[Deathpenalty]death penalty news----IND., MD., CALIF., WIS., VA.
rhalperi at mail.smu.edu
Tue Mar 7 14:02:33 CST 2006
Prosecutors weigh death penalty----Simon Rios is charged with rape and
murder of a 10-year-old at a rural Delaware County gravel pit.
In Muncie, Delaware County prosecutors are considering pursuing the death
penalty in the case of a Fort Wayne man accused of abducting a 10-year-old
girl and then raping and killing her Dec. 8 in a rural Albany gravel pit.
On his 34th birthday, Simon Rios was formally charged in Delaware County
with child molestation and rape, both class A felonies, and murder in
connection with the death of Alejandra Gutierrez.
Rios is in the Allen County Jail, awaiting trial on charges that he
murdered his wife and 3 daughters 5 days after abducting Gutierrez.
He will be transported to Delaware County sometime in the near future for
a March 14 arraignment in Circuit Court 1.
"We weren't in any rush to charge Mr. Rios because of his status in Allen
County," Deputy Prosecutor Mark McKinney said.
McKinney has alleged Rios killed Gutierrez intentionally, therefore
leaving open the possibility of enhancing the murder charge to a capital
Capital murder also means prosecutors could seek life imprisonment without
Prosecutors, however, cannot proceed in capital cases if a court
determines at a pre-trial hearing that the defendant is mentally retarded,
according to Indiana Code.
A probable cause affidavit indicates Rios admitted to the crimes against
Gutierrez in a Dec. 18 police interview and provided authorities with
information about the location of her body.
Rios was a neighbor of Gutierrez and his late daughter was a classmate of
the 10-year-old, authorities determined.
The suspect saw her waiting at a bus stop Dec. 8 after Gutierrez missed
her bus and asked the girl if she needed a ride to school, according to
the probable cause affidavit.
Rios instead drove the girl to a wooded area known as Fowler's Sand and
Gravel, off Black Cemetery Road, where he sexually assaulted her and
killed her, the document said.
Her frozen body was found in that area Dec. 19.
Prosecutors were apparently awaiting autopsy and DNA results before filing
formal criminal charges against Rios.
McKinney did not discuss many details of the case.
"What I can say is that the results of the autopsy confirmed what he told
us in his statement, that the victim had been sexually assaulted,"
Juan Rosales, 17, Fort Wayne, was also identified as a suspect in the
case, but no charges have been filed against the juvenile in Delaware
McKinney would not say much about whether Rosales was involved in the
crimes, noting that the investigation is ongoing.
Rosales was released from custody Monday after admitting he lied to police
investigating the Dec. 13 slaying of Rios's family.
Rosales pleaded guilty to misdemeanor false informing in exchange for his
Court documents state that Rosales told police that he spoke with Rios by
phone the day Rios allegedly murdered his own family.
An investigation, however, determined the conversation never happened.
It is unclear whether the quadruple-murder case in Allen County or the
murder case of Gutierrez in Delaware County will be resolved first.
McKinney said there is "no chance" that the Delaware County Prosecutor's
Office would dismiss the local case as part of a plea agreement or even if
an Allen County jury delivered a capital punishment conviction.
Currently, without considering the possibility of death or
life-without-parole sentences, Rios could face 165 years in prison if
convicted on all counts.
Rios's status as a Mexican immigrant does not affect the ability of
Indiana prosecutors to pursue the death penalty, McKinney said.
His Mexican status would only come into play had Rios fled to Mexico,
where the government will not extradite prisoners facing the death penalty
in the United States.
The last death penalty conviction in Delaware County was Michael Lambert,
who shot and killed Muncie Police officer Gregg Winters in 1990.
Lambert's case is being appealed.
(source: The Star Press)
Duncan Wants Md.'s Death Penalty Law Changed
Maryland's death penalty law needs to change to include "acts of
terrorism," Montgomery County Executive and gubernatorial candidate Doug
Duncan said on WTOP's Ask the Executive program Tuesday.
Duncan's comments come as Montgomery County gets ready to try John Allen
Muhammad for the murders of 6 people killed during a 3-week sniper
shooting spree that paralyzed the region in October 2002. Snipers killed a
total of 10 people, including four in Montgomery County within a 3-hour
span Oct. 3.
Muhammed and accomplice Lee Boyd Malvo, who was 17 at the time of the
shootings, have already been convicted in Virginia. Muhammed received the
death penalty in Virginia, and Malvo is serving life without parole.
