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MARGARET WARNER: Joining me to talk about today’s dramatic developments are Philip Shenon of The New York Times– he was in the Alexandria federal courtroom today when Zacarias Moussaoui tried to plead guilty; and Mary Cheh, professor of constitutional law and criminal procedure at George Washington University Law School. Welcome to you both.
Phil Shenon, beginning with you, take us inside the courtroom today. How did this unfold?
PHILIP SHENON: Well, it was the usual high drama from Mr. Moussaoui. He entered the courtroom for what was supposed to be a fairly routine rearraignment on a new indictment of him. Pretty quickly he made clear to the judge that he was very unhappy about his treatment by her in a series of motions he’s made to the court. She asked him to enter a plea. He attempted to enter a plea, a rather arcane plea in which he would apparently concede to some of the charges against him but not others.
PHILIP SHENON: She refused to accept that plea, entered a plea of “not guilty” on his behalf and very angrily he once again took his seat. There was a lot of back and forth then about unrelated evidentiary matters at which point Mr. Moussaoui then shot up from his chair, went to the lectern and announced that he had decided to enter a “guilty” plea and that he would accept responsibility for the conspiracy in the September 11 attacks.
MARGARET WARNER: What exactly did he admit to?
PHILIP SHENON: Well, we’re not quite sure. He was, he repeated the claim he’s made in the past that he was not directly involved in the September 11 attacks, but he did announce in a very clear voice that he was a member of al-Qaida and that he had pledged a loyalty to Osama bin Laden. He seemed to be suggesting that he was indeed a terrorist, he was involved in terrorist conspiracies, but perhaps he wasn’t involved in this particular set of attacks and that that’s what he hoped to prove to a jury who might spare him the death penalty.
MARGARET WARNER: Now, I gather that the judge was very startled and tried to stop him from continuing to talk and continuing to say things. Tell us about that.
PHILIP SHENON: This is — this is nothing new in the relationship between the judge and Mr. Moussaoui. She repeatedly today had him take his seat over his protest. She did attempt to stop him at the moment he made these confessions about being a member of al-Qaida and being loyal to bin Laden. She did attempt to stop him and reminded him that anything he said in the court could and probably would be used against him later on.
MARGARET WARNER: And did she also say something to him about, you know you shouldn’t be giving away this guilty plea? I mean this is something you usually would negotiate.
PHILIP SHENON: She said, you know, listen, Mr. Moussaoui, you know, trained lawyers would know that you could become involved in negotiations with prosecutors that could result in the prosecutors agreeing to spare him the death penalty. He didn’t want to hear any of this. He said he had been thinking about this for months and again, in a very forceful, determined voice he said he wants to plead guilty. She said she would give him a week to think about it. He said he didn’t need a week; he had already made up his mind.
MARGARET WARNER: Now, the wires had somewhat conflicting reports, but they both suggested that he said something like, well, I want to plead guilty because I want to save my life. Did he say something like that?
PHILIP SHENON: It’s a little confusing to explain. We’ll give it a shot. He seems to be saying that he believes that Judge Brinkima, is about to gag him, about to take away his right to defend himself in his own words, and the only way he knows how to save his life is by pleading guilty to these charges and then having a forum during the penalty phase, the phase in which it’s decided whether or not the death penalty is appropriate, during that penalty phase, he will make his argument that indeed, while he might be a terrorist, he was not part of this particular terrorist plot.
MARGARET WARNER: Now, you mentioned earlier that he was coming in to plead to a new indictment. And just explain why the prosecution felt it was necessary to have a newly worded indictment here.
PHILIP SHENON: The Supreme Court, in a ruling this summer, placed new restrictions on prosecutors in use of the federal death penalty. They now require, or it’s believed a clear reading of the Supreme Court ruling is that grand juries are required to make clear what are the aggravating circumstances that should make somebody eligible for the death penalty. The original indictment of Mr. Moussaoui was before the Supreme Court ruling; it did not include these aggravating factors. The new indictment, in just a few paragraphs, includes mention of the fact that these were violent deaths, that Mr. Moussaoui was clearly of age and that there was in effect torture involved.
MARGARET WARNER: Now, he does have this stand by defense counsel that has been appointed for him, although I know he doesn’t talk to them. What was their reaction to this?
PHILIP SHENON: They were startled, but they, they were startled but they weren’t startled, you know. There’s not much Mr. Moussaoui can do to surprise them at this point. They are making the argument that he is indeed mentally ill and what happened today in the courtroom, along with all the other actions Mr. Moussaoui has taken in recent weeks, are proof that he should not be permitted to defend himself.
MARGARET WARNER: And finally, I gather that the judge in the last couple of weeks has given some indications that she might be rethinking her decision after month ago that he was legally competent to represent himself.
PHILIP SHENON: There has been, Mr. Moussaoui has filed literally dozens, scores of motions with Judge Brinkima arguing his case in increasingly erratic tones. The tone of these motions is increasingly belligerent, increasingly insulting. And she said today that if he kept it up, she would seriously reconsider her decision to allow him to represent himself.
MARGARET WARNER: Okay, Mary Cheh, now help us sort through all this as a legal matter. First of all, is Zacarias Moussaoui totally within his rights, representing himself in a capital murder case, to plead guilty?
