by TChris

John Farmer, the former attorney general of New Jersey and a death penalty supporter, writes about the absurdity of the government's efforts to put Zacarias Moussaoui to death.

Through a perverse confluence, Mr. Moussaoui's interest in becoming something in death that he never was in life -- important -- has combined with the government's interest in executing someone for the 9/11 attacks. The likely result is an odd form of assisted suicide, in which Mr. Moussaoui will claim martyrdom as he is executed, and the United States will claim that the rule of law has been vindicated by bringing a terrorist to justice for 9/11.

Farmer reminds us that "Atrocities cry out not for vengeance, but for justice." The government's unjust quest to kill Moussaoui, at best "a fringe character," shouldn't distract from the larger issues arising out of the administration's war on terror:

For those that followed the intensive TalkLeft coverage of the first phase of Moussaoui's death penalty trial, and the proceedings leading up to it, you are probably wondering why there has been no coverage of today's proceedings in Phase Two of the death trial.

The short answer is: I have no interest in publicizing or endorsing the Government's victim impact testimony. Also, for me, as a member of Timothy McVeigh's defense team, it's somewhat of a "deja-vu , the unfairness of which I don't care to experience again in my lifetime.

The death case against Moussaoui is a fraud. Giuliani is a joke. Moussaoui may be a demented, blind follower of al-Qaeda but in my view he had no role in 9/11, let alone one that warrants the death penalty. A civilized society does not kill, let alone execute a person for their unconsummated fantasies.

Moussaoui coverage on TalkLeft will resume, if at all, when the defense begins presenting evidence to spare his life.

The jury verdict is in. Moussauoui has been found eligible for the death penalty. The jury found his lies to the FBI agents were directly responsible for at least one death in the 9/11 attacks. The jury was unanimous in its findings.

Moussaoui's response:

"You'll never get my blood, God curse you all."

The jury will now decide whether he lives or dies. They will hear victim impact testimony from the survivors of those who died.

The UK papers get it right: Moussaoui was a hanger-on, a bumbling holy warrior, who was not connected to 9/11. Neither was Richard Reid.

The Times Online:

The notion that Moussaoui and Reid were central to the 9/11 conspiracy -- and had been entrusted with the task of destroying the White House -- was "pretty fantastical", one Washington official said. "If there had ever been any evidence that Reid was in any way connected to this, the Feds would be all over him," the official added. Another source said there were no plans to interview Reid about the allegations.

The jurors have recessed for the weekend. There's no verdict and there were no questions today. They've only been deliberating 12.5 hours total, so this is not unusual.

Update: I am still not finding the final jury instructions. The Court's website has only those proposed by both sides, and objections each filed to the other's submissions.

Even if the instructions were delivered orally by the Judge, you would think at least one news outlet who purchased the trial transcripts from Exemplaris would post them on their website. If any reporters out there have the transcript of closing arguments and jury instructions, please don't hesitate to e-mail them to me.

A criminal probe is underway in the Eastern District of Pennsylvania, where Carla Martin was licensed to practice law, pertaining to her unauthorized communications with FAA witnesses in the Zacarias Moussaoui trial:

Meanwhile, federal prosecutors in Philadelphia are investigating a government lawyer who nearly derailed Moussaoui's sentencing trial by coaching witnesses and lying to his defense attorneys. The criminal investigation of Transportation Security Administration lawyer Carla J. Martin was revealed in the recently unsealed transcript of a closed March 21 hearing in the Moussaoui case.

At that hearing, Brinkema disclosed that she had been "advised by the U.S. Attorney's office that there may very well be a prosecution of her, at least they're looking at the possibility." Rob Spencer, the lead prosecutor in Moussaoui's case, said the matter was referred to the Eastern District of Pennsylvania, where Martin is a member of the bar. Prosecutors in Alexandria decided to take no part in the investigation.

Update: Cryptome has the transcript of the March 14 hearing (html) where Martin was present and the Judge said it was one of the most egregious violations she had seen as a judge. There's lots of good stuff in the transcript.

The jury did not reach a verdict today in the Zacarias Moussaoui trial. They did ask for a definition of "weapons of mass destruction" and were told it could include "planes, used as missiles."

