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On July 18, U.S. District Judge Leonie Brinkema told accused terrorist Zacarias Moussaoui that she had accepted his plea of “not guilty.” “No. I didn’t make that plea,” Moussaoui protested. “I know,” the judge responded, “but I’ve entered one for you.” In another case, in another context, a judge’s refusal to enter a defendant’s plea and instead enter one of her choosing would bring howls of criticism. In the high-stakes and often confounding case of the accused Sept. 11 conspirator, however, it may have been the only way to ensure justice. And it was the most striking example of how this case has compelled Brinkema to expand her jurist’s role to include that of de facto legal adviser. “You will not be allowed to complain down the road that you were denied a fair trial,” she told Moussaoui that day. Moussaoui faces the death penalty on charges that he conspired with the 19 hijackers who killed more than 3,000 people last Sept. 11. He is representing himself and since April 22 has refused to communicate with the attorneys appointed to assist him. Moussaoui has referred to the case against him as a “parody of justice.” It is Moussaoui’s own conduct, though, that risks rendering his trial exactly that. For Brinkema, protecting the integrity of the judicial process entails protecting the legal rights of the accused — whether Moussaoui likes it or not. It is, as Brinkema has said in court, an “extraordinary” case. Brinkema, of the Eastern District of Virginia, declines comment, but her actions over the past eight months demonstrate an absolute refusal to let Moussaoui do himself in or pervert the process through his confusion, mulishness or ignorance of the law. “Everyone who has watched her would say she has been doing an exemplary job,” says veteran New York defense attorney Ronald Kuby, who was standby counsel for Colin Ferguson, who was ultimately convicted of murdering six people on a Long Island commuter train. Since taking over his own defense in June, Moussaoui has revealed a “profound misunderstanding of the federal legal system,” Brinkema wrote in a July 11 order. At every opportunity, she has urged Moussaoui to cooperate with his defense counsel. “Unfortunately,” she noted in a separate order, “it is now obvious that no attorney appointed by the Court will satisfy the defendant.” And as Moussaoui’s Sept. 30 trial date nears, her communication with him has increasingly included mini-lessons in the pertinent law. Moussaoui frequently accuses Judge Brinkema of being in league with those who would see him dead. In one pleading, he said she is “not only the general to organize my killing she is the executionery.” But until he reaches out to his standby counsel, the legal information Brinkema dispenses in court and in her orders is the only outside guidance Moussaoui will get. Between the July 18 and July 25 hearings, when Brinkema again refused to accept a guilty plea, she sent Moussaoui a letter explaining the fundamentals of conspiracy law as well as the nature and consequences of a guilty plea. She also asked the government to send Moussaoui an outline of the facts underlying the charges. At the hearing on July 25, though, the 34-year-old French national still didn’t get it. He tried to plead guilty by admitting to certain activities, but not to the charges in the indictment. Brinkema said to him, “I don’t think based upon the way you’re responding to the court’s questions that you’re prepared to admit the essential factual elements that are necessary to find a person guilty of a conspiracy.” Moussaoui’s statements in court revealed that he had come to the United States as a member of al-Qaida with terrorism on his agenda, but, as he put it, that didn’t place him “on the plane.” She wouldn’t let him plead guilty. Not to Sept. 11. “There are judges who would say, ‘You decided to go pro se, I’m not going to tell you anything,’” says Alan Yamamoto, one of Moussaoui’s standby counsel. A DIFFERENT CASE Brinkema isn’t always as accommodating. Last year, Christopher Wills represented himself against capital kidnapping charges. Yamamoto was one of his appointed standby lawyers. “Judge Brinkema gave him less leeway than she gives Mr. Moussaoui,” Yamamoto says. “She tended to cut Wills off quicker than I thought, in some instances, she should have — for example, if he raised an argument and she didn’t want to hear it.” Then again, Wills knew the criminal justice system. He had previously succeeded, pro se, in having state charges against him dismissed. More important, he discussed his case with and listened to his standby attorneys. “She realizes this situation [with Moussaoui] is very different,” Yamamoto says. Says one prosecutor who has tried cases before her: “She has always been very concerned with the fairness of the process.” On April 22, when Moussaoui announced his desire to represent himself, he impressed observers and Judge Brinkema with his apparent knowledge of the U.S. justice system. On June 13, Brinkema adjudged Moussaoui competent and in sole control of his defense. By July 11, after Moussaoui had tried to enter a no contest plea, Brinkema wrote that it had become “painfully obvious that the defendant does not comprehend significant aspects of federal criminal law.” His refusal to rely on his attorneys, she wrote on July 16, “is obstructing his ability to mount an effective defense.” Over the past month, her orders have grown more instructive. She gives Moussaoui painstaking explanations of applicable law and why a particular motion cannot be granted. The orders warn. They exhort. They guide and they explain. They appear to be attempts to keep the case on track and due process intact for a defendant who may be inadvertently corrupting it. Paramount to Moussaoui has been getting his story into the public record. Brinkema responded on July 3 to his demands to appear before a grand jury and Congress. Her filing is as much a primer on testifying before grand juries and in congressional hearings as it is an order from the bench. She warns him that anything he says before the grand jury could expose him to further prosecution and orders that one of his standby counsel be available outside the grand jury room should he decide to testify. She denies his motion to testify before Congress on the grounds that federal courts do not advise the legislative branch on whom to call, but orders that his motion and her order be forwarded to the relevant congressional committees. On July 16, she ruled on seven motions filed by Moussaoui including one titled “Motion by Zacarias Moussaoui to Stipulate My Right and Duty to Live on this Earth a Long and Happy Life (with four wives) and to Stop this Judge Misrepresenting My Fight For Life” and another slugged “Motion by Zacarias Moussaoui to Have a Fair Trial Free of Islamphobia and Discrimination.” Brinkema distilled the seven motions to their single shared legal issue and responded, “Implicit in these motions is defendant’s objection to aspects of the Special Administrative Measures” — the regulations that define Moussaoui’s pretrial confinement. If Brinkema is frustrated with the situation, she keeps it to herself. Kuby, the New York defense attorney, observes that in addition to basic legal decorum, her measured responses may serve to keep a potentially obstructive defendant as cooperative as possible. “Brinkema realizes that to the extent that she can engage Mr. Moussaoui in the legal process, keep his attention, he’ll be a lot more tractable,” Kuby says. In the July 25 hearing, Moussaoui finally yielded to Judge Brinkema. He allowed her to override his attempts at a guilty plea. He agreed to communicate with standby counsel by mail, if only to prove their duplicity. The motions he has filed since then have reverted to his usual enraged and paranoid tone. But Brinkema’s exertions may yet pay a dividend if, in the end, it can be said that Moussaoui, the most reviled defendant in America, received a fair trial.

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