September 11th Defendant Throws Case Into Turmoil
Demand to represent himself sets up appeal, public relations disaster
by Laura Sullivan, Baltimore Sun National Staff, April 27, 2002
WASHINGTON – This week’s courtroom lecture by Zacarias Moussaoui, the only man charged so far in the Sept. 11 attacks, and his demand that he be his own lawyer could set the stage for a nightmarish scenario for both his defense and prosecutors, government officials and legal analysts say.
Moussaoui startled the federal court in Alexandria, Va., by raising his hand and unleashing a 50-minute speech in which he called for the “destruction of the United States of America” and warned that he would “fight against the evil force of the federal government.”
He declared Monday that his attorneys were part of a conspiracy and said he wanted to represent himself.
Justice Department officials are reeling at the notion that Moussaoui, who has been denied outside contact for fear he could slip a message to other followers, might have found a worldwide microphone for al-Qaida and Islamic militancy.
Without a proper defense and with no assurance of decorum, officials fear the trial could become a public relations debacle for the administration, which had hoped the case would showcase the fairness and integrity of the American legal system.
Most alarmingly, prosecutors have begun to examine the troubling legal implications of Moussaoui’s demand, such as whether he would have access to classified information that could aid his defense.
A Justice Department official said Moussaoui’s outburst and request came “out of left field,” and officials did not appear to be prepared for it. The government is seeking the death penalty against Moussaoui despite a largely circumstantial case that a defense team would have had the chance to undercut.
Justice officials, used to preparing for defendants who act in their own best interests – not those who try to martyr themselves – have been scrambling to figure out how to respond. Earlier this week, Moussaoui asked to speak with prosecutors about the death penalty and classified information, but prosecutors refused.
Legal analysts say the situation promises to be a problem for the government’s presentation of its case as well. Inexperienced or unpredictable defendants who represent themselves in court can often make the government look like a bully – an especially worrisome notion for prosecutors who want, against the wishes of most Europeans, to execute Moussaoui.
Moussaoui, 33 and of Moroccan descent, is a citizen of France, where the death penalty is illegal. As a result, French officials have said they will not provide full cooperation to the United States in its case.
It’s possible, analysts say, that the trial verdict might be less important to Moussaoui than the chance to stand in an American courtroom and unleash verbal attacks on Western society.
“There is a diabolical logic to firing his attorneys,” said Robert E. Precht, a defense lawyer in the trial of the World Trade Center bombers in 1994. “Moussaoui probably sees his trial as a platform for his anti-American and anti-Israeli views. And his attorneys would have been an unwanted filter.”
Without those attorneys, Precht said, Moussaoui stands a better chance of making a mockery of U.S. justice.
“Defense attorneys give legitimacy to the process,” Precht said. “Without them … a man representing himself will look like he was railroaded and not given due process. It’s a public relations disaster.”
From a strictly legal standpoint, Moussaoui’s outburst is difficult to understand. Steven Lubet, a professor at Northwestern University Law School, said that defendants who represent themselves “have either an extreme mistrust of the system or are narcissistic.”
“And they have two chances of winning,” he said. “Slim and none.”
Until Moussaoui’s courtroom demand, the case against him seemed ripe for a competent defense attorney to challenge.
The government has accused Moussaoui of conspiring with Osama bin Laden and the 19 hijackers to carry out the attacks on the World Trade Center and the Pentagon. But Moussaoui was in jail on immigration charges at the time, and authorities have not established any direct contact between him and any of the hijackers.
Jonathan Turley, a law professor at George Washington University who frequently serves as counsel in national security cases, suggested that Moussaoui’s indictment hinges on incidents that might be explained away as non-criminal behavior.
Without a trained defense attorney to present them, the possible merits of Moussaoui’s case might be ignored by the court.
“The defense, the prosecutors and the court are all looking at a total nightmare in this case,” Turley said. “It could easily become a circus of the absurd.”
Judge Leonie M. Brinkema warned Moussaoui against acting as his own lawyer but said she was inclined to grant his request if a psychiatric exam found that he was competent.
Prosecutors likely want Moussaoui found competent. If he were declared incompetent, Turley noted, defense attorneys would argue that he should not have to stand trial, let alone be put to death.
If, on the other hand, the trial goes forward with Moussaoui as his own attorney, Brinkema said she would require his current lawyers to remain at his side for legal help even if Moussaoui never calls upon them.
Still, the legal quandaries surrounding Moussaoui’s self-representation remain murky.
The government would surely argue against granting Moussaoui, who is charged as a terrorist, clearance to see the classified evidence his attorneys had already been cleared to review. In some recent trials, defense attorneys have been allowed to see prosecutors’ classified evidence if they swore that their clients would not.
The government has been putting this practice into effect most recently in the cases against detainees held on immigration violations in the United States and in cases against Muslim charities. But at no time in memory, analysts say, has the government tackled the issue of classified evidence when the defendant was his own lawyer.
A decision by prosecutors to bar Moussaoui from reviewing evidence as he prepares his defense, Turley said, would likely produce an automatic appeal of any conviction to a higher court.
The defendant would also have a strong case for having his appeal heard if he were frequently thrown out of the courtroom for indulging in diatribes and thereby missed some of his own trial, Turley said.
Federal judges tend to have little patience for efforts to thwart the judicial process and will remove unruly defendants or their lawyers, if only to prevent the defendant from engaging in outbursts that prejudice his own case.
“There’s something about [the prospect of] calling for mass murder against Americans that will have a prejudicial effect on an American jury,” Turley said, which would lead a judge to remove the defendant from the courtroom.
Whatever happens, the trial of Moussaoui is already off to a bizarre start, Turley said.
“It’s almost comical what he did,” Turley said. “He stood up there and called the judge a ‘field general of death’ and then asked her for a bench trial.”