RAY SUAREZ: For more now on today's decision by the Justice Department to pursue the death penalty, we are joined by Peter White, a former assistant U.S. attorney in the eastern district of Virginia where Zacarias Moussaoui is being tried. He is now in private practice. And David Baugh, a defense attorney who represented a death eligible defendant last year in the Kenyan embassy bombing trial in New York. His client, Mohammed al-Owhali, was sentenced to life in prison.
RAY SUAREZ: Well, Gentlemen, let's start with how we found out that this is the government's intention at all. They filed this notice of intent to seek a sentence of death. Why did they have to signal this intention so many months before the trial begins, Peter White?
PETER WHITE: The first answer is because the judge ordered it to be filed by this week, but the statute that sets up framework for doing death penalty trials requires the government to lay out its theory that would justify a sentence of death in advance so that the defense has an opportunity to prepare and to rebut and to make legal challenges to any of the elements of the theory that they think are inappropriate.
RAY SUAREZ: David Baugh, several of the counts that Moussaoui faces carry a possible sentence of death. Why is it important for the federal government to affirm that it's going to seek the ultimate penalty and how does that help the defense?
DAVID BAUGH: Well, just because he's charged under a given statute which has the availability of death does not mean that he is, quote, death eligible. Under the statute, as Peter pointed out, the government must file a notice of its intention to commit, to seek the death penalty because when the statute was prepared, every murder is not a death murder.
The death penalty deserve for those murders which have peculiar factors in it which take it out, for want of a better word, the heartland of usual murder cases and aggravate it to the point where death should be sought. So by giving a list of what those aggravators are, what factors the government is alleging makes this a less than ordinary murder case, notice must be given under the Constitution so that a defendant can either explain them or resist them or rebut them.
RAY SUAREZ: Has this kind of charge always carried the possibility of a death sentence, Peter White?
PETER WHITE: No, the conspiracy charges that are brought here are relatively new to the law. And the death penalty has only been in existence for those potential charges for about the last decade. So all the death penalty statutes and frameworks in the country were basically thrown out in 1972. And the Congress started going back to authorizing death penalty prosecutions in the mid '80s and then again in the mid 90s, which is when the statutes that give rise to these charges were enacted.
RAY SUAREZ: In legal terms and as a practical matter, is this an added burden for the prosecution now?
PETER WHITE: It certainly is in both factors and for the defense. It is not a surprising change to the dynamic, but it changes the dynamic from the way the trial is otherwise. The stakes are far different, and the type of proof that you're going to need is far different. You now have instead of one trial on the guilt or innocence of the accused, you have two trials potentially. One on the guilt or innocence and then if found guilty of a death eligible count, a separate trial that will begin right after it on whether or not he should be given the ultimate sanction: A death sentence.
RAY SUAREZ: And does this make the defense's job in any way easier in a way that is sort of proportional to the added burden on the other side?
DAVID BAUGH: No, there are a couple of differences in a death case. One, because this is now a death eligible cause because the government filed its notice, you're going to have a death eligible jury. People who would not give the death penalty are not permitted to sit on a death eligible jury. Historically and statistically people who are in favor of the death penalty are normally pro prosecution or pro conviction, we'll say. They're more likely to convict. By filing the death notice, the likelihood of conviction in a typical death case is ratcheted up a little bit.
RAY SUAREZ: Now Zacarias Moussaoui was in jail when the 19 hijackers climbed on planes the morning of September 11 and crashed them into New York, Washington and Pennsylvania. How can he be charged as if he committed the crimes under these counts?
PETER WHITE: The Congress, in enacting the conspiracy statutes that he's charged under, made it clear that in an appropriate case someone who is guilty of a conspiracy or an attempt to commit certain offenses can eligible for the death penalty. So it's clear that Congress intended that people who conspire to do acts of mass terrorism, acts of aircraft piracy can be death eligible even if that crime is not completed.
