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Toobin: Dire result likely for Moussaoui

'Much easier burden for government in next phase of the trial'

CNN senior legal analyst Jeff Toobin



Capital Punishment
September 11 attacks
Zacarias Moussaoui

(CNN) -- A federal jury decided on Monday that admitted al Qaeda terrorist Zacarias Moussaoui is eligible for the death penalty, tying him directly to the September 11, 2001, terrorist attacks.

CNN anchor Wolf Blitzer discussed with CNN senior legal analyst Jeff Toobin the legal issues in the first U.S. trial related to the 9/11 attacks and the prospects for a death sentence.

BLITZER: They are going to continue this trial, bring in other witnesses, and make a final determination ... whether or not [Moussaoui] will be [executed].

TOOBIN: That's right, Wolf. And for the government, phase one was much, much tougher than phase two will be. This is where the government had a lot of problems. They are not going to have a lot of problems, I suspect, on phase two, because basically what phase two is, is a comparison of aggravating factors and mitigating factors.

And what that means in plain English is: How bad was this crime? And the government is going to call apparently more than 40 witnesses to testify about just how horrible 9/11 was.

And according to the words of the statute, was it especially heinous, cruel and depraved? Did it show a reckless disregard for human life? ... It's going to be very hard to argue that 9/11 was not any of those things.

The defense will argue in the mitigating factors that Moussaoui is schizophrenic, [that] he's not capable of participating in a crime like this.

But the causation was really the hard part for the government, and it seems very likely that it will be a much easier burden for the government in this next phase of the trial.

BLITZER: The key question, Jeff: Did his lies directly result in at least one death on 9/11? The answer was, on all of the counts, an absolute yes, unanimous among all 12 jurors.

TOOBIN: And that's what it took. And that's what the trial was almost entirely devoted to, the issue of: Did Moussaoui's lies cause the FBI to fail to catch the plotters? That's what this whole trial was about.

Frankly, the government had a hard time in many points in the trial, but 12 jurors agreed. And now the jury will go back for what at least seems to me, a much easier question and a much more dire result likely for Moussaoui. ...

If I can just add something: I don't think there's much doubt that the most relieved person in America right now is [Transportation Security Administration lawyer] Carla Martin. ... (Full story)

Imagine having it on your conscience that a case of this magnitude might have fallen apart because of your misconduct. That's no longer a possibility.

She is off the hook, and regardless of what happens to the rest of the case, I think it's clear that Carla Martin will be relieved that she wasn't the cause of the government losing this part of the case.

BLITZER: She may be off the hook in terms of the big picture but in terms of possible disciplinary action against her for some of her behavior, she probably won't be off the hook. ...

TOOBIN: That's right. She does face even possible contempt of court charges, possibly even criminal charges, but, you know, imagine having it on your conscience that a crime of this magnitude might go unpunished because of your misconduct. I think that's the likely worst sanction she could face and -- well, who knows? Criminal contempt is pretty bad, too.

BLITZER: That could be a career-ender, to put it mildly.

TOOBIN: That could certainly be absolutely right.

BLITZER: Jeff, let's talk about Zacarias Moussaoui, because as brilliant as the prosecuting team may have been, they got an enormous assist from none other than this man himself, who rejected all the advice of his own defense attorneys and went on the stand and testified and boasted: Absolutely true; I did all of this.

TOOBIN: By far the most damaging piece of evidence in this case was not anything that the government put on; it was Moussaoui's own words. His lawyers -- his court-appointed lawyers whom he has feuded with and denounced and criticized -- begged him not to testify. They said, "Please don't testify. Please just let us handle this." And their advice went unheeded.

And Moussaoui, apparently true to his convictions of being a proud al Qaeda terrorist, said, "Look, I'm going to tell them I was involved in a conspiracy." He did not say he was involved in the 9/11 conspiracy. He said he was planning on using a different airplane to attack the United States. And he was working, he said, with the shoe bomber Richard Reid.

You know, whether any of that is true remains somewhat mysterious, frankly. But his testimony was by far the worst thing for him in the case, but it was his choice. And the jury apparently believed that he was telling the truth, that he wasn't insane, that he wasn't deluded, that he wasn't schizophrenic -- that he was telling the truth, and that's what sunk him in this case.

BLITZER: Some have suggested that he was in effect committing suicide by that testimony, knowing that he would be eligible -- if the jurors believed him -- [for] the death sentence.

TOOBIN: Well, that's certainly a possibility. ... His execution became far more likely as a result of his testimony. Now, what his thought process was ... whether he really wants to die, that is far beyond what I know. But certainly it's plausible that the testimony was a form of suicide.

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