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After hijackers crashed American Airlines Flight 77 into the Pentagon, thick black smoke poured into the blue sky. The ominous cloud shadowed the wreckage of Sept. 11, 2001, and was clearly visible from the federal courthouse in nearby Alexandria, Va. Inside that same courthouse, 4 1/2 years later, Zacarias Moussaoui will go on trial to learn if he will be executed or spend the rest of his life in prison for his role in the attack. But before Moussaoui’s fate is determined, a jury of 18 individuals must be chosen — an undertaking that experts and even the lawyers involved are calling a daunting prospect. Impaneling an objective jury to decide the punishment for an admitted al Qaeda member linked to the deadliest terrorist act in U.S. history presents a challenge, to say the least. Doing so a few miles from one of the attacks could be impossible. “I think you will hear that many prospective jurors have personal stories to tell about how they were affected or how they know people who were,” says Julie Howe, a New York jury consultant with experience working on both terrorism and capital cases. Moussaoui, 37, pleaded guilty in April 2005 to conspiring with the Sept. 11 hijackers. Jury selection for the penalty phase began last week, when nearly 500 potential jurors reported to the U.S. District Court for the Eastern District of Virginia to fill out in-depth questionnaires soliciting their views on terrorism, religion, the U.S. government, and, of course, the death penalty.
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Sprinkled among the 159 questions asked of prospective jurors were several that probed for potential biases and strong political views: Do you believe Islam endorses violence? Do you have any negative feelings toward Muslims? Do you believe it’s acceptable for the U.S. to use coercive interrogation techniques as part of its war on terror? With the questionnaires complete, lawyers for both sides now are scrutinizing the answers to determine who will be called back for individual voir dire, which begins this Wednesday and is expected to last several weeks. Opening arguments in the trial are slated to begin March 6. As in all capital cases, any potential jurors who state that they are incapable of imposing the death penalty under any circumstances are stricken. Then, individuals with a direct connection to Sept. 11 — those with friends or family who were killed or injured — are dismissed, along with those who acknowledge they cannot be impartial. “I wouldn’t be surprised if only a third are even qualified to sit by the time you go through people’s experiences and attitudes,” says Howe. “I think a number of people will say, �I just can’t be fair.’” After the obvious cuts are made based on the questionnaires, the prosecution and the defense will be given 30 opportunities each to strike jurors. TOO CLOSE TO HOME? The process is grueling for both sides, but it’s safe to say the bigger burden lies with Moussaoui’s legal team. “They have the job of ferreting out the smallest detail about a juror that might make a difference. The government can more or less proceed in broad strokes,” says Jeffrey Frederick, a jury consultant who worked briefly with Moussaoui’s defense team early in the case. Many potential jurors likely will exhibit a blatant bias that’s easy to detect. It wouldn’t be surprising if a few came right out and said Moussaoui — the only person ever charged in connection with Sept. 11 — should pay for the crime with his life. Others might harbor less obvious prejudices, making it necessary for the defense to dig deep for information. The proximity of the Pentagon to the homes and workplaces of potential jurors further complicates the matter. “People would drive by the reconstruction of the Pentagon, and for so long there was this gaping hole reminding them of what happened,” he says. Given all of these factors, Frederick is skeptical. “To get an entire jury that’s open-minded, I don’t think is possible.” But, he says, it only takes one juror to prevent a defendant from being put to death. When asked about the likelihood of impaneling an impartial jury, Gerald Zerkin, Moussaoui’s lead attorney, declined to answer, although he says his team is taking every measure and working countless hours to achieve that goal. “The sheer volume of jurors that have been called in and the size of the questionnaire obviously make it a monumental task,” Zerkin says. While Zerkin wouldn’t talk about jury-selection strategy, Frederick says the defense team likely is looking for individuals willing to question the government’s case for death. During trial the prosecution is expected to argue that had Moussaoui told law enforcement about the planned attacks upon his arrest in August 2001, he could have prevented