Moussaoui a step closer to death

ALEXANDRIA, VA. - A federal jury on Monday found Al-Qaida operative Zacarias Moussaoui eligible for the death penalty, agreeing that his lies to federal agents in Minnesota in August 2001 prevented investigators from limiting the nation's worst terror attack.

Now the jurors must weigh more emotional evidence during a lengthy second trial phase that begins Thursday, when they will be asked to decide whether the 37-year-old Frenchman of Moroccan descent should actually be put to death.

Before Moussaoui entered the courtroom to hear the jury's findings, he could be heard shouting at U.S. marshals. Moments later, as the jury forewoman, a high school mathematics teacher, handed the verdict to a bailiff and U.S. District Judge Leonie Brinkema read it aloud, Moussaoui seemed to be reciting a prayer or chant to himself. After the 10-minute hearing adjourned, he shouted, "You'll never get my blood! God curse you all!" as he left the court.

Prosecutors now plan to present testimony from dozens of relatives of Sept. 11 victims describing the traumatic effects of their losses, while defense lawyers are expected to call experts who can describe the deprivations Moussaoui faced growing up in the racially charged south of France.

Defense lawyers also told Brinkema Monday that they will review a secret forensic report on Moussaoui's mental health and decide in the next day or two whether to argue that he has suffered from mental illness. The second phase of the trial could last for several weeks.

Experts said Moussaoui, who pleaded guilty to six conspiracy counts a year ago, may have sunk himself. He insisted on testifying over his lawyers' objections and then further incriminated himself by saying that he was part of the Sept. 11 operation, that he planned to fly a fifth plane into the White House and that he lied upon his arrest so the suicide hijackings could go forward.

The jury deliberated about 17 hours over four days before finding that Moussaoui is eligible to be executed on all three of the counts carrying a possible death penalty: conspiracy to commit acts of terrorism transcending national boundaries, to destroy aircraft and to use weapons of mass destruction.

The unanimous verdict appears to mark the first time that a federal defendant has been found eligible for execution based solely on his failure to act to prevent a crime. It is a victory for the Justice Department in the only U.S. criminal prosecution stemming from the hijackings in which terrorists slammed four U.S. jetliners into New York's World Trade Center, the Pentagon and a Pennsylvania field.

If the jury had rejected a death penalty, Moussaoui would have faced life in prison without the possibility of release.

Robert Precht, who represented the lead defendant in the 1993 World Trade Center bombings, said he was surprised by the verdict, because he had considered the causal link between Moussaoui's lies and the attacks to be "too speculative to support the death penalty."

But, he said, "the prosecution has very effectively planted in the jury's minds that there is a connection between Moussaoui's lies and the eventual success of the plot."

Brinkema divided the trial into two phases after defense lawyers persuaded her to delay the most inflammatory testimony until jurors determined Moussaoui's actions met the legal thresholds of the death penalty law.

The 4½-year-old case was held up for two years by an impasse over defense demands for access to Al-Qaida captives. It was nearly ruined by revelations that a lawyer for the Transportation Security Administration (TSA) coached key aviation witnesses.

During 10 days of eye-opening testimony, jurors got glimpses of Al-Qaida's inner workings and of critical stumbles by the FBI, CIA and Federal Aviation Administration (FAA) in the weeks and months before the Sept. 11 attacks. Defense lawyers also read into the record declassified summaries of statements by a half-dozen Al-Qaida captives held at undisclosed sites overseas, including Sept. 11 mastermind Khalid Sheikh Mohammed, who said Moussaoui had no role in the plot and was training to lead a second-wave attack.

When Moussaoui took the witness stand last week, he calmly told the jury that he came to the United States to kill as many Americans as he could and that he lied to federal agents upon his arrest because he wanted to complete his mission of flying a plane into the White House. He said would-be shoe bomber Richard Reid was to be a member of his terror squad and two other planes would be targeted for the World Trade Center.

In the end, the jury had to sweep testimony about a fifth plane aside. Instead, they were told to decide whether Moussaoui should live or die based on a hypothetical: whether, if provided specific enough information about a suicide hijacking plot, the FBI and FAA would have taken steps to save the life of at least one of the 2,972 Sept. 11 victims.

Under the federal death penalty law, a defendant must have taken an act that directly contributes to a death to be eligible for execution. In her instructions to the jury, Brinkema said that once Moussaoui chose to speak to the law enforcement officers who arrested him, he had "an affirmative responsibility to tell the truth" and that his concealment of the plot could be held against him.

At the center of case was Minneapolis FBI agent Harry Samit, who testified he was so convinced that Moussaoui was a terrorist that he told him so the day after his arrest. In an Aug. 18, 2001, memo, Samit said he suspected Moussaoui was plotting to commit two of the crimes with which he ultimately was charged.

The prosecutors' case hinged mainly on testimony from former FBI agent Aaron Zebley that, if Moussaoui had told Samit of a hijacking plot, the bureau could have traced wire transfers he received to a German Al-Qaida operative, then followed other clues to identify 11 of the 19 hijackers.

TSA security official Robert Cammaroto, who heads a committee that imposes counter-measures in response to aviation terrorism threats, said the panel could have acted within hours to ban short-bladed knives and put the 11 hijacking suspects' names on a "no-fly" list.

Cammaroto's testimony rescued the government's case, after prosecutors disclosed that TSA lawyer Carla Martin had e-mailed a copy of a transcript of the trial's opening statements to seven federal aviation officials and made suggestions as to how they should testify.

Brinkema ruled that the aviation witnesses were "tainted" and barred all aviation-related evidence in the case, knocking out prosecution testimony from two senior FAA security officials and five airline witnesses. When prosecutors advised her that the ruling might force them to drop their case, she relented and allowed "untainted" testimony from Cammaroto.

Martin now faces a criminal investigation into her activities, which could give defense lawyers an avenue for appeal if Moussaoui gets a death sentence.

Washington correspondents Lisa Zagaroli and Aaron Blake contributed to this report.

Greg Gordon is a correspondent in the Star Tribune Washington Bureau.