The verdict form is now available here. (pdf). In order for Moussaoui to be eligible for the death penalty, it requires the jury to find,

(b) the defendant intentionally participated in an act, i.e. lying to federal agents on August 16-17, 2001

© the defendant participated in the act, i.e. lying to federal agents on August 16-17, 2001, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense

d) at least one victim died on September 11, 2001, as a direct result of the defendant's act, i.e. the defendant's lies to federal agents on August 16-17, 2001

This seems to require an affirmative act of lying -- as opposed to concealing information. The jury instructions are not yet online. It will be interesting to see if the word "lying" is defined and if the definition includes or excludes omissions.

The defense had proposed this verdict form:

USA Today has this recap of the Government's closing argument.

"Zacarias Moussaoui came to this country to kill as many Americans as he could," Raskin said. "He was supposed to fly the fifth plane into the White House. Instead he killed people by lying and concealing the plot...that resulted in the worst terrorist attack in the country's history."

Since the prosecutor was allowed to say "lying and concealing", I take it the defense lost on its argument to the Judge that the two are different and the Government should only be allowed to get the death penalty if it shows Moussaoui's lies contributed to a death on 9/11. He had a 5th Amendment right not to say anything, so why are prosecutors being allowed to argue his silence makes him guilty? More on this here.

Update: The defense argued Moussoui is a liar:

The Department of Justice has issued a press release stating that Richard Convertino, the lead prosecutor in the failed Detroit terrorism trial, who later claimed to be a whistleblower and sued Ashcroft, has been indicted.

A former federal prosecutor and a Department of State special agent were indicted by a federal grand jury today in Detroit on charges of conspiracy, obstruction of justice and making false declarations in the 2003 terrorism trial United States v. Koubriti in the Eastern District of Michigan, the Department of Justice announced today.

Former Assistant U.S. Attorney Richard G. Convertino, 45, of Canton, Mich., and Regional Security Officer Harry Raymond Smith III, 49, were named in the indictment returned by a federal grand jury in Detroit. The grand jury also charged Convertino with obstruction of justice in a second criminal case in the Eastern District of Michigan described only as United States v. John Doe.

The Judge in the Zacarias Moussaoui trial has barred the defense from playing the martyr card in its closing argument:

The latest strange turn in Moussaoui's behavior could bolster the defense's claims that he would say anything to achieve martyrdom. Defense attorney Edward MacMahon told jurors in opening remarks that Moussaoui can only achieve that now if they vote to execute him. "Don't make him a hero," MacMahon pleaded.

Prosecutors got Brinkema to bar a repeat of that plea as an emotional rather than legal argument. But she agreed to allow MacMahon to argue Wednesday that evidence of a desire for martyrdom calls into question the credibility of Moussaoui's confession to being a part of Sept. 11.

I think she's wrong and that it's entirely proper for the defense to tell the jury in closing arguments that Moussaoui wants to be a martyr. Similar arguments were made in the 2001 Embassy Bombers' trial and were among the reasons the jury returned a life sentence. The lead prosecutor in the case, by the way, was Patrick Fitzgerald.

The defense finished its case in the Zacarias Moussaoui trial today. Closing arguments are set for tomorrow afternoon. The bizarreness continued this afternoon. During its rebuttal case, the prosecution introduced testimony about a meeting between the FBI and Moussaoui at which he offered to testify against himself. Shorter version: Moussaoui offered to help them put him to death.

Confessed al Qaeda conspirator Zacarias Moussaoui told prosecutors days before his death-penalty trial that he would "testify against himself" if he could have better jail accommodations before he is executed, an FBI agent testified Tuesday.

Special Agent Jim Fitzgerald, who joined prosecutors and a defense lawyer at the Feb. 2 evening meeting in the law library at the city jail, said Moussaoui remarked that he "did not want to spend the rest of his life in a Colorado prison."

He said Moussaoui volunteered to admit to being the intended pilot of a fifth plane in the Sept. 11 plot as part of a deal, but never asked the government to drop the death penalty. Fitzgerald said the talks fell apart when prosecutors insisted that Moussaoui agree to give his full cooperation, including testifying against other al Qaeda captives.

The L.A. Times has an editorial today, Don't Kill Moussaoui. I couldn't say it any better, so I won't try, I'll just quote:

The 19 hijackers are dead. But there is still Moussaoui. He knew. He helped. Shouldn't he die?

No, he should not. Many committed opponents of the death penalty want to carve out exceptions for mass murderers or those who attack or betray the nation writ large, such as Timothy McVeigh. But if you believe, as does this page, that the death penalty debases our society, the principle becomes all the more important when it is most tempting to ignore. But for those who don't share that conviction, there are some more practical arguments.