"I've never seen a case that calls out for the death penalty more than
this one did," Duncan said on WTOP.
But Montgomery County is not seeking the death penalty when Muhammad goes
on trial in May, in part because Maryland's "triggerman" law requires that
prosecutors show beyond a reasonable doubt the person they are prosecuting
was the triggerman and that 2 or more people were killed in a single
State's Attorney Doug Gansler has said that the county's sniper shootings
would not satisfy the legal definition of a single incident.
"Someone could premeditate and deliberate and then kill a different person
each week for a year and not be subject to the death penalty, yet another
person has a bad day and kills two people at one time and can get the
death penalty. It makes no sense," Gansler tells WTOP.
"This is an act of terrorism -- an act of serial murders -- and I think
the death penalty should apply, and if we need to change state law to make
that happen, then I would be in favor of that happening," Duncan said.
"We need to have the death penalty available for acts of terrorism."
In Maryland, it is rare that the death penalty is imposed.
Malvo is scheduled to be tried in Montgomery County in October.
The 2 men also have been linked to shootings in Alabama, Georgia,
Louisiana and Washington state.
Death penalty is an appropriate punishment
The death penalty is necessary in order for justice to be served.
With the debate about convicted murderer Michael Morales heating up, it
seems appropriate to look at the arguments for abolishing the death
penalty in Lana Yoo's column "As death penalty fades, U.S. should follow
suit" (March 3), as well as the reasons why the death penalty should stay.
Yoo is right: the U.S. is one of the last countries that has the death
penalty. But this does not mean that it is wrong or immoral. The premise
of the death penalty is to deliver a sentence that is equivalent to the
crime committed, no more or less.
There is no contradiction in the death penalty, as Yoo suggests. The
contradiction is when a man kidnaps, rapes and murders a person, like
Morales did to 17-year-old Terri Winchell in a case of premeditated
murder, and is allowed to live.
Murder by definition is the unlawful killing of a human being, especially
with premeditated malice. The death penalty is a legal punishment with no
intent of malice per se (which means it does not intend to produce
The claim made by Yoo that death by lethal injection is inhumane is void
and without merit.
Yoo refers to the Morales case to support this claim. Judge Fogel, who
presided over the case, endorsed administering five grams of sodium
thiopental instead of the 3-drug cocktail typically used in lethal
injections, agreeing with the statement in a court document that, "It is
undisputed that 5 grams of sodium thiopental, properly administered, is a
fatal dose. It also is undisputed that sodium thiopental does not cause
pain; in fact, as a barbiturate, it anesthetizes the person into whom it
Yoo also argued that the death penalty is not an adequate deterrent to
crime. While I agree that it likely isn't, that isn't the intended reason
for it in the first place, and thus not a good reason to abolish it
either. The intent of the death penalty is to deliver the appropriate
sentence for the crime committed. This is a very simple concept.
The idea of the death penalty as a deterrent is foolish and only
misdirects the purpose and intent.
When these murderers are imprisoned, our tax dollars go to supporting
them. Winchell's family members are taxpayers supporting the one who
viciously murdered their daughter by paying to house him in jail. This is
an injustice to the family left behind.
Indeed, taxpayers support criminals on death row who are waiting to be
executed, but at least the loved ones will eventually get closure.
Yoo claims that we don't have any potent moral authority if we stand on
the same side as human rights-violating countries on the issue of capital
punishment. This is another fallacy. The fact that we share a legal
penalty with a country that violates human rights is irrelevant. It
doesn't diminish our human responsibility and moral authority because we
have good reason to maintain the death penalty. How other countries punish
criminals should have no bearing on how we punish our criminals.
As for Morales, we should keep in mind what he did to Winchell, who had
hopes, dreams, and aspirations similar to many of the young women here on
Imagine the horror she felt as he took her against her will, strangled her
with his belt, hit her 23 times in the head with hammer, dragged her face
down on a gravel road across to a vineyard, then proceeded to rape her and
stab her 4 times in the chest.
I know this is graphic. But if you find this as repulsive as I do, the
death penalty must stand. If it doesn't, we are reduced to victims without
(source: The (UCLA) Daily Bruin; Kevin Fickert is a 3rd-year philosophy
O.C. Killer's Sentence Is Overturned----State Supreme Court voids the
death penalty in a 1990 triple murder, saying judge prejudiced the jury.
