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Update: The Moussaoui Case

July 25, 2002 at 12:00 AM EDT

MARGARET WARNER: And here now to walk us through another strange courtroom day for Zacarias Moussaoui, the man accused of being the 20th hijacker, are Philip Shenon of The New York Times and Mary Cheh, professor of constitutional law and criminal procedure at George Washington University law school.

Phil, welcome back. It was another bizarre courtroom day for Moussaoui. Tell us about it.

PHILIP SHENON: It was actually more civilized than the last go-around. Moussaoui walked into the courtroom today apparently intending to plead guilty to most of the charges against him in the indictment, the indictment that charges him with conspiring in the September 11 attacks. After it was explained to him by the judge that he would have to plead guilty to direct involvement in the September 11 conspiracy, Mr. Moussaoui backed away, said he wouldn’t plead to that. He wasn’t directly involved in September 11 and withdrew his guilty plea. So we’re back to where we were a week ago.

MARGARET WARNER: Did he explain why he was ready to plead guilty to four of the counts but not the other two? As I understand it, the four he was ready to plead guilty to are the four that carried the death penalty.

PHILIP SHENON: The four most serious against him. He is attempting to make sure that he has the opportunity to explain in his own voice what his involvement, if any, was in this terrorist conspiracy. By pleading guilty to these four of the most serious charges against him, he can essentially short-circuit the trial, he can move directly to a penalty phase in which he can plead for his life. He fears that if the trial goes forward, or so he says, he fears if the trial goes forward, he will be demonized in the course of it by the prosecutors in such a way that his death will be guaranteed.

MARGARET WARNER: But I mean then why didn’t he plead guilty to all six?

PHILIP SHENON: Well, because you are only permitted this penalty phase in situations in which prosecutors are seeking the death penalty. In the two other counts, he is not facing the death penalty, and therefore, the penalty phase wouldn’t occur.

MARGARET WARNER: Now, I gather that Judge Brinkema then began going through this litany of questions to see if he really knew what he was pleading to. What was he ready to admit to and what question did he balk at?

PHILIP SHENON: He is willing to admit to being a member of al-Qaida. He is willing to admit that he is loyal to Osama bin Laden. He is willing to admit that some of the particulars in the indictment, the fact that he was a member of al-Qaida, the fact that he may have been to al-Qaida training camps, that that was true. But he was not willing to acknowledge an involvement in the September 11 conspiracy. Essentially what he was saying is, “Yes, I’m a terrorist, yes, I was involved in terrorist conspiracies, but I wasn’t involved in this terrorist conspiracy.”

MARGARET WARNER: Now, when he came back from this recess, I gather they called for him and he came back and said,” I withdrew my guilty plea.” Did he say why?

PHILIP SHENON: He said because he couldn’t acknowledge… he couldn’t acknowledge direct involvement in September 11. He said by acknowledging that, he would be telling a lie, and he would also be guaranteeing the death penalty.

MARGARET WARNER: Now, on a separate track, I gather two different sets of lawyers tried to stop today’s hearing. Tell us about that.

PHILIP SHENON: Well, it’s a bit confused. We did have a professor from New York University Law School appear in the courthouse today apparently at the request of the judge to meet with Moussaoui and apparently offer him counsel. There was a meeting between Moussaoui and this lawyer, but the details of it weren’t released to us, and the law professor refused to discuss it with us. You also have representing Moussaoui as stand-by counsel a group of respected defense attorneys, private defense attorneys who’ve been put on the case by the court. Moussaoui, however, has insisted that these lawyers are not operating in his best interests, and he has refused to have, until today, any communication with them.

MARGARET WARNER: I gather they sent the judge a request, another request for psychiatric exam and she’s ruled no on this today?

PHILIP SHENON: She did. This has been a continuing issue for these lawyers and also for Moussaoui’s mother, who is also attempting to prevent the trial from going forward. But the judge, once again, said that she believed Moussaoui to be mentally competent, and she said she had seen evidence in just the last week that he was competent and coherent. And last week, she had advised him to stop sending in these quite vicious court motions. And over the course of the last week, he has indeed stopped doing that.

MARGARET WARNER: She went before the cameras today and told reporters that she felt– I think her words were… she said he wasn’t able to sleep properly or eat properly and he was “no longer able to think rationally.” She was protesting the conditions of his detention. What are they like?

PHILIP SHENON: They’re quite strict. He has almost no contact with the outside world. He is not permitted ready access to most publications. He has no regular mail deliveries. Every bit of mail that comes to him and that he sends out has to be reviewed by the FBI. He really is in a completely isolated situation.

MARGARET WARNER: And so what happens next?

PHILIP SHENON: Well, we now return to where we were a week ago, which is the trial moves forward, supposedly it begins in late September. There are a variety of issues that have to be dealt with before then, most importantly the one as to whether or not the death penalty is applicable in this case.

MARGARET WARNER: All right. Mary Cheh, help us analyze this legally. As a legal matter, what do you make of what Moussaoui did today?

