Jewish World Review
http://www.jewishworldreview.com | (KRT) June 13, 2002, may well be remembered as the day the case of the so-called 20th Sept. 11 hijacker went hopelessly awry.
That was the day the judge in the case ruled that Zacarias Moussaoui could defend himself instead of relying on a court-appointed team of experienced attorneys.
The result has been a circus of handwritten pleadings, muddled strategies and chaotic hearings that have led some observers to question Moussaoui's ability to defend himself - and whether the case can be resolved in the criminal justice system.
"Almost everything that's gone wrong in this trial dates from that day," said Steven Lubet, a Northwestern University law professor. "Legally speaking, the decision was absolutely right. Morally, it was right. Pragmatically, it's been a disaster."
Now, even if Moussaoui could defend himself coherently, he is hindered by a lack of access to key evidence, much of which is classified.
That could become a key issue as Moussaoui seeks to depose an alleged al-Qaida operative, now in custody, who Moussaoui claims could clear him of involvement in the Sept. 11, 2001, terrorist attacks. The government does not want to allow Moussaoui access to the alleged operative for what it says are security reasons.
Prosecutors are said to be considering dismissing the charges against Moussaoui if an appeals court rules he can depose the alleged operative. The government then would designate Moussaoui an "enemy combatant" and try him via military tribunal.
Moussaoui, a French citizen of Moroccan background, was indicted three months after the attacks. He was in jail in Minnesota on immigration charges on the day of hijackings, but federal officials said he was scheduled to take part in the attacks. Officials recently backed off that assertion, saying Moussaoui either was to be on another plane or part of another wave of attacks.
He is the only person to be tried in a U.S. court in connection with the Sept. 11, 2001, attacks. Prosecutors are seeking the death penalty.
Moussaoui refused to work with his federal public defenders, insisting that either a Muslim attorney be found or he be allowed to defend himself. The defense team tried to prevent that from happening, saying their putative client's radical Muslim ideology "appears to be interlaced with serious psychopathology."
Prosecutors supported Moussaoui's attempt to defend himself, saying that "the defendant's conduct, statements and writings all plainly establish the defendant's competence."
U.S. District Court Judge Leonie Brinkema called Moussaoui's request "unwise" but granted his request to represent himself. She appointed the public defenders as "standby counsel" to advise Moussaoui. He has refused to cooperate with them.
An examination of Moussaoui's court filings reveals a man prone to hand-scrawled, half-coherent rants who treats neither the court nor the process with the respect judges generally demand.
He routinely refers to Brinkema as "Lie-onie." He files pleadings as "Zacarias Moussaoui, Slave of Allah" against "Bush and Ashcroft, Slaves of Satan."
In an April 23 filing, Moussaoui appeared to accuse Brinkema of trying to kill him and wrote, "Lie-onie is a vicious girl under seal, but in open court she play the afraid nanny." Another filing the same day called the standby counsel a "horde of bloodsuckers."
"Moussaoui is clearly a very, very difficult defendant," said Michael Greenberger, a lawyer who is director of the University of Maryland's Center on Health and Homeland Security. "But I think the civilian criminal process can withstand this."
Security issues aside, transferring the case to a military tribunal might make the whole process smoother but it would be a disservice to the Constitution and an overreaction to Moussaoui's misbehavior, Greenberger said.
Greenberger noted that virtually all defendants who represent themselves make a mess of it - it just happens in much lower-profile cases. And, he added, several other terrorism-related trials have been resolved within the criminal justice system, including recent plea bargains in Buffalo, N.Y., and guilty verdicts in Detroit.
"I think she (Brinkema) will be able to finish this case and bring it home with a jury verdict," Greenberger said. "But it won't be pretty."
Several experts said Brinkema had little choice but to grant Moussaoui's request to defend himself.
"She would have gone outside the norm had she denied him the opportunity to defend himself," said Scott Silliman, executive director of the Center on Law, Ethics and National Security at the Duke University law school. "I think she's doing an absolutely outstanding job in managing the most difficult criminal trial in decades. ...It's easy to look back now, considering the mess the government has on its hands, and say it should have been done differently."
Brinkema could not have had many illusions regarding Moussaoui before her ruling. His behavior in court was bizarre, and earlier filings were in a vein similar to his recent ones.
In the April 29, 2002, filing in which Moussaoui asked to represent himself, he called his defense team "Wicked Megaloman," "Nasty Jewish Zealot," "Right Wing Racist," "Idaho Witch" and an "undercover crusader."
Brinkema could revoke Moussaoui's right to defend himself, and she indicated last year that she will keep that option open. But trial judges generally do not change their rulings in matters of case management.
The future of the Moussaoui case may well play out outside the normal judicial arena, depending on how an appeals court rules on Moussaoui's access to the alleged al-Qaida operative.
Ironically, the legal team that Moussaoui claims to despise has the required clearance to deal with whatever might come from access to the alleged operative.
"If he had a lawyer with a security clearance, I don't think the government would have a problem," Lubet said. "You can see the government acquiescing to that."
But Moussaoui's lack of clearance and unpredictability give prosecutors pause.
"It's not just government convenience," said Robert Turner, associate director of the University of Virginia's Center for National Security. "There are risks there."
So a military tribunal could be in Moussaoui's future. One lawyer who is following the case said Moussaoui might benefit from a military tribunal because he would not be allowed to try to defend himself in that environment; essentially, he might be better off with fewer rights.
For the government, though, there is no good result, Northwestern's Lubet said. "Either it continues to be a circus, or the government's going to put it in a military tribunal, and damage the credibility of our justice system around the world."
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