Last time I wrote about the Zacarias Moussaoui conspiracy trial, I suggested this would come down to whose will is stronger—Moussaoui’s or Judge Leonie Brinkema’s. This afternoon, as Moussaoui is re-arraigned in federal district court in Virginia, it’s again evident that the prosecutors are basically irrelevant to this trial; thus far they’re wallpaper in nice suits. The real battle is between Moussaoui and the judge, and their respective strengths and weaknesses are starting to emerge.
The case: The case against Moussaoui remains weak, and for those hoping the new indictment contained a stronger case, the superceding indictment is, if anything, weaker. The prosecutors have corrected some dates and rounded a few integers, but they’ve also dropped all the crop-duster stuff, which makes Moussaoui look marginally less weird than he did under the last indictment. Basically, the prosecution is arguing some version of the “parallel path” theory that defense lawyers used to get Michael Skakel convicted of murder last month: Moussaoui trained in al-Qaida camps, he had money wired to him by suspected terrorists, he went to flight schools, and he owned many of the same props used by the 19 Sept. 11 hijackers. Thus, he aided their conspiracy. This is pretty circumstantial stuff. There’s still no evidence Moussaoui lived with, spoke to, or hung out with the Sept. 11 crowd. He may be a bad guy, but he may have been plotting some other attack and not this one.
Luckily, Moussaoui’s theory of the case is even weaker than the government’s. His only discernable argument remains that the FBI has been tracking him since he entered the United States and knows he wasn’t a conspirator. To prove this (negative) proposition, Moussaoui spends a good amount of time this afternoon insisting that his only requirement for pretrial discovery is FBI “certification” that they weren’t following, bugging, and tracking him. The prosecution has answered, in pleadings and again today at trial, that “to their knowledge” no one was tracking him. Moussaoui’s demand that they prove to him that the FBI wasn’t watching him may work under the legal rules of Bizarro—the planet this theory comes from. But even if he could prove a negative, it remains irrelevant. So he took aviation training and accepted al-Qaida funds while the government watched him; he’d still be a terrorist, just a busted one.
The law: Judge Brinkema has the advantage here. Because much as he hates the fact, she’s in control. She reminds him of this as soon as he attempts his first crazy diatribe about his right to counsel: “You don’t control this courtroom, I do.”
Moussaoui seems to think he understands the law because he read something about it once. But as she asks how he wishes to plea, he refuses to enter one (as he did last January). As she did then, Judge Brinkema replies: “I will assume you plead not guilty.”
But Moussaoui informs her that under the U.S. legal system, “I have no plea” is the same as “nolo contendere,”which is, therefore, going to be his plea. The judge tries to explain that