But the guilty verdicts are affirmed.
The California Supreme Court on Monday overturned the death sentence of a
man who murdered three former co-workers at a Tustin auto parts store,
saying the trial judge prejudiced the jury when he "poked fun" at the
The court voted 5 to 2 to reverse the death sentence of Gregory Allen
Sturm but affirmed the murder convictions. Sturm was 19 when he shot to
death 3 employees at a Super Shops outlet during a 1990 robbery.
During the 1992 penalty phase of the trial, Orange County Superior Court
Judge Donald A. McCartin made inaccurate statements about the case and
belittled defense witnesses, conveying to the jury "the message that the
court was allied with the prosecution," the justices found.
McCartin made his own objections to the defense more than 30 times and
accused the defense lawyer of trying to sneak in improper evidence.
The 1992 death penalty phase trial was Sturm's 2nd - the 1st deadlocked 10
to 2 against execution and in favor of life in prison without parole.
The state attorney general's office, which handles death penalty appeals,
has not decided whether to ask for a rehearing of Sturm's case. If it does
not, the Orange County district attorney will retry the penalty phase and
seek death again, Deputy Dist. Atty. Susan Kang Schroeder said.
"This was an extremely coldblooded type of crime. It merited the death
penalty more than 10 years ago, and it's certainly the type of case we're
seeking the death penalty on today," she said.
Legal experts said the Sturm case was significant because reversals by the
normally conservative state Supreme Court were rare and indicated the
justices were concerned about fairness of procedures surrounding the death
The reversal comes at a time when the U.S. Supreme Court and the state of
California are considering whether lethal injection is more humane than
other methods of execution.
Sturm was high on cocaine Aug. 19, 1990, when he robbed the auto parts
store so he could buy more drugs. Sturm bound Darrell Esgar, 22, Chad
Chadwick, 22, and Russell Williams, 21, and shot them at close range to
eliminate witnesses. He fled with $1,100.
He was convicted of 3 counts of 1st-degree murder and robbery and 1 count
Associate Public Defender William Kelley, Sturm's lawyer, said Monday the
reversal didn't surprise him.
"I predicted it a long time ago," he said.
"It was somebody with a black robe deciding he was going to be a
Kelley had built a defense around the fact that Sturm was abused as a
child and was desperate for drugs when he robbed the store.
But McCartin's actions prejudiced the jury from the start, the Supreme
During jury selection for the second penalty phase trial, McCartin told
prospective panelists that Sturm's premeditation was a "gimme." However,
the trial jury did not return a verdict finding the actions premeditated.
In another instance, the justices found, McCartin remarked that a defense
witness, a clinical psychologist, had a "tendency to add" to her testimony
and that she embellished her answers.
Reached at his home in Bass Lake, McCartin, who is retired, said the
reversal didn't surprise him. "I expected it, because I don't like
psychologists," he said, adding that he didn't care for the defense
attorney's style. "Kelley got under my skin. I should've had the brains
enough to sit up and rock with it, but I'm rather outspoken and
controversial, and I let it get to me. In the long run, it doesn't make
any difference anyway. He'd be sitting there [on death row] forever."
Death penalty convictions are automatically appealed, and people almost
always claim judicial misconduct, said Laurie Levenson, a Loyola Law
School professor, though few actually win on that issue.
But McCartin's behavior was over the top, she said. "I don't know whether
he thought he was being funny or moving the trial along, but it was just
inappropriate," she said. "I think they'll be teaching this one at
Tory Rubin, of Garden Grove, who sat on the jury that recommended death
for Sturm, was shocked to hear the sentence had been overturned.
"I think that is awful; I can't believe it," she said. The judge "never
did anything that would sway us either way. He was very fair."
(source: Los Angeles Times)
Judicial Bias Claims Reach Calif. High Court
Attorneys arguing that Alameda County, Calif., prosecutors routinely
excluded Jews from death penalty juries have been asked a tricky question:
Does it matter if the court record doesn't establish that any of the
excused jurors were actually Jewish?
The justices of the California Supreme Court posed that question in a
death row inmate's habeas case last month, and they're going to want
answers during oral arguments Wednesday in San Francisco.
They also want to know whether there was actual wrongdoing if a prosecutor
had a separate, valid reason for removing a juror.
