The lawyers assigned to represent accused terrorist Zacarias Moussaoui face a daunting task--defending a foreigner charged with being a conspirator in the Sept. 11 terrorist attacks and trying the case in one of the nation's most conservative districts.
Several legal experts who are not connected to the case said that acquittal would be particularly difficult because of the horrendous nature of the crimes and the resulting public outrage. Consequently, they said, the defense attorneys' best hope is to make a deal, trading information about the Al Qaeda network to avoid the death penalty.
"When you have a pariah client, the easiest thing is to have him join Team America," said New York defense lawyer Ronald Kuby, who represented Ahmed Omar Abdel Rahman, the so-called Blind Sheik, who is serving a life term for his involvement in a 1995 terrorism case in New York.
"No one is so bad, so vile, so brutal that he won't be forgiven if he becomes a government informer," Kuby said. Oklahoma City defense lawyer James Linn, who has represented Saudi financier Adnan Khashoggi and Imelda Marcos, agreed, saying: "The prosecutors will be looking for a bigger fish and the defense lawyer should take advantage of that."
French Citizenship Hinders Death Penalty
So far, according to government sources, Moussaoui has said little if anything and there has been no hint of a deal, but the case is at a very early stage.
Oklahoma attorney Stephen Jones, who represented Timothy J. McVeigh in the trial stemming from the Oklahoma City bombing, which killed 166 people in 1995, said the defense team would be wise to enlist the help of the French government since Moussaoui is a French citizen.
"If you can get the French involved, it would strengthen your ability to arrange some sort of deal," Jones said. The French government takes a hard line on terrorism, but like the other 14 European Union countries has abolished the death penalty.
The French justice minister, Marylise Lebranchu, said on French radio Wednesday: "We do not accept the death penalty. . . . There has to be a discussion with the United States."
Gerald Zerkin, the federal public defender in Richmond, Va., who was assigned the case Tuesday, declined to comment on strategy. He has not even met Moussaoui, who has been held in New York.
Zerkin, 52, is a highly regarded attorney who has worked on nearly two dozen death penalty cases, but he acknowledged in a brief interview Wednesday that he faces an uphill battle.
"It is a unique context. There is no question about that," he said.
Zerkin has represented four clients in federal murder cases, and none received death sentences. In addition, Zerkin, a graduate of Boston College Law School, played a key role as an appellate lawyer in securing the freedom earlier this year of a man who was cleared because of newly discovered DNA evidence after spending years on Virginia's death row.
But this is an extremely tough case, according to Kuby. "The difficulty in defending Moussaoui is there's no piece of evidence to discredit. They have a damning paper trail that connects him to the events of Sept. 11," Kuby said.
Kuby said that the most damaging evidence against Moussaoui revealed so far is a $14,000 wire transfer to him in Oklahoma in early August from Ramzi Binalshibh, an alleged Al Qaeda operative in Germany. A day later, Moussaoui allegedly bought two knives and was driven to Minneapolis, where he enrolled for flight training.
Moussaoui aroused an instructor's suspicion there and was taken into custody Aug. 17. The FBI transported him to New York after the Sept. 11 attacks.
Several veteran lawyers, including Seattle's Irwin Schwartz, president of the National Assn. of Criminal Defense Lawyers, said he thought that Zerkin would be wise to try to get the case moved away from Alexandria, Va., which is close to the Pentagon and considered a particularly favorable forum for prosecutors because jury pools are often composed of government workers.
Obstacles to Change of Venue
Virginia juries also are among the most sympathetic in the nation to the death penalty.
"I would be surprised if" the trial is held in the eastern district of Virginia, Schwartz said. "There are too many people [in the potential jury pool] who will know people who were in the Pentagon, or who know people who know people."
But professor Stephen Gillers of New York University Law School said he thought a motion for a change of venue would be hard to win because publicity about the attacks has been pervasive nationwide, and that demonstrating that jurors would be more fair-minded anywhere else in the country would be difficult.
Wherever the case is tried, the defense lawyers will have to be very rigorous in picking a jury, said Los Angeles lawyer Gerald Chaleff, who represented Angelo Buono Jr. in the Hillside Strangler killings. In 1984, Buono was sentenced to life in prison after being convicted of killing nine young women in the late 1970s.
"You will need people who can go back to the community or to their friends and withstand the public pressure if they render a not guilty verdict or a life sentence," rather than the death penalty, Chaleff said. "You will need people who are strong."
Another challenge for the defense lawyers is that critical evidence against their client is likely to come from classified information gathered by government intelligence agents and surveillance. Zerkin said he has never worked on such a case.
On Wednesday, Zerkin learned that U.S. District Judge Claude Hilton, chief judge in the eastern district, had appointed Edward MacMahon Jr., 40, his former law clerk, to be co-counsel on the case.
MacMahon has never worked on a death penalty case, according to David Baugh, former president of the Virginia defense lawyers association.
Earlier this year, MacMahon, who was a fund-raiser and volunteer for the Bush campaign last year, was one of six candidates to become the U.S. attorney in the district where Moussaoui is being prosecuted. Ultimately, another lawyer, Paul McNulty, got the job. MacMahon, who practices in Middleburg, Va., could not be reached for comment.
Several leading defense lawyers said Zerkin is well-suited to the hurdles he faces.
"Jerry Zerkin is a great lawyer," said Baugh, who worked on two death penalty cases with Zerkin and represented one of the defendants in the trial stemming from the 1998 bombings of the American embassies in Kenya and Tanzania.
That case was rough, Baugh said, "but this case will be 20 times more intense." He said the task Zerkin faces is "very analogous to John Adams representing the British soldiers" accused of perpetrating the Boston massacre, but that was before 24-hour news cycles repeatedly showing film of the terrorist attacks and the war that ensued from them.
But with the challenge comes a great opportunity, said Baugh, an African American who once represented a Klansman in a cross-burning case. "It is always exciting and gratifying to represent someone despised by everyone else," Baugh said. "This is our national morality and Jerry is now the guardian of it. That is a wonderful responsibility."
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Weinstein reported from Los Angeles, Savage from Washington.