During closing arguments on Monday, both sides had their final shot at swaying the jurors. It has already been determined that the 37-year-old French citizen is eligible for the death penalty after he pleaded guilty last year to conspiring with al-Qaeda. (Moussaoui is the only person convicted in the US on charges relating to 9/11.) The question is whether US Government lawyers persuaded them beyond a reasonable doubt that he should be.
"It is time to put an end to all this," David Raskin, the prosecutor said during closing arguments, urging the jury to sentence Moussaoui to death. "It is time to put an end to his hatred and venom." The Bush administration, suffering from sagging poll numbers as the Iraq war grows increasingly unpopular, is banking on the death penalty. Many family members of the victims — who were on hand during the latest phase of the trial — believe that such a punishment will give them a long-sought sense of justice.
But despite the gravity of the charges, a huge slice of the American public has tuned out the long, meandering trial. Many found the often detailed testimony yawn-inducing; some spectators even dozed off at one point in the federal courtroom in Alexandria, Virginia, which sits in the shadow of Washington, DC and the Pentagon.
The case was fraught with bungling, missteps, delays and downright odd behavior by key players on both sides. Government lawyers argued that Moussaoui could have thwarted the terror attacks by alerting investigators to them when he was arrested on immigration charges on August 17, 2001. (He had raised suspicion at a Minnesota flight school by asking for information on flying a 747). Moussaoui testified that he knew the strikes were coming, but kept mum to ensure they were successful.
Moussaoui’s defense team argued that even if he had fessed up then, there was no guarantee that investigators would have foiled the plot; they cited the findings of congressional and national commissions that intelligence agencies had leads on an aviation attack in the weeks before 9/11 but dropped the ball.
Moussaoui pleaded guilty to six counts of conspiracy. But the Government, seeking the death penalty, nearly blew its case: Federal Judge Leonie Brinkema threw out key testimony after discovering on March 13 that a seasoned Government lawyer assisting the prosecution had coached witnesses. Hobbled prosecutors rebounded, however, when Moussaoui suddenly told jurors on March 27 that he had been training to attack the White House in a fifth plane on September 11, 2001, with none other than Richard Reid, Britain's would-be "shoe bomber".
The confession sent his court-appointed defense into a frenzy. They scrambled to paint their client as mentally unhinged, arguing that jurors should use that as a mitigating factor to spare his life. In arguing against the death penalty, Moussaoui’s lawyers also warned that he wanted to whip up anti-US sentiment by dying a martyr. "He wants you to sentence him to death. He is baiting you into it," Gerald Zerkin, one of Moussaoui’s lawyers, said during closing arguments. "He came to America to die in jihad and you are his last chance." Mr Zerkin urged the jury to "confine him to a miserable existence until he dies and give him not the death of a jihadist. . .but the long slow death of a common criminal."
During the sentencing hearing, Moussaoui’s lawyers called in Xavier Amador, a clinical psychologist who testified that Moussaoui was delusional and suffering from paranoid schizophrenia. His evidence? That Moussaoui believes that his attorneys were conspiring to kill him; that the FBI tried to track his movements through a gadget inside an electric fan; and that President Bush would free him in a prisoner swap.
Mr Amador also said that when he tried to visit Moussaoui in his courthouse holding cell last year, he discovered him sitting in a corner talking to himself in hushed tones. He said that when Moussaoui saw him, he repeatedly filled his mouth with water and spit on him.
Government lawyers — and Moussaoui himself — disputed that he’s crazy, pointing to many lucid moments and the fact that he managed to keep his fury in check when the jury and judge were on hand. Mr Amador, who was paid $100,000 over four years by the defense, admitted under cross-examination that Moussaoui had rational spells, and acknowledged that he based his diagnosis mostly on interviews with family members and attorneys and on Moussaoui’s handwritten court filings.
In another wacky twist, prosecutors presented evidence showing that in a February jailhouse interview, Moussaoui offered to testify for the prosecution against himself. Was this supposed to show that he is sane? It was hard to tell. James Fitzgerald, an FBI agent, testified that Moussaoui told him that he did not want to die in prison, that it was "different to die in a battle. . . than in a jail on a toilet".
Government lawyers admitted they have no evidence to support Moussaoui’s bombshell that he and Reid were planning to partner on a suicide mission. In fact, Reid reportedly named Moussaoui as the beneficiary in his will – a somewhat strange choice if they were planning to die together.
In another bid for Moussaoui’s life, his lawyers tried to portray him as a sympathetic character. They introduced testimony that he had an abusive father and a family history of mental illness. A sister testified that he was "the little sweetheart of the family" — a portrait that contrasted wildly with his behavior throughout the trial. During testimony last week, Moussaoui told jurors that his only regret was that more Americans didn’t die in the attacks. He appeared unmoved by tapes of heart-wrenching final phone calls from passengers on the doomed Flight 93 played in the courtroom, and he called family members of 9/11 victims who tearfully testified against him "disgusting". Shouting "Death to the Jew" as he left court one day last week — an apparent reference to Zerkin, one of his court-appointed lawyers, who is Jewish — didn’t do much to soften his image, either.
Is Moussaoui a madman? Moussaoui himself says he’s not. But, if he’s truly mad, who is he to judge? Does it even matter? Mr Raskin, the prosecutor, argued that it does not. "What could possibly mitigate all of this?" he said during closing arguments. "Just because we can’t comprehend this kind of evil, doesn’t mean he suffers mental illness." Raskin also rejected defense arguments that executing Moussaoui would make him a martyr. "He wants you to think Osama bin Laden will be mad at us. Do you think Osama bin Laden gives a damn about what happens here?" he said. "It’s a joke."
In the end, it will all come down to the jurors, many of whom choked up during emotional testimony from family members of 9/11 victims. As Moussaoui crowed after a day in court last week: "Crazy or not crazy, that is the question."