The last-minute queries throw a new wrinkle into a case that has
fascinated the Bay Area legal community since July 2004. That's when the
high court in the habeas corpus case of death row inmate Fred Freeman
ordered an investigation into whether the Alameda County district
attorney's office -- in collusion with now-deceased Superior Court Judge
Stanley Golde -- intentionally purged Jews from capital juries because of
a perception that they wouldn't sentence someone to death.
Former Alameda County prosecutor John "Jack" Quatman, who prosecuted
Freeman, raised the allegations, but wound up being branded a "dishonest
and unethical" man by a Santa Clara County Superior Court judge who
presided over a weeklong evidentiary hearing 11 months ago.
Judge Kevin Murphy ruled that Freeman got a fair trial and that there was
ample evidence Quatman fabricated his claims to embarrass Alameda County
DA Tom Orloff, who took Quatman off capital cases in 1993.
The latest questions by the Supreme Court seem to indicate that the
justices could be leaning toward deciding the case on a narrow issue,
possibly whether jurors were let go simply because they appeared Jewish or
that their surnames -- Mishell, Peisker and Laput -- sounded Jewish.
"The whole point here is that the court is not going to be focusing on the
law," said Dennis Maio, a former Supreme Court research attorney who's now
of counsel in Reed Smith's San Francisco office. "The question is, was
this person a member of a cognizable group and if so, did the prosecutor
strike this person for that reason?"
The court's questions also seem to put a heavier burden on Freeman's
attorneys at San Francisco's Habeas Corpus Resource Center -- namely, to
show that prosecutors discriminated during jury selection in violation of
the standards set out in People v. Wheeler, 22 Cal.3d 258, and Batson v.
Kentucky, 476 U.S. 79, even though the record apparently doesn't establish
who, if anyone, was Jewish.
Wheeler, issued by the state Supreme Court in 1978, and Batson, handed
down by the U.S. Supreme Court in 1986, are the guidepost decisions on
jury selection bias.
Neither Gary Sowards, Freeman's HCRC lawyer, nor Morris Lenk, the San
Francisco deputy attorney general handling the state's case, returned
calls seeking comment.
But both laid out their positions in papers filed exactly two weeks after
the Supreme Court's Feb. 14 order for supplemental briefing. Predictably,
they offered diametrically opposite views.
Sowards argued that the high court's own case law in 1985's People v.
Motton, 39 Cal.3d 596, holds that litigants need not know the
"self-reported race or ethnicity" of a juror to violate
"Whether or not the prospective jurors excused by the prosecutor in this
case actually were Jewish," he wrote, "is irrelevant to the question of
whether the prosecutor exercised his peremptory challenges with the intent
to systematically exclude a cognizable class from [Freeman's] jury.
"The prosecutor," he continued, "exercised his peremptory challenges
against jurors who were Jewish or that he believed were Jewish."
Sowards noted that such exclusions result in an "error of constitutional
magnitude requiring reversal."
In response, Lenk pointed to the high court's own 2002 decision in People
v. Gutierrez, 28 Cal.4th 1083, which involved a prospective juror who
acquired her Hispanic surname through marriage.
"Absent proof that any prospective jurors excluded by a prosecutor's
peremptory challenges were, in fact, members of a cognizable group, no
Wheeler violation has been stated," he wrote. "In other words, the right
to trial by a representative jury is not violated unless it is established
that the prosecutor has excluded a person who actually is a member of a
constitutionally protected group."
Lenk and Sowards also butted heads on the court's second question, which
asked whether prosecutors violate Wheeler or Batson if they not only
excuse a juror for the improper reason of religious faith, but at the same
time for a valid reason, such as a juror being unwilling to impose the
Sowards argued that other reasons would be irrelevant and that
"discrimination based on race or religion cannot have a place in a
prosecutor's decision to strike jurors from a criminal case."
But Lenk contended that the court itself has "repeatedly declared" that
prospective jurors cannot be excluded solely on the presumption they are
biased because of race, religion and ethnicity. He also pointed out that
the evidentiary hearing judge concluded that Quatman had lied when he
claimed he had excluded jurors based on religion.
Although it's not clear what prompted the high court's questions, Stephen
Barnett, a professor emeritus at Boalt Hall School of Law, speculated the
justices could be reacting to the U.S. Supreme Court's Jan. 18 ruling in
Rice v. Collins, 126 S.Ct. 969.
