The Moussaoui Verdict: No Defeat for America

By Daveed Gartenstein-Ross

After seven days of deliberation, jurors in the Moussaoui case today determined that he should spend the rest of his life in prison rather than face the death penalty.

Was the verdict a major loss for the prosecution, or for the country? It doesn't seem to be. A major part of the jury's deliberation was likely the argument made by defense attorney Gerald Zerkin that the death penalty would give Moussaoui the martyrdom that he desired: "You can confine him to a miserable existence until he dies. Not the death of a jihadist -- the long, slow death of a common criminal." And the available evidence suggests that Moussaoui did indeed want to be put to death.

During the sentencing phase of trial, Moussaoui testified twice. Both times he testified against the advice of his court-appointed lawyers, and both times his testimony only helped the prosecution. In the initial testimony, Moussaoui handed the prosecution the evidence it needed to make him eligible for the death penalty by claiming that he and Richard Reid were supposed to fly a fifth plane into the White House on 9/11. The second time he testified, Moussaoui did nothing to win jurors' sympathy: He mocked the heart-breaking testimony of the families of 9/11 victims, said that he had "no regret, no remorse," and openly wished for every day to be a 9/11. In the days leading up to trial, he even offered to testify for the prosecutors.

As Moussaoui left the courtroom today, he defiantly stated, "America, you lost. I won." But whether or not he received the death penalty, we could expect this kind of bluster from Moussaoui. What speaks louder than these words are his actions during the sentencing phase -- actions that scream out a desire for martyrdom. Did America lose in this case? In my opinion, it did not.

UPDATE, 10:18 P.M.: While Moussaoui was clearly a man seeking death, the special verdict form that the jury filled out makes it clear that this factor did not sway the jury's decision. See, for example, pages 6 to 7 of the form:

E. That a sentence of life in prison without the possibility of release, under the strict conditions the Bureau of Prisons is likely to impose, will be a more severe punishment for ZACARIAS MOUSSAOUI than a sentence of death. Number of Jurors who so find: none.

F. That ZACARIAS MOUSSAOUI believes that his execution will be part of his Jihad and will provide him with the rewards attendant to a martyr's death. Number of Jurors who so find: none.

G. That the execution of ZACARIAS MOUSSAOUI will create a martyr for radical Muslim fundamentalists, and to al Qaeda in particular. Number of Jurors who so find: none.

In contrast, page 7 shows that nine jurors found Moussaoui's unstable early childhood and dysfunctional family to be a mitigating factor, nine found his father's violent temper and abuse to be a mitigating factor, and three found the racism he was subjected to as a youngster due to his Moroccan descent to be a mitigating factor.

Although I don't think this result was Moussaoui's preferred outcome, the reasoning employed by the jury in reaching it seems increasingly indefensible -- and quite possibly the kind of logic that makes the enemy perceive us as soft, pampered and weak.

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