There has to be a death in the end for it to be death eligible, but the conspiracy alone has been authorized by Congress as a death eligible offense. What the prosecution is going to argue is that his role in that conspiracy, his act in joining that conspiracy, was an essential part of what led to September 11. And without the Zacarias Moussaoui, the conspiracy would not have been able to achieve its objectives.
DAVID BAUGH: Which isn't exactly new law. As Peter knows under the old 371 conspiracy statute before this, if you and I agreed to commit a crime and if one of us did an act in furtherance of that crime, then even though up didn't do the act both of us could be charged as though we were one person. And what they're doing here is the same sort of thing except they're doing it on a death standpoint. However, you could only be charged in a conspiracy and held accountable for those actions that I took, which were reasonably foreseeable.
So the question here is not that Zacarias Moussaoui buy into a conspiracy but when he bought into this conspiracy, did he know that there was going to be an attack in the United States, were there going to be Americans killed or is it just as likely he thought he was going to learn how to fly a plane in Chechnya or in Saudi Arabia or Israel? They have to prove that he knew this was foreseeable and that he bought on to this conspiracy, bought into the conspiracy, with those issues in mind or reasonably in mind.
RAY SUAREZ: Now we have tapes of Osama bin Laden provided by the United States government itself saying that the conspirators didn't know what they were doing until very close to the commission of the crime. Zacarias Moussaoui was in jail. Does that give some challenges to the prosecution?
PETER WHITE: Well it seems to me very likely that the defense will make that assertion during the penalty phase of the case, if they get there. One of the mitigating factors they will point to is that he did not directly participate on September 11 -- at least as far as we know in the acts that happened on that day --because he had been in custody for some time prior to that.
That's a mitigating factor that the defense will try to weigh against whatever aggravating factors the government is able to prove. Whether they can use Osama bin Laden's statement to that effect or not, I think they will certainly try to at that point in the case. Does that present a challenge for the government? Certainly because the government is going to have to prove in proving the threshold factors to determine if he's death eligible that Zacarias Moussaoui's acts directly resulted in the death of the victims.
RAY SUAREZ: Now let's say, go ahead, I'm sorry.
DAVID BAUGH: I was just going to say that I would disagree with Peter to a certain extent, and that is that I believe that the issue of foreseeability goes actually to guilt not just punishment. In order to be found guilty of the conspiracy, they must prove that he bought into the conspiracy reasonably foreseeing what was going to happen. If it cannot be proven --
RAY SUAREZ: And that's in the conspiracy, the way the conspiracy count is described.
DAVID BAUGH: That's in the conspiracy count. You can't join in a conspiracy and not have a clue as to what's going on. And so I think that if the law is followed, if American jurors are capable of the honesty I've grown to expect from them in 26 years, I believe that Dave Novak and the prosecution could have a problem in the guilt phase.
RAY SUAREZ: Even if he's found guilty and if the death sentence holds, has this law been tested, the use of the statute in this way?
DAVID BAUGH: You mean stretching it that far.
RAY SUAREZ: Taking the conspiracy count to a death case at the federal level.
PETER WHITE: The only time it's happened before that I am aware of is in the Terry Nichols prosecution from the Oklahoma City bombing. In that case, if you'll recall, Terry Nichols was charged with substantive murder counts in the federal trial in Denver, Colorado, and was also charged with conspiracy to murder. He was acquitted on the substantive murder counts, and only the conspiracy charge, only that conviction went to the penalty phase. And if you'll recall he ended up getting life in prison without parole as a result.
The jury did not go for the death penalty. So the prosecution in that case, that theory existed in the Oklahoma City case as well where it was the conspiracy charge that could have led to the death verdict. I think the prosecution expected it in that case that they would be able to prevail on the substantive murder charges which is the most traditional route for a death verdict at the sentencing phase.
RAY SUAREZ: And, David Baugh, quickly, do you think this will end up in a higher court?
DAVID BAUGH: I think it has to end up in a higher court. Not only are we talking legal issues here but also political issues. The more important question is is it necessary, I mean will killing this young man actually make the world safer?
RAY SUAREZ: David Baugh, Peter White, thank you both.
PETER WHITE: Thank you, Ray.