X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Zacarias Moussaoui’s jaw-dropping performance April 22 set the course for a trial that could prove disastrous for the government regardless of its outcome. In a virulent, 50-minute speech in open court, Moussaoui — the man government prosecutors say was meant to be the 20th hijacker on Sept. 11 — fired his court-appointed defense team, accusing them of working with the U.S. government to secure his execution. He also informed U.S. District Judge Leonie Brinkema that he plans to mount his own defense. From a strictly legal standpoint, a pro se defense would seem to be a windfall for the prosecution, practically assuring conviction. But politically, last week’s strange turn of events could be a nightmare for the government. Moussaoui’s trial was intended to send a message to the international community that the U.S. justice system can deal effectively and fairly with terrorists. Instead, if his recent outburst is any indication, Moussaoui might try to use the forum to advance terrorist propaganda and to put the American legal system itself on trial. What’s more, say criminal law experts, a pro se defense will raise sticky issues in a case where some evidence may be classified government information. “He’s throwing a monumental monkey wrench into the whole trial process,” says Robert Precht, who represented a defendant in the 1993 World Trade Center bombing. “He’ll use the trial to cast doubt on the fairness of the proceeding, and he’ll be playing to a receptive audience abroad.” Moussaoui’s motion to represent himself is in limbo as he awaits a psychiatric evaluation to determine competence. If deemed mentally sound, Brinkema, who sits in the Eastern District of Virginia, seems inclined to allow Moussaoui to proceed pro se. Such a scenario would place enormous pressure on Brinkema to maintain decorum at the high-profile trial, while still giving Moussaoui the flexibility to put on a defense. “It’s going to be a headache for everyone, but especially the judge,” says Precht, assistant dean of public service at the University of Michigan Law School. “When you have someone representing himself who is not schooled in the rules, there’s a danger the trial will degenerate into an emotional fracas.” One question already facing Brinkema is whether to appoint a Muslim lawyer for Moussaoui, as he has repeatedly requested. While Moussaoui has no legal right to choose his court-appointed attorney, Brinkema could accommodate him. At the April 22 hearing, Brinkema indicated she would ask his current legal team to serve as standby counsel. However, Moussaoui’s lawyers — veteran defense attorneys Frank Dunham Jr., Gerald Zerkin, Edward MacMahon Jr., and Judy Clarke — have asked to be removed from the case if Moussaoui represents himself, so Brinkema may have to consider other options. It is unclear whether Moussaoui would withdraw his request to proceed pro se, if he were given a Muslim attorney. “The amount of discovery is so immense and the legal issues are so complex in this case, it would be a challenge even to an experienced legal team,” MacMahon says. A spokeswoman for U.S. Attorney Paul McNulty of the Eastern District declined to comment. Just last year, Jonathan Shapiro, an Alexandria, Va., defense attorney, served as standby counsel in Brinkema’s courtroom to pro se murder defendant Christopher Andaryl Wills. Like Moussaoui, Wills faced the death penalty. “It was the most difficult experience I’ve ever had in a courtroom,” Shapiro says. “I would never in my life get involved in a situation like that again.” CLASSIFIED INFORMATION In the Moussaoui case, one immediate conundrum will be how to handle classified information during the discovery process. According to a motion filed by the defense team April 24, Moussaoui has already contacted prosecutors seeking classified documents that might be used in his defense. Under normal circumstances, the Classified Information Procedures Act, or CIPA, provides a road map for protecting government secrets in criminal trials. After passing background checks, defense attorneys are granted security clearances, allowing them to review classified information. In many cases involving CIPA, the defendant is a government agent accused of espionage who has already had access to the classified information, making disclosure a nonissue. But Moussaoui, for obvious reasons, is highly unlikely to be granted access to top-secret government material, creating a dilemma for the court. “Moussaoui has a constitutional right to represent himself. He also has a constitutional right to a fair trial, which includes access to evidence,” says Nina Ginsberg, a Virginia defense attorney who recently represented an Australian intelligence worker on espionage charges before Brinkema. “If they don’t give him a clearance there’s a legitimate motion to be made to have the case dismissed. As a lawyer, that’s certainly what I would argue,” Ginsberg adds. A more likely scenario is that Moussaoui’s standby counsel, but not Moussaoui himself, will be granted access to classified evidence. In the Wills case, for instance, Brinkema allowed standby counsel to view witness information that could not be shared with the defendant for security reasons. At least one expert wonders if classified information will present much of a hurdle. “CIPA is designed to work within our system that balances the rights of criminal defendants against national security interests. I don’t think Moussaoui is interested in any of this,” says Elizabeth Rindskopf Parker, former general counsel at both the National Security Agency and the Central Intelligence Agency. “Moussaoui’s court statements suggest he is going to be interested in a political defense that uses the trial as a platform to air political concerns. He believes our entire process is a sham.” FOOL FOR A CLIENT? Moussaoui’s determination to represent himself may win him a platform for political rhetoric, but lawyers say he will almost certainly be convicted if he proceeds without trained legal counsel. Moussaoui may already have damaged his case by making statements in court last week calling for the destruction of Israel and the United States. “I think what happened the other day in court was manna from heaven for the government,” says former federal prosecutor Joseph diGenova, now a name partner at Washington, D.C.’s diGenova & Toensing. “Everything Mr. Moussaoui said is admissible in his trial. He was represented by counsel who advised him not to speak, and he went ahead anyway.” Adds John Nassikas, a former prosecutor in the Eastern District and now a partner at D.C.’s Arent Fox: “It sounds like he’s planning to use this trial as a soapbox, and there will be the opportunity for prosecutors to take advantage of the situation.” But while Moussaoui’s statements may help the prosecution, they present problems for the United States by spreading terrorist views and potentially inciting Islamic extremists. “From the government’s perspective, this is something you want to avoid,” says former Deputy Attorney General Eric Holder Jr., a partner at D.C.’s Covington & Burling. “The world is going to be looking at this trial.” When President George W. Bush authorized the use of military tribunals to try foreign terrorists, a major objective was to avoid the spectacle of open trials where alleged terrorists might broadcast anti-American views. Now the prospect of an alleged member of al-Qaida being permitted to question government witnesses and make opening and closing statements raises the controversial issue of whether the federal court system is the appropriate place to try terrorists. “In my own view, international terrorism falls outside the function of the U.S. court system,” says Parker, dean of the McGeorge School of Law at the University of the Pacific. “The federal court system is designed to work through disputes domestically. Here we have a person who stands outside that system. His interest is in creating political theater.” The irony, say several defense attorneys, is that the case tying Moussaoui to the events of Sept. 11 appears to be largely circumstantial, and Moussaoui’s experienced legal team would have been able to present a compelling defense. “At first glance, the case seems far less overwhelming than the World Trade Center case,” says Precht, who worked for the defense in the 1993 bombing trial. “Had Mr. Moussaoui kept his defense lawyers, they had a lot to work with.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.