The Corner

Moussaoui: On to Phase Ii

The jury verdict this afternoon in the Moussaoui death penalty case is critically important. It means the most difficult chore for the prosecution — viz., establishing that Moussaoui is culpable for the slaughter of 9/11 — has been accomplished. By succeeding, the government gets to move the case on to phase two, where the question is: should the penalty be death?

While it is always risky to predict these things, the next phase should be far easier for the government. It will involve the presentation the government has been preparing for for five years: a graphic depiction of the horror of the suicide hijacking attacks.

This is a very strange proceeding. In most capital cases there is a trial phase, where the jury decides guilt, and a sentencing phase, where the jury decides whether to impose death.

Here, to the contrary, there was no trial, because Moussaoui pled guilty to the charges in the indictment, but that guilty plea did not settle conclusively his culpability for the deaths. Then, the judge bifurcated the sentencing phase — so the government would not get to present its strongest evidence unless the court was first satisfied as to Moussaoui’s culpability. The government has now made that case — with no small thanks to Moussaoui’s own testimony, which (if his goal was not martyrdom) was an unmitigated disaster for the defense.

Now it is on to the strongest evidence — testimony from victims and, no doubt, New York and Pentagon officials, regarding the utter devastation of that day. Against that, Moussaoui will pit whatever mitigating factors he can muster (probably psychological testimony, and pleas from family members that he not be executed). It is not exactly going out on a limb to predict that Moussaoui is in big trouble in that balancing of equities.

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