MELISSA BLOCK, host:
After four years of delays and legal detours, the trial of admitted terrorist Zacarias Moussaoui is about to begin. Moussaoui has already pleaded guilty to complicity in the 9/11 plots. He's admitted he hates the U.S., and that he swore loyalty to Osama bin Laden. But, as NPR's Larry Abramson reports, federal law lays down a high standard of proof before a jury can impose the sentence prosecutors want, death.
LARRY ABRAMSON reporting:
Here's the challenge for the prosecution. Convince the jury to impose a death sentence on a man who was in jail when the crime was committed. Moussaoui aroused the suspicions of his flight instructors when he said he wanted to fly a jumbo jet, but once arrested he told the FBI he was learning to fly for his own amusement. Former federal prosecutor Andrew McBride said the government must establish a link between that lie and the attacks.
Mr. ANDREW MCBRIDE (Former federal prosecutor): That he lied to the FBI in throwing the FBI off the track allowed his "brothers" to carry out the mission.
ABRAMSON: McBride says that's why the defense will focus not on what Moussaoui did, but on what the government did not do.
Mr. MCBRIDE: The defense will have an opportunity to essentially try the FBI, to be its own 9/11 commission in front of the jury and say these were Keystone Kops. Regardless of what Moussaoui had told them, they wouldn't have stopped the attacks.
ABRAMSON: The defense plans to call expert witnesses, including a former FBI agent. He can be expected to go through the litany of opportunities that the government missed, such as when the CIA did not tell the FBI to look for two of the hijackers until long after they'd entered the country. Defense attorney Jonathan Shapiro, who's consulting with the defense team, says the jury must first be convinced of this link before they are even allowed to consider whether Moussaoui deserves the death penalty.
Mr. JONATHAN SHAPIRO (Virginia defense attorney): The government is going to have to prove that as a result of some act of Moussaoui, a victim died as a direct result of that act.
ABRAMSON: The challenge for the defense team starts on day one, picking a jury that can be open minded about a character who has already admitted plotting a terrorist act. Attorney Michael Tigar defended Oklahoma bombing co-conspirator Terry Nichols. He says here the rules give prosecutors an enormous advantage.
Mr. MICHAEL TIGAR (Attorney): If you are opposed to the death penalty under all circumstances, you are not eligible to serve on a capital jury. So everybody who's going to be on this jury has to be willing to impose the death penalty.
ABRAMSON: Once the jury is chosen, Tigar says the defense team has to bridge the gap between the jury and the defendant, who comes from a foreign culture and a completely different mindset. Tigar says creating that connection is much more important than trying to select Muslim or black jurors.
TIGAR: Thinking about, gee, what would an African-American juror do, what would a Muslim juror do, that's still thinking in stereotypes. It is the job of the defense in criminal cases to break down stereotypes.
ABRAMSON: The defense team has indicated it will call a social worker, who will talk about Moussaoui's difficult childhood, and a psychiatrist, who will say she believes Moussaoui may be suffering from schizophrenia. This is tricky territory for both sides. Early in the proceedings, Moussaoui protested vociferously against what he referred to as blasphemous so-called psychiatric evaluation, and said he did not want to be depicted as insane. That could mean jurors will be treated to one of the defendant's famous courtroom rants. Professor Stephen Saltzburg, of George Washington University, says there's always a chance that any outburst will win sympathy from the jury.
Mr. STEPHEN A. SALTZBURG (The George Washington University Law School): If he creates an impression on the part of the jury that he's nuts, and the jury concludes that it would be unjust to execute someone who is mentally deficient, the tactic might work.
ABRAMSON: In addition to deciding whether Zacarias Moussaoui will live or die, this proceeding will help answer another question, whether the federal courts can provide fair trials in major terror cases.
Larry Abramson, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