MARY CHEH: Yes, he is in his rights and he can plead guilty. There’s no specific constitutional statement that he can plead guilty, but he’s allowed to enter a plea, and give up his defense. There has to be certain findings though, that he’s competent to do so.
MARGARET WARNER: And then was the judge within her sort of rights and authority today to reject it at least for now?
MARY CHEH: Yes, and I think it was very wise that she did so. An element of caution here is warranted because, as Phil Shenon pointed out, the erratic behavior of this defendant representing himself, the judge has to walk a fine line. He as a constitutional right to represent himself, but by the same token, she has to ensure that she doesn’t allow him to go so far as to seriously create a situation where he’s violating his own rights, in effect.
MARGARET WARNER: How unusual is something like this?
MARY CHEH: This is pretty unusual. I wouldn’t be prepared to say it’s unique, but it’s quite unusual. First of all, in most cases, defendants want lawyers and have lawyers and need lawyers. And particularly in death penalty cases, it’s important that they have lawyers. But he not only wants to represent himself, but now he wants to plead guilty, and he has a lack of appreciation of what he is forsaking both by representing himself and by pleading guilty or attempting to plead guilty the way he is.
MARGARET WARNER: Now, she, as we heard Phil Shenon describe, she said to him,” you take a week and think about it.” But she has a lot of thinking to do, doesn’t she, before the hearing next Thursday in terms of whether she will allow him or should allow him to enter this plea for himself?
MARY CHEH: Well, the rules require that she satisfy herself that he’s knowingly, voluntarily, intelligently entering this plea, so he has to be competent to do so. But what it may do is trigger for her, again, her second-guessing of the original determination that he’s competent to represent himself. So she’s probably analyzing whether it’s appropriate now to reconsider that decision and perhaps order another examination and another determination whether he should represent himself.
MARGARET WARNER: Would that be the procedure if in fact she was having misgivings and again, as Phil mentioned, that she even mentioned that today, would she order this examination even before next week?
MARY CHEH: She could. She could act on her own motion and have him examined again and have the defense and the prosecution offer up whatever additional evidence they think. And in consideration of his behavior, the motions that he’s filed betray a certain lack of reality about the process and about the facts. If he’s intelligent and he understands things, well, that’s only one thing. He may not be able to fully appreciate the reality. He might be so imbedded in this notion that this is just a farce to send him to the gas chamber, as he has said, that he really can’t appreciate sufficiently the circumstances that he’s in.
MARGARET WARNER: Now, let’s say she determines that he’s not competent and counsel is really appointed and takes this case on. Still, nonetheless, can the statements he made today be used in a trial against him?
MARY CHEH: Those statements ordinarily could be made. Any time you make a statement, no one’s forcing him to make these statements — he’s making these statements and they’re against his interests. And they would be admissible against him. There’s only one sliver of possibility to keep them out. There is a provision in the rule about pleading guilty that statements made in connection with a procedure to plead guilty are not admissible because we want people to be able to have a give and take before they actually enter a plea. That’s a bit of a reach, but you know, thinking for the defense side, if I wanted to limit the damage here, I would say, well, since he’s representing himself, he doesn’t have a full knowledge of how the rules apply, he may have thought that he was involved in perhaps negotiations to plead guilty, something like that. But otherwise, these statements will hurt him.
MARGARET WARNER: All right, now, let’s go to the second scenario. What if she decides to go ahead and accept his guilty plea, if in fact he wants to enter it again next week? Then you mentioned that she still has to go through some process.
MARY CHEH: That’s right. There’s a federal rule, Rule 11, that requires that the judge fully determine that he’s entering this plea knowingly and intelligently and voluntarily. She will go through a colloquy, a little discussion with him, explaining to him at length exactly what he waives and what he gives up by enter ago plea of guilty and the consequences of that. She’ll make sure that it was voluntary. She’ll ask him various questions and we had seen something of this with John Walker Lindh when she entered his plea of guilty, and you see this actually in all courts, to establish that there’s a proper basis for him to enter that plea.
MARGARET WARNER: Including going through each one of the counts and getting him to say guilty to each count?
MARY CHEH: Well, you know, in his case, it’s, I think every appearance that he’s made so far seems to have this jack-in-the-box quality. You don’t know when or what is going to pop out. Given the way he behaved today, I have my doubts that he’s actually going to plead, enter a plea of guilty to the counts against him because he wants to maintain that maybe he’s a member of al-Qaida, maybe he’s involved, you know, in terrorist activities, but he didn’t involve himself in September 11. Well, that’s the essence of the indictment against him.
MARGARET WARNER: So if he were then to say, oh, well, no, I’m not guilty of that one, then we’d be back to square one?
MARY CHEH: Exactly. The judge won’t accept a plea with all these qualifications and conditions. Now, there have been occasions where people can enter a plea as to some charges and then go to trial on the others. But he’s not, it seems — you know, one doesn’t know — but it seems as though he’s not prepared to enter a guilty plea on the actual charges against him in that indictment. In which case, we’re not anywhere. In addition, there are these aggravating circumstances that could lead him to get the death penalty. It’s quite unclear to me that he’s going to concede any of those if he wants to have a forum to try to save his life.
MARGARET WARNER: And a whole separate trial on those?
MARY CHEH: A separate proceeding.
MARGARET WARNER: All right, thank you both, Mary Cheh, Phil Shenon, thanks.
PHILIP SHENON: Thank you.