It is an interesting phenomenon that defense lawyers frequently fall in love with arguments that are attractive to them because they make the government squirm (which criminal defense lawyers thoroughly enjoy) but which really don’t help their clients — indeed, actually hurt their clients because juries tend to be pretty logical and down-to-earth when they deliberate. I think that may be happening in Moussaoui’s case.
The tack of counsel today was to try to suggest that the government knew more about the 9/11 plot than Moussaoui did (based, for example, on info from the mid-90’s about Qaeda wanting to fly a plane into the Eiffel Tower, info that should have alerted agents that some terrorists were in the country, etc.). That’s cute but irrelevant.
First, the issue as far as the death penalty is concerned isn’t whether other people knew more than Moussaoui; it is whether Moussaoui knew enough to be complicit. Anything that gets the jury thinking about how much he knew — even by comparing him to others who might have known more — does not help him.
Second, even if the agents had more information, the jury is going to say: At worst, they didn’t do their jobs well, but they weren’t trying to blow up the country, as Moussaoui was. That is, the comparison may be fun for a defense lawyer to make, but it is ultimately deadly for Moussaoui when normal people appraise it.
I had a very similar issue in my case. The FBI had had an informant planted in the jihad organization that bombed the World Trade Center, but booted him from the investigation a few months before the bombing over what now seems like a trifling personality dispute. Naturally, when the bomb exploded and it came to light that they’d had someone on the inside, they looked awful.
The defense lawyers tried to exploit this with a defense that, for them, must have been fun — a defense built around how incompetent the FBI supposedly was (the idea being that you couldn’t trust a case built by these buffoons). There was just one problem: if the FBI had really been incompetent, logically, it could only have been because they missed neon signs that the defendants on trial were dangerous terrorists — signs that should have been obvious to anyone … including — as it turned out — the jury.
The lesson for lawyers is, alas, the lesson we all learn the hard way: “If it feels good do it” may not be a great life strategy.