get into his way. And if he gets his way, and ultimately makes it to Terre Haute, it'll be about the first time in his miserable life that he hasn't failed.

By Andrew Cohen