the deaths of nearly 3,000 innocent victims the next month. The defense, on the other hand, claims their client had no direct involvement in the attacks and that the U.S. government knew more about al Qaeda’s plans than Moussaoui did, yet failed to act. Under the law the jury must be convinced that Moussaoui is directly to blame for the attacks in order to impose the death penalty on him. Moussaoui, a French citizen born in Morocco, admits to being a member of al Qaeda but denies he was involved in the Sept. 11 plot. Instead he claims he was to participate in a later attack by flying a plane into the White House. During trial the prosecution plans to call dozens of victims’ relatives to testify. For that reason the defense will seek jurors not easily swayed by emotion, Frederick says. Another factor complicating jury selection for the defense is the large population of U.S. military personnel and federal government employees in the jurisdiction. With the Pentagon and the Central Intelligence Agency located in Northern Virginia, as well as an abundance of federal agencies across the Potomac, it’s likely the jury pool will include a substantial number of individuals with connections to the government. That’s the reason Moussaoui first filed a motion requesting a change of venue, in April 2002. Moussaoui, who at the time was representing himself and who has since refused to cooperate with appointed counsel, indicated in a hand-written court filing that his case should be moved to a more neutral location because of an “over-representation of loyal government employees.” He also suggested that because of the attack on the Pentagon, there was more media attention locally compared with other parts of the country. In response, Assistant U.S. Attorney Robert Spencer argued that prejudice should not be presumed because of publicity or the composition of the jury pool. “There is no indication that any other district would be less affected by the publicity . . . generated by the terrorist attacks.” U.S. District Judge Leonie Brinkema agreed with the prosecution, saying she’s confident it will be possible to impanel an effective jury in Northern Virginia. A NEW TEMPLATE Because of the magnitude of the events in Moussaoui’s case, it’s difficult to directly compare his trial with any other criminal matter. But one high-profile case that prompted similar concerns regarding pretrial publicity and the potential for a prejudiced jury was that of convicted snipers John Allen Muhammad and Lee Boyd Malvo. During the fall of 2002 the pair embarked on a random shooting spree in and around Washington that left 10 dead and three wounded. Lawyers for Muhammad and Malvo, who were tried separately, argued their clients could not get a fair trial in the same area where, for three weeks, residents were gripped with fear. In both cases, judges agreed to move the trials to other parts of Virginia. Although Malvo’s attorney, Michael Arif, was concerned about moving the case to a more conservative district, it was a chance he was willing to take. The move turned out to be a good decision for his teenage client, who was sentenced to life in prison, rather than death. The change of venue, however, did not help his older accomplice, who was sentenced to death. Another prosecution considered comparable to Moussaoui’s case is that of Timothy McVeigh, who was convicted in 1997 of murder and conspiracy for his role in the bombing of an Oklahoma City federal building that killed 168 people. A judge ordered that McVeigh’s trial be moved to Denver because the effects of the blast on Oklahoma City were so profound that he could not receive a fair trial there. He also noted that though the explosion initially received vast media attention, nationwide coverage eventually waned compared with the continuing local coverage of the victims and their families. Despite the change of venue, the jury sentenced McVeigh to death, and he was executed in 2001. As for Moussaoui, his case might actually benefit from being tried in Alexandria, according to Joseph Bowman, a former Northern Virginia defense attorney and current assistant D.C. Bar counsel. That’s because no jury has ever handed down a death sentence in the federal courthouse in Alexandria. In other federal courts throughout Virginia — including those in Richmond, Roanoke, and Norfolk — juries have imposed the death penalty. Based on the numbers, the defense has history on its side. “Then there’s this case,” says Bowman, adding that Sept. 11 was so horrific that the prosecution just might win its first-ever federal death penalty case in Alexandria. “This case is so different than anything else that’s ever been presented, so it’s all up in the air.”

Sarah Kelley can be contacted at [email protected].

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