In that decision, the court held that a Los Angeles prosecutor who
dismissed a black woman from a jury pool to achieve gender balance in a
cocaine possession case had "a number of other permissible and plausible
race-neutral reasons." Among them, the woman was young, lacked community
ties and had rolled her eyes in apparent disrespect when answering a voir
"It could be that the California [Supreme] Court just wants to make sure
it's up to date," Barnett said in an e-mail response. "Rice doesn't
necessarily present the issues raised by the court's questions, but it can
be read as doing so."
Justice Carol Corrigan, who was a witness in the underlying evidentiary
hearing, will not participate in Wednesday's arguments in In re Freeman,
S122590. Justice Ming Chin has also recused himself.
Subbing for them will be Justices Paul Boland, of Los Angeles' 2nd
District Court of Appeal, and Judith Haller, of San Diego's 4th District.
(source: The Recorder)
Public May Get To Sound Off On Death Penalty----Referendum May Come In
A Senate committee Monday passed a resolution that would allow voters to
give their opinions on whether Wisconsin should have the death penalty.
Should Wisconsin Reinstate The Death Penalty?
Wisconsin hasn't had capital punishment in 150 years.
But the gruesome murder of Teresa Halbach has some questioning and pushing
to bring the death penalty back.
Republican Sen. Alan Lasee has tried nearly every year to get the death
penalty passed in Wisconsin.
The De Pere lawmaker believes life behind bars is not for criminals who
commit gruesome crimes.
"The murder that's been in the news, the Halbach case, really jumps out
and cries for more severe punishment than simply sitting in jail," said
Lasee contends he has spoken with families of murdered loved ones who say
the death penalty would bring closure to them.
But Bill Swanson, who lost a son in Verona's 2003 triple homicide, said
he's not sure if the death penalty is the answer.
Swanson said he still harbors anger and resentment.
Mark Wu, the suspect in the case killed himself.
Wu's death did not bring him closure.
"I really haven't forgiven the man that murdered my son," said Swanson. "I
don't know if I ever will but I still feel that another murder is not
going to solve anything."
Lasee is pushing for the advisory referendum to be on the September
He believes at least 60 % of the state will support it.
Lasee will introduce the measure in the Senate Tuesday.
Madison's Democratic representative Spencer Black told WISC-TV the death
penalty has not had support for at least 20 years and he doesn't believe
it will gain support this time.
(source: Channel 3000)
Jury Is Told Papers Link Plotter to 9/11----Prosecutors say lists in
Moussaoui's bag could have prevented the attacks. But the defense notes
that the U.S. failed to get a search warrant.
Hoping to put to death the only man charged in the Sept. 11 conspiracy,
federal prosecutors opened the sentencing trial for Zacarias Moussaoui on
Monday by revealing that documents linking him to the 4 men who piloted
the hijacked jets were in his possession when he was arrested 3 weeks
before the attacks.
Assistant U.S. Atty. Robert A. Spencer told the jury that if Moussaoui,
then in custody on a visa infraction, had told FBI agents about his phone
calls and 2 lists of flight schools hidden in his duffel bag, the
government could have prevented the deadliest terrorist operation in U.S.
"The FBI would have quickly been on to all four pilots of the hijacked
planes," Spencer said. "But Moussaoui lied so his brothers could go
forward. He lied and nearly 3,000 people perished."
Spencer said that the FBI would have contacted the flight schools to
immediately locate and arrest the 4 pilots; if that failed, he continued,
agents would have alerted airport officials to keep the hijackers from
approaching security gates or boarding planes.
But Moussaoui's defense lawyers, in their opening statement, told the
jurors that agents were highly suspicious of Moussaoui, but they never
formally sought or obtained a government search warrant to open his
Furthermore, the defense lawyers said, authorities knew that several
hijackers were already in the United States, but because of government
infighting never devoted the resources to hunt them down.
One of the court-appointed lawyers, Edward B. MacMahon, characterized
Moussaoui, a French citizen and self-admitted member of Al Qaeda, as more
of a dunce who was never taken seriously by U.S. authorities. He noted
that after Moussaoui was arrested Aug. 16, 2001, no one from a terrorist
cell in this country or operatives abroad contacted him or came to his
One Al Qaeda member later conceded that Moussaoui was considered "cuckoo
in the head," MacMahon said, and the terrorist organization gave him money
at times "just to get rid of him."
