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Slate's Jurisprudence: Sentencing Moussaoui

NOAH ADAMS, host:

Today is the first full day of testimony in the sentencing trial of Zacarias Moussaoui. Prosecutors are seeking the death penalty against the confessed terrorist conspirator. He willingly admits he was an al-Qaida member, loyal to Osama bin Laden, although he denies any connection to the 9/11 attacks. The government must prove a connection to win a death sentence. Joining us now to talk about the case is Dahlia Lithwick, legal analyst for the online magazine Slate, and for DAY TO DAY.

Dahlia, if Moussaoui already pleaded guilty, why is there a trial complete with the opening statement, the evidence, and the witnesses?

Ms. DAHLIA LITHWICK (Legal Analyst, Slate Magazine): Well, essentially, that entire trial that would've been at the guilt phase, has now been moved over the penalty phase. Essentially, Moussaoui, and let's remember, he had no attorney at the time, pled guilty to, basically, being a member of al-Qaida, and coming to this country to kill folks, but he thought, I think, cleverly, that he was going to spare himself the death penalty, because there was no proof that he was involved in the 9/11 plot.

Now, that's exactly what the prosecutors are going to turn around and use against him. They're going to try to say, in fact, he was involved in that plot. So, all we have now is a penalty phase. All we have is a determination of first part, did he cause these deaths? Second part, the jury's going to weigh aggravating versus mitigating factors, and determine if the aggravating factors outweigh the mitigating factors, will he die? And that's what we're doing. But we're having a whole mini-trial in order to determine those things.

ADAMS: At the courthouse yesterday in Alexandria, Virginia, the prosecution made the opening statement. What is the argument that they made for why Moussaoui deserves the death penalty?

Ms. LITHWICK: Well, essentially, Noah, they're going to argue sort of a negative. They're arguing a hypothetical. They're going to go back and reconstruct the 9/11 events, and say he was, essentially, a linchpin if he had confessed. If he had told the FBI what he knew, they may have been able to stave off the attacks, bearing in mind that he was in jail in Minnesota on the day of 9/11. They're going to go back and sort of reconstruct the story and say, if he had fully confessed, they would have beefed up security on airplanes. They might have found some of the hijackers. They've would've known that knives were going to be involved. In effect, they're saying but for Moussaoui lack of a confession, the government was not able to solve this crime before it happened.

ADAMS: And what is going to be the response, then, for the defense?

Ms. LITHWICK: They're essentially going to say just that--that the prosecution is trying to prove a negative, prove an impossibility. That the U.S. Government already knew so much before 9/11 about the possibility of attacks. They knew about two of the hijackers, and yet they were on no no-fly lists. They knew that this was coming, and yet, according to the 9/11 Commission, they just bungled it. So, why is it that this tiny, infinitesimal tip that Moussaoui may have been able to provide was going to somehow lead to brilliant, brilliant unraveling of the entire plan in stopping it? It just really does string credulity, and that's the defense. That, plus they're going to argue that he's basically crazy.

ADAMS: He has been indeed quite unstable--notoriously so. He's been argumentative and disrespectful throughout the court proceedings. What's his behavior pattern now that he's sitting in front of a jury?

Ms. LITHWICK: He's sitting in front of a jury, and in sitting in front of the families of victims, and I think that may be playing a part, too, but very, very quiet yesterday. A different Moussaoui from the one we've seen. Just sat there stroking his beard, listening. At one point, he did say, and I think it goes to the sort of centrality of the weirdness of this case against him. He said to his attorneys, quote, "All of your stories, all of your American creations. They have nothing to do with me."

In a strange sense, for all his nuttiness, he seems to understand that the story he's being woven into really is not one in which he is a central player.

ADAMS: Opinion and analysis from Dahlia Lithwick. She covers the courts for the online magazine Slate and for DAY TO DAY. Thank you, Dahlia.

Ms. LITHWICK: My pleasure. Transcript provided by NPR, Copyright NPR.

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