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Whether Zacarias Moussaoui will live or die is the decision that’s expected any day. And soon after that verdict is reached — regardless of the outcome — U.S. marshals will usher Moussaoui, in shackles, out of the Alexandria, Va., jail and onto an airplane. The destination of that flight, however, depends on Moussaoui’s fate. If all 12 jurors agree to spare his life, or if they cannot reach a unanimous decision, Moussaoui will spend the rest of his years behind bars, possibly in the maximum-security prison in Florence, Colo., which houses some of the nation’s most dangerous federal prisoners. But if they unanimously vote for death, Moussaoui likely will end up in Terre Haute, Ind., where the majority of the nation’s 43 federal death row prisoners are being held while awaiting execution by lethal injection. It’s a wait that can drag on for years because of a lengthy appeals process. Most federal death row prisoners at the Terre Haute facility have been there at least five years, some more than a decade. But for the few who opt not to appeal, justice is much more swift. If handed a death sentence, Moussaoui might accept his fate without a fight, opting instead to die a martyr, which is exactly what his lawyers claim he wants. Such a move could bump the confessed terrorist to the front of the line on federal death row. “He could be killed this year,” says David Bruck, a member of the Federal Death Penalty Resource Counsel and a law professor at Washington and Lee University. U.S. Justice Department policy indicates that when appeals are waived, the earliest date of execution would be two months after the judgment of death is issued. But even with a waiver, that would be extraordinarily quick to carry out a death sentence. Once all judicial matters are settled, it’s up to Federal Bureau of Prisons Director Harley Lappin to set a date for execution, according to BOP spokesman Mike Truman. Lappin was appointed to the position by then-Attorney General John Ashcroft in 2003. No stranger to federal corrections, he began working at BOP as a case manager more than 20 years ago. Moussaoui is the only person ever charged in connection with the Sept. 11, 2001, attacks. The confessed terrorist, who was in jail on immigration charges when the plane hijackings were carried out, pleaded guilty in April 2005 to six conspiracy charges relating to the terror plot. Last month a jury in the U.S. District Court for the Eastern District of Virginia determined Moussaoui was eligible to receive the death penalty. Now that same jury is deliberating whether that’s the penalty he should receive for withholding details about the plot from the FBI. Before reaching a verdict, the jury must carefully review a complicated 42-page verdict form that lists each aggravating and mitigating factor presented by prosecutors and defense lawyers. A federal jury in this Alexandria courthouse has never imposed a death sentence. Moussaoui’s frequent outbursts in court — as well as past statements relaying his belief that execution will lead him to paradise in the afterlife — have led some to believe that his goal is martyrdom. But at the same time, his erratic behavior makes it difficult to contemplate his next move with any certainty. Moussaoui has proclaimed several times that he believes President George W. Bush eventually will release him as part of a prisoner exchange, allowing him to return to London. If sentenced to death, there’s a chance Moussaoui would welcome the opportunity to fight, which could mean years of appeals and additional headlines. On the other hand, his execution, like Timothy McVeigh’s, would become a must-see media event and perhaps give Moussaoui the kind of platform he may ultimately desire. COLORADO OR INDIANA A punishment of life in prison likely would land Moussaoui in the Bureau of Prison’s “supermax” facility in Florence, where Oklahoma City bomber McVeigh was jailed before being sentenced to death and where failed shoe bomber Richard Reid is imprisoned. A death sentence would likely lead to Terre Haute, where BOP opened a new facility in 1999 to house prisoners facing execution. The U.S. Marshals Service would not say whether there are plans to transport Moussaoui to either of these facilities after a verdict, but lawyers experienced in handling capital cases say those are the most likely destinations. “We can’t confirm where we’re taking him or when we’re handing him off until it’s done,” says Dave Turner, a U.S. Marshals spokesman. “This case is the textbook example of why you wouldn’t want to announce that.” Turner did confirm, however, that Moussaoui could be on one of the U.S. Marshals’ “Con Air” flights — the name commonly used for planes used to transport prisoners — soon after a verdict is announced. During the past 40 years only three federal prisoners have been executed. But the number of federal death sentences is on the rise as a result of a 1994 law that largely revived capital punishment in the federal system. If Moussaoui is sentenced to die and he forgoes an appeal, efforts to spare his life might go forward without his consent. “In Moussaoui’s case, I don’t think he would just waive his right to appeal and that would be the end of the matter,” says Sean Connelly, a former federal prosecutor and now a name partner at Reilly Pozner & Connelly in Denver. “I’m sure there would be questions about his competency that would have to be addressed,” adds Connelly, who helped prosecute McVeigh. In 1997, McVeigh was convicted, and he was executed in 2001 after dropping all appeals. In recent years there have been a number of unsuccessful attempts by third parties to intervene on behalf of death row inmates who waived appeal. In 1990 the U.S. Supreme Court ruled in Whitmore v. Arkansas that death row inmate Jonas Whitmore did not have the right to pursue an appeal on behalf of fellow prisoner Ronald Simmons, who refused to challenge the death sentence he received for killing 14 members of his family. Simmons was executed by lethal injection in Grady, Ark., on June 25, 1990. Years earlier, Bessie Gilmore, mother of convicted killer Gary Gilmore, claimed her son was mentally unstable when he declined his right to appeal in 1976. The high court considered Bessie Gilmore’s request to stay the execution and concluded that her son was competent. He was killed by firing squad in Utah later that year. Gilmore’s story was recounted in The Executioner’s Song, a popular nonfiction book by Norman Mailer that was published in 1979. Despite failed attempts by third parties to intervene in previous cases, death penalty expert Bruck says that Moussaoui’s lawyers might actually have a shot at convincing a court he’s incompetent. “The defense has not been blowing smoke in raising issues of competency,” Bruck says. “I think they have very serious reasons to believe that his thinking is disordered.” For one, Moussaoui’s lawyers, or possibly a family member, could ask U.S. District Judge Leonie Brinkema to conduct a hearing to evaluate his mental status. But experts say that would be difficult. “The problem is, he was found competent to stand trial, so unless they’ve found something new, the court is likely to refuse to even hold a hearing,” says Richard Deter, executive director of the Death Penalty Information Center. “It’s hard to get a ruling that you’re incompetent to waive appeals.” GROUNDS FOR CHALLENGE Should Moussaoui choose to fight a death sentence, he must first file a notice of appeal with the trial court within 10 days of the verdict. It could take up to a year for the U.S. Court of Appeals for the 4th Circuit to review the appeal and then several more months for the court to rule. The most obvious grounds for appeal would be whether failing to tell the FBI about plans for Sept. 11 is a crime punishable by death, according to experts in the area of capital appeals. Other aspects of the trial that might be appealed, they say, include the emotion-charged testimony presented by the government, which could be seen as prejudicial to the defense, as well as the fact that Moussaoui wanted to defend himself but was denied. If the 4th Circuit were to deny the appeal, lawyers could petition the Supreme Court. And if that fails, the final step would be to pursue a federal habeas corpus appeal, which raises constitutional claims, such as improper use of the death penalty or ineffectiveness of counsel. “After that, the president could grant clemency, and that’s about it,” says Deter.
Sarah Kelley can be contacted at [email protected].

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