MacMahon said Moussaoui, who was trying to learn to fly jumbo jets when he
was arrested in Minnesota, was inept, asking flight instructors whether an
airplane door could be opened at 40,000 feet and whether the cabin was
The defense lawyer further suggested that Al Qaeda chiefs had placed
Moussaoui in the United States to throw federal agents off the track of
the real plot, in which 4 jets were hijacked and flown into the World
Trade Center towers and the Pentagon. The fourth plane, forced down into a
Pennsylvania field, never reached its target.
"Moussaoui did not train with them because he was not on their team,"
The 37-year-old Moussaoui, a Moroccan by descent who turned to radical
Islamic fundamentalism in Britain, pleaded guilty in April to 6 criminal
charges in the Sept. 11 conspiracy.
3 of the charges make him eligible for the death penalty. He admitted that
he had conspired to commit acts of terrorism, that the conspiracy was
aimed at destroying aircraft and that planes were used as "weapons of mass
Because he already has pleaded guilty, the 10 men and 7 women chosen as
jurors and alternates Monday morning have 2 tasks.
First, the jury - whose 12 members will be designated as deliberations
begin - must decide whether the government proved that Moussaoui's refusal
to cooperate with the FBI after his arrest left them unable to unravel the
Sept. 11 plot and arrest the hijackers. If they decide not, he
automatically would be given life in prison with no parole.
If prosecutors make their case, the sentencing trial would move into a
second phase. The government would be allowed to bring survivors and
families of the Sept. 11 victims into the courtroom to describe their
Likewise, the defense team could present testimony about and evidence of
Moussaoui's mental instability.
The defense emphasized to the jury Monday that like the Sept. 11 hijackers
and other Al Qaeda suicide bombers, Moussaoui was seeking death.
"We know that Moussaoui is yearning for martyrdom," MacMahon said. "He
wants his smiling face on all the future Al Qaeda recruitment posters."
But, his defense lawyer said, "he doesn't deserve that."
Unlike previous courtroom appearances, which he disrupted with outbursts
such as "I am Al Qaeda," Moussaoui sat fairly calmly throughout Monday's
proceedings. Clad in a green prison jumpsuit and white knit cap, he was
surrounded by marshals.
During one court recess, as he was being escorted from the room, he
blurted out: "All of this is an American creation. This has nothing to do
Later, when videos were shown of Al Qaeda recruits singing songs during
training sessions, Moussaoui could be seen mouthing the words. At day's
end, as he was being taken back to his solitary jail cell, he grumbled:
"It's your story."
Outside the courtroom, several relatives of Sept. 11 victims said they
hoped the trial remained focused on what Moussaoui could have done to stop
the plot, and not on whether government agents missed opportunities to
arrest the 19 hijackers.
"We all know this country made a lot of mistakes," said Brad Burlingame,
whose brother, Charles Burlingame, was captain of American Airlines Flight
77, which was flown into the Pentagon. Moussaoui, he said, "was aware of
the plot and he had information that he chose not share."
(source: Los Angeles Times)
Prosecutor Urges Death for Concealing Sept. 11 Plot
A federal prosecutor on Monday asked a jury to sentence Zacarias Moussaoui
to death, saying his willful decision to conceal his knowledge of the
Sept. 11 terrorist plot when he was arrested weeks earlier made him
responsible for the thousands of deaths that day.
In response, a court-appointed lawyer for Mr. Moussaoui told jurors they
could not order the execution of a man on no more than a supposition: that
had he revealed his knowledge of Al Qaeda's interest in flying planes into
public buildings, the federal authorities would have prevented the attacks
of Sept. 11, 2001.
Mr. Moussaoui, a 37-year-old Frenchman of Moroccan heritage, is the only
person to be charged in the United States justice system with direct
involvement in the Sept. 11 attacks. He was in jail on that day, having
been arrested three weeks earlier in Minnesota on immigration charges
while he was taking flight lessons.
He has pleaded guilty to 6 conspiracy counts and admitted that he was
taking flight training to be available for a Qaeda campaign to fly
aircraft into buildings. But he has insisted that he was not part of the
Sept. 11 plot and that he does not deserve to die.
Because he has pleaded guilty, the trial that got under way on Monday is
solely over whether he is to be executed by lethal injection at a federal
prison in Indiana or spend his life in prison.
In their opening statements, lawyers for the government and for Mr.
Moussaoui presented starkly different portraits of his importance to Al
Qaeda's plans to wage war on the United States.
