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Toobin: Moussaoui verdict a 'black eye'

But message of ruling could work to benefit of United States

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CNN senior legal analyst Jeff Toobin

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(CNN) -- The jury in the case of al Qaeda conspirator Zacarias Moussaoui recommended Wednesday that he should receive life in prison rather than the death penalty for his role in the attacks of September 11, 2001, on the United States.

CNN anchor Wolf Blitzer spoke with CNN senior legal analyst Jeffrey Toobin shortly after the ruling about Moussaoui's fate, the case against him and the message the decision sends.

TOOBIN: I think, on balance, it has got to count as a surprise, given the magnitude of this crime, given the extensiveness of the damage, and the fact that he's the only person who has been tried.

The thing I would zero in on is the mitigating factor that the jury came up with themselves, which was that the defendant had limited knowledge of the 9/11 attack plan.

You know, the fact that Moussaoui was in prison at the time of 9/11, that he did appear, even under the government's theory, to be a relatively peripheral participant -- if you listen to all the jury's findings, I think that was the key aspect of this trial on the defense's behalf.

And I think that was the one that persuaded at least one juror. And we don't know how many jurors it was. Given this vote, it sounds like there were certainly at least some, and perhaps even a majority, of jurors who wanted the death penalty.

But it seems like at least one of them was persuaded that Moussaoui was simply too minor a player to execute.

BLITZER: [Is it] already clear which federal prison he will be spending the rest of his life in?

TOOBIN: Well, that's ultimately up to the Bureau of Prisons. But it will almost certainly be the Supermax in Florence, Colorado, which is sometimes known as the Alcatraz in the Rockies. It's just outside Denver.

It's where [Unabomber] Ted Kaczynski is. It's where Terry Nichols, the Oklahoma City [bombing conspirator], is. It is a place of extraordinary security, 23 hours a day in cells, one hour of recreation. There has never been an escape. There has never been anything close to an escape.

It is as close to permanent solitary confinement as exists in our prison system. And it's not much of a life. It's not being executed, but it's pretty darn bad.

BLITZER: Given the heinous nature of this crime, presumably, he's going to be in solitary confinement, as you point out, 23 hours a day, and very limited contact with prisoners, even during that one hour a day of recreation. ...

TOOBIN: Absolutely, Wolf.

Everyone in Florence is in solitary confinement. The recreation is individual. They have a television set in their cells that programs only religious and certain educational programming that's approved by the prison.

It's so restrictive that, you know, anything else in the federal system pales in comparison. So, I'm sure there are many people who are disappointed that he's not going to be executed. But, as was presented to this jury, that is a form of death. And he will die in prison. He will just die later, rather than sooner. ...

BLITZER: You used to be a U.S. federal prosecutor. They [the prosecutors] really wanted the death sentence for this guy. They didn't get it. How much of a disappointment does it have to be for them, Jeff?

TOOBIN: It's an unusual circumstance, because when I was a prosecutor I was taught that, you know, winning and losing is about guilt or -- a conviction or no conviction. You won if you got a conviction, and the sentence was really sort of in the hands of the jury and out of your hands, and you didn't really worry about that that much.

This is different. The entire federal government mobilized. ... This was an enormous federal prosecution effort geared towards getting a sentence of death.

That's all that was on the table here. And the Justice Department invested millions of dollars, thousands of people, and they lost. ...

It certainly wasn't from lack of effort. I think one question people are going to raise is whether this case was simply overcharged, whether Moussaoui ... who some jurors viewed as a minor player, was assigned so much more possibility than he really had, that the case should not have been structured this way.

But he was the only person available, apparently. And they tried to get a death sentence. They devoted enormous time, money, effort, and they didn't get it. So, it's certainly a loss for the Department of Justice.

BLITZER: Normally, after a trial like this, we wind up eventually hearing from the jurors what was going through their minds, what they felt, how the votes were going down. In this case, the jurors are all anonymous for obvious reasons. They are concerned, potentially, I assume, for terrorist reprisals against them.

Are they going to remain anonymous? Is that the deal that was struck?

TOOBIN: I would be shocked, Wolf, if we don't hear from these jurors sooner rather than later. There are anonymous juries all the time, even in big terrorism cases, in Mafia cases. In the Oklahoma City bombing cases, you had anonymous jurors there, but eventually, and usually soon, they wind up coming forward.

So, I expect we will hear very soon from at least some jurors, and they will take us [from] what the breakdowns on these votes were, because just from hearing the votes on the aggravating and mitigating factors, that doesn't really tell you for sure what the ultimate vote on the death sentence was. But I suspect they will come forward soon. ...

BLITZER: We had assumed that after the first phase of this sentencing trial, when the jurors decided he was eligible for the death sentence, that that was going to be the hard part -- this part would be relatively easy. It didn't turn out that way.

TOOBIN: It just shows what we know, Wolf. I mean, these jurors, they operate in their own world. They're supposed to be completely isolated, and they are. And they come up with their own conclusions. ...

This is a black eye for the Justice Department in losing this case, but this could actually turn out to be the benefit of the United States in a broader sense, because we have spent so much time, appropriately, on the defensive of about how we've treated prisoners in Abu Ghraib and in Guantanamo [military prisons] and in the war on terror. ...

We had the American due process system at work in public, and I think -- in spite of Moussaoui's appalling behavior, and what he said he did ... the system didn't give him the ultimate punishment.

And I think the message that that sends may be better received outside this country, at least, than if this had been a death sentence.

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