Moussaoui Jurors Mouthing Off

We have known since we read their verdict form last Wednesday that jurors in the Zacarias Moussaoui terror conspiracy trial were a complex and contradictory lot. Eleven of them, for example, didn't consider Moussaoui "incarcerated" on 9/11 even though he was sitting in a Minnesota jail at that time. And despite clear language in the form that said it to be true, only five of them predicted that Moussaoui would remain in prison for the rest of his life even if he were spared a death penalty. They were like a box of chocolates, those jurors, and we just never knew what we were going to get.

What we are getting this morning is news from the the jury foreperson that only one juror stood between Moussaoui and a death sentence. According to Timothy Dwyer's piece in the Post, the dissenting juror "never explained his vote" and frustrated the other jurors by refusing to disclose the reasons behind his stand. Meanwhile, the Post reports, a juror who voted for life -- perhaps the one the foreperson is talking about, perhaps not -- responded by telling Dwyer that the panel "differed in the way we interpreted the things we saw and heard." Welcome to the jury system, folks, where getting 12 people to agree on what to order for lunch can sometimes prove fruitless.

I would take all of this back-and-forth with a huge dose of salt and in the end, of course, none of it matters. The foreperson complained to Dwyer that "it was as if a heavy cloud of doom had fallen over the deliberation room, and many of us realized that all our beliefs and our conclusions were being vetoed by one person." Drama aside, that's precisely how the jury system is supposed to work. If the government, even in a death penalty case involving an Al Qaeda bagman, can't convince every single juror to vote for death the government doesn't get its capital sentence. I can understand the foreperson's frustration that she didn't get to see her will imposed. But there are plenty of jurors in plenty of cases who don't get their way.

Another reason why I'm not entirely buying this post-hoc rationalization is that the foreperson could have gone to the judge during deliberations and notified the court and the lawyers that there was a jury who was refusing to deliberate. That would have certainly prompted the judge to push all of the jurors to deliberate and that might have flushed out the dissenter and perhaps fostered the dialogue that the foreperson wanted. Also, no one forced jurors to anonymously record their votes inside the jury room. And, finally, it's worth remembering that three jurors actually added to the "mitigating factors" on the verdict form that they believed Mousssaoui "had limited knowledge" of the 9/11 plans. That means, if you believe the foreperson, that two of those people still were willing to vote for death. And so now we know that the deliberations were as messy and as muddled as was the trial itself.

By  |  May 12, 2006; 10:30 AM ET
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"And so now we know that the deliberations were as messy and as muddled as was the trial itself".
May be because the purpose of the trial was to exact revenge rather then justice.The fact is, that no one will ever be able to bring the ones directly responsibles for Sep/11 to justice is frustrating(they died in the process).On the other hand, making an example of Moussaoui would have releived a lot of frustration, and this foreperson did confirm that.
Ultimately, a death penalty sentence would have been publicised as a great achievement by this administration,regardless of the fact that this dude is a psychotic nobody wannabe .
What the public must understand is that in counterterrorism,no news is definitely good news, and given the fact that no other attack happened since 2001, i would say that is an achievemnt greater than putting someone to death, although not as exciting.

Posted by: Rami | May 12, 2006 09:43 PM

No matter how small his role in the plot of 9-11 Moussouai should have been put to death. Those who make war on the US should not be tried in civilian courts but put before military tribunals and punished severly.

Posted by: Santiago Matamoros | May 12, 2006 10:36 PM

As a capital-defense attorney who's had three 11-1-for-death life verdicts (2 in the federal system; 1 in NJ) I'm very interested in the stories about the Mussaoui verdict, which is sure, BTW, to revive congressional interest in declaring a "hung" federal penalty jury as permitting a new penalty trial.

The fact that the jurors did not seem to find undisputed facts as established (e.g., that Moussaoui was in custody on 9/11) may check back to the jury instructions. Unless the judge is careful, jurors can get the impression that it is up to them to decide whether something is mitigating, versus whether it is true. Take mental illness where congress has decided that some level of mental illness is a mitigating factor in federal capital cases. A juror should not be able to say to him or herself, "I don't care what the lawyers say, I don't thnk mental illnes should be mitigating and, therefore, I'm not going to find it."

What the jury should be told is that all of the mitigating factors submitted are, if true, mitigating as a mattetr of law (or they wouldn't be submitted) and the jury's job is first to detrmine whether the factor is true and (2) then assign weight to that factor. I've asked for, and gotten, jury instructions that tell a jury that they must find certain factors 12-0 since thetre is not dispute about their truth.

Haven't seen the charge in Moussaoui, so I don't know what the judge did here.

Posted by: David A. Ruhnke | May 13, 2006 09:49 AM

The jury did, indeed, use anonymous voting. That was a group decision. We had many questions to consider and votes to take. First, we had to decide on the aggravating factors. Then, the mitigating factors were considered. Finally, we weighed aggravating vs. mitigating to decide for or against the death penalty. For each question and vote, we discussed the issues and then passed a cup around the table and each threw in our vote. So, in effect, no one "explained" his or her individual vote.

There were, however, some dissenting views voiced. In fact the foreperson is quoted as saying, "most of the arguments we heard around the table were" in favor of the death penalty. She didn't say "all of the arguments". In other words, there were some, but not many, dissenting views. It was up to each juror which views to embrace.

By the way, regarding the mitigating factor that said Moussaoui will be incarcerated for the rest of his life--the 5 "yes" votes meant 5 jurors found the fact proven AND considered it to be mitigating. That's how we interpreted the judge's instructions to us.

Posted by: Juror-USvsZM | May 13, 2006 08:16 PM

The info posted here about the jury's reasoning powers is news to me. How totally depressing!

My ideas run so counter to what is taken to be common knowledge, I have to ask readers to bear with me. Please consider reading the following book about 9/11 by Webster Tarpley:

9/11 Synthetic Terror: Made in the USA

Disclaimer: I have no commercial interest in this book.

Posted by: Bill Giltner | May 13, 2006 10:59 PM

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