Robert Spencer, an assistant United States attorney, told the jury that
Mr. Moussaoui was "in the thick of the plot" but that because he had been
arrested, his contribution to the attacks "in the end was to lie so his Al
Qaeda brothers could go forward."
Mr. Spencer said that had Mr. Moussaoui told a Federal Bureau of
Investigation agent in August 2001 what he knew about Al Qaeda's plans,
the bureau and the Federal Aviation Administration would have gone on full
alert and taken steps to hunt down the hijackers and increased security at
the nation's airports.
He said documents recovered from Mr. Moussaoui's home after Sept. 11
provided valuable clues that would have led directly to many of the 19
hijackers of that day.
"He killed the 9/11 victims as surely as if he had been at the controls in
one of those airplanes," Mr. Spencer said.
Edward J. MacMahon, one of the court-appointed lawyers who is conducting
the defense over Mr. Moussaoui's objections, said it was true that his
client had proudly proclaimed himself a member of Al Qaeda and said he was
planning to fly a plane into the White House at the orders of Osama bin
But Mr. MacMahon attacked the government's argument that had Mr. Moussaoui
spoken truthfully of what he knew when he was arrested it would have
prevented the attacks. He cited the official commission that investigated
the attacks and found the government had several indications of Al Qaeda's
plans before that day. The report found that the authorities never fully
appreciated the significance of some of the leads.
"You can't judge him to get revenge for 9/11," Mr. MacMahon said. "You
can't make him some substitute for Osama bin Laden. And you can't make him
a scapegoat for what government officials did not do" to prevent the
Even if Mr. Moussaoui had not lied, he said, there is no reason to believe
that the authorities would have acted quickly on that information any more
than they acted on other leads. What officials would have done is
speculative, he said, adding that Mr. Moussaoui was regarded as unreliable
even by his Qaeda colleagues.
"No one should be executed on such flimsy evidence, not even a member of
Al Qaeda," Mr. MacMahon said.
Throughout it all, Mr. Moussaoui sat back quietly in a chair to the side,
slowly stroking his beard, often staring intently at spectators, who
included about 10 family members of the attack victims.
The jury was whittled down on Monday to 17 people who will hear the case
over the next several weeks. When it comes time to deliberate, 12 of that
group will decide Mr. Moussaoui's fate. The jurors, 7 women and 10 men,
are all from the Northern Virginia area.
Under the federal death penalty law, the jury's 1st task is to decide
whether the crimes to which Mr. Moussaoui has pleaded to resulted in the
death of anybody. If the jury is unanimous on that issue, it will consider
aggravating factors, like the severity of the crime, as well as mitigating
factors. If it finds the aggravating factors outweigh any mitigating
factors, it will vote on whether to recommend the death penalty. If it
does so, again unanimously, the judge is obliged to impose it.
Because Mr. Moussaoui pleaded guilty, the arguments that would have been
at the heart of a jury trial on the question of his guilt will now get an
airing before the newly installed jury, which is to decide his sentence.
So the proceedings to come will resemble in almost every way the kind of
trial that usually determines guilt or innocence in a capital case, and
therefore may last for several weeks.
In addition to arguing that Mr. Moussaoui played no part in the Sept. 11
conspiracy, his lawyers are expected to argue that he is mentally
unstable, a potentially mitigating factor. The lawyers have arranged for a
psychologist to testify that Mr. Moussaoui's behavior, notably his
frequent outbursts in the courtroom during the earlier proceedings, show
him to be suffering from a mental disorder, "most likely schizophrenia,"
that began with his experiencing racism as a youth in France.
The government, for its part, plans to emphasize the losses of the Sept.
11 attacks. Prosecutors have prepared more than 40 family members to
testify about the devastating impact on their lives.
The trial will include statements from 6 Qaeda officials in secret United
States custody, including Khalid Shaikh Mohammed, the chief planner of the
Sept. 11 attacks. But those statements that will be included at the order
of Judge Leonie M. Brinkema are likely to be solely about Mr. Moussaoui's
role in Al Qaeda and also may not be made public.
Mr. Moussaoui's actual role in the Sept. 11 attacks has remained an
intriguing mystery to investigators. The official commission that studied
the attacks concluded that Qaeda leaders might have considered using him
as "a potential substitute pilot" on Sept. 11 because of friction among
other participants, but that his arrest scuttled that possibility. The
commission also speculated that he might have been meant to be part of a
2nd wave of attacks and noted that Al Qaeda spent some $50,000 on his
(source: New York Times)
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