MARY CHEH: Well, from what we can tell about his strategy, he’s keen to save his own life, and I don’t think he’s quite sure how to do that. He thinks that the way to do that is to tell an unvarnished story to a jury because he thinks that a jury, unlike the judge and the lawyers and all the other participants, will give him a fair hearing. He’s been quoted as saying that “America is my enemy, but Americans are honest enemies.” And so he wants this as Phil said, an unvarnished opportunity to put his side to jurors.

It’s almost a fanciful notion that, gee, if I could just tell you what I did and what I didn’t do, you’ll see that I’m not as bad as the government is trying to portray me. And they’re all trying to kill me. So in one sense, it made a lot of sense for him to withdraw his plea because he finally realized that he was in a terrific box; that is, if he entered a plea of guilty on the charges and the particulars of the charges, he would be admitting that he was involved in this conspiracy. He doesn’t want to admit that. As Phil said, he’s willing to admit he’s a terrorist, he’s a member of al-Qaida, but he thinks that there is a line between that and actual participation in the 9/11 terrorist act.

MARGARET WARNER: And he thought that was a short cut he could plead guilty to sort of half a guilty plea and somehow get before this jury?

MARY CHEH: That’s right — and lay out his side without anybody intervening. He could have this opportunity to have a fair hearing with citizens.

MARGARET WARNER: Is it clear why he doesn’t think he’ll have that at the regular trial, at the trial on the finding of fact phase?

MARY CHEH: Well, because the government will be able to put on a case, and they’ll bring out all sorts of witnesses and they’ll try to connect him up. There are all sorts of parallels between his behavior and those who were involved in the 9/11 incident. And then there are various overlaps with others and the receipt of money. So he thinks by the end of, that the jury, which will be the same jury in the penalty phase as in the guilt phase, will already be turned against him.

MARGARET WARNER: Now, the judge, in the way he acted today and the way she handled it, first of all this litany of questions she went through where she forced him to confront what he was really pleading guilty to, is that required?

MARY CHEH: Yes, it’s specifically required. Not only does she have to tell him what rights he gives up by entering a plea of guilty, assure that it’s voluntary and knowing, she has to find that there’s a factual basis for the plea. And I’ve seen this happen myself. Sometimes you’ll have someone who wants to enter a plea.

For example, let’s say it was a crime where you require that they specifically intended to kill someone, and then the judge will say,” well, tell me about what you did.” And then the person might say something like, well, and then the gun went off by accident. And the judge will say,” whoa, you’re here to enter a plea to specific intent murder, now you’re saying it was an accident? I can’t accept that plea.” It’s something like that. He’s saying,” yes, I’m a terrorist, but no, I didn’t involve myself in these conspiracies that they’re alleging.”

MARGARET WARNER: All right. Now, how badly has Moussaoui hurt himself at trial with these statements he’s made?

MARY CHEH: Well, the judge had admonished him about making statements implicating himself. And it’s possible that these statements may come back to hurt him. But as we’ve discussed, there’s a possibility, too, that these statements might be considered part of a plea proceeding, and if they’re part of a plea proceeding, the rules say that statements made in the course of plea proceedings are not admissible. They’re admissible for some purposes, for example, a perjury charge, but not in the case itself.

MARGARET WARNER: But she did tell the prosecutors today, I gather, that they cannot introduce the fact that he tried to plead guilty.

MARY CHEH: Oh, that’s absolutely certain. But there might be a fight about his statements. I think there is some ground– he may lose, but there’s some ground to try to keep those out — another reason why he needs a lawyer.

MARGARET WARNER: And that brings us to this competency issue. Now, the judge as we heard Phil describe, again said today he seems competent to represent himself. To an average American looking at just this behavior these last two weeks, the idea of him being mentally fit to represent himself seems irrational. Is there a different standard legally for what the meaning of the term competent is?

MARY CHEH: Well, if we take an ordinary sense of competence, maybe people are questioning it. But the legal standard is quite thin. It only requires that he understand the nature and the consequences of the proceedings against him. It doesn’t mean that he has to be schooled in the law; it doesn’t even mean that he has to understand fully that taking this path or the other path might harm his legal chances. All he has to do is understand what the nature of the charges are against him. He does understand that.

In fact, my reading of what went on today is that he confirmed the judge’s ruling on competence because he showed rationality and he showed strategy. Once he realized that he was sort of in this box about this entering of a plea under all the circumstances and that would foreclose his opportunity to go in an unvarnished way before jurors, he stepped back. So he knows what he’s doing, although what he may be doing is not sensible from a legal perspective.

MARGARET WARNER: And if there’s anyone who disagrees with this, such as this stand by counsel, they think in fact he’s not mentally competent but he thinks he is, is there anyone to appeal this judge’s rulings that he’s competent. Does that make sense?


MARGARET WARNER: In other words, that can be appealed by anyone?

MARY CHEH: Well, the judge has been willing to allow stand by counsel to file motions and has entertained those motions and ruled on those motions. In fact, they made a motion that he be held incompetent. Again, it was rejected. They could proceed with this on appeal on his behalf. But other people, like his mother, she doesn’t have any standing in the case to do so.

MARGARET WARNER: All right. Well, Mary Cheh and Phil Shenon, again, thanks to you both.