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Prosecutors Seeking Third Indictment of Moussaoui

Aired July 16, 2002 - 11:32   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
LEON HARRIS, CNN ANCHOR: We are just getting some other word this morning about developments, coming from the Associated Press we should say here, in the case of Zacarias Moussaoui, the so-called 20th hijacker. The breaking news that we have to report right now is that prosecutors, we understand, are seeking a third indictment of Moussaoui. And we understand they are doing this maneuver because they would like to pursue the death penalty against him, and there was a question as to whether or not that would be possible with the other two charges levied against him. Let's get some more analysis on this.

Our analyst Jeffrey Toobin has been following this morning while we were covering other news. Let's get Jeffrey's insight right on what all of this means.

Jeffrey, what's the word?

JEFFREY TOOBIN, CNN CORRESPONDENT: Leon, this relates to a Supreme Court decision from last month. We talked about it when it happened in June. The Supreme Court ruled that in the cases where the death penalty is charged, the jury, and only the jury, not a judge, has to find every critical part of -- has to make all of the findings necessary for the death penalty, has to be a jury decision, not a judge decision. According the Associated Press, what the prosecutors in the Moussaoui case are doing is they are rewriting the indictment, doing what is called a superseding indictment, so that that indictment tracks how the law now is based on the recent Supreme Court decision.

So at the moment, Moussaoui does not face the death penalty. But what this development seems to indicate, is that the government is very much laying ground work so that he does face the death penalty when he goes to trial, currently scheduled for September.

HARRIS: With that in mind, do you expect the government to also change then and perhaps file other indictments as well in other cases they still have pending. We know the John Walker Lindh case has pretty much been settled since they have come up with a plea agreement. There is one other person, Hamdi, who has also called an American Taliban. Let me see if I can get the names of the others. You understand the other cases, Richard Reid being one of them, the shoe bomber there...

TOOBIN: Richard Reid would be the obvious possibility.

HARRIS: As well as one other case as well, one other person detained without having access to a lawyer or anything yet. You think there would be anything made in tactics with those cases.

TOOBIN: I think it is less likely, because one of the rules of the death penalty, although as we have seen, the rules do change here, is that actual deaths have to have resulted. You can't be executed for attempted murder. Richard Reid, the shoe bomber, fortunately, no one died. And I think it might be legally difficult to ask for execution when no one actually has died.

Moussaoui, of course, even though he was arrested in August, is accused with conspiring as with the September 11th hijackers, so that he is treated as conspirator in the death of thousands of people. So that's why would he would qualify for death penalty. So I think this mostly effects him at the moment.

HARRIS: How about the other one, other name escaping me for the moment was Jose Padilla, the so-called dirty bomber, the guy who was arrested in Chicago, and had been linked to some plot to bring in a so-called dirty bomb or bomb laced with radioactive material and detonate that here in the U.S.

TOOBIN: Again, because, fortunately, we should add, no one died there, I think it is unlikely that the death penalty will come into play.

HARRIS: Let's talk then about the Walker Lindh settlement yesterday. What do you think are the implications of that deal may have with these other cases as well?

TOOBIN: Well, I think that is a classic plea bargain. Both sides got something out of it. John Walker Lindh got a 20 years sentence with good behavior, probably serving 17 or so years. That mean he gets to be released from prison in his late 30s. He gets almost a full lifetime of freedom instead of serving the possibility of life without parole. The government gets to avoid a lot of really very difficult legal questions about trying someone who was caught in Afghanistan. The hearing that was going to take place yesterday, involves the circumstances and the conditions when John Walker Lindh gave his statement to the FBI, whether that was really voluntary. That was a difficult, uncomfortable hearing for the government. They probably would have won. I don't want it give you the wrong impression. But they get to avoid the difficult legal questions also.

The government had been told by the judge in that ways that Walker Lindh's lawyers would be able to interrogate the prisoners in Guantanamo Bay. That's a hornet's nest, allowing defendants to sort of rummage around with prisoners of war. That's something the government gets to avoid now. The Plea bargain really served both sides interest, and I think in a pretty reasonable way.

HARRIS: All right, what do you think is all said about how well suited the American court system would be to handle any sort of terrorism case then?

TOOBIN: Well, see, again this is an example of the government sort of cutting its wrists, because these cases really are difficult. That case was proceeding to trial. It was in the eastern district of Virginia, which was known as the "rocket docket," so it was going fast. But it's not clear that the sailing would have been completely smooth to trial.

Moussaoui, another great variable there, which now is the big terrorism trial of the fall, he is representing himself. If you have a death penalty case with a defendant representing himself, very complicated, very difficult legal issues there. It is going to be a real challenge for the court, essentially, to protect Moussaoui's rights in a way that he probably won't be able to do himself.

HARRIS: Which means that process is going to be protracted quite a bit. You can see that coming down the road.

TOOBIN: Yes, indeed.

HARRIS: Jeffrey Toobin, thank you very much. Take care.

TOOBIN: OK, Leon.

HARRIS: We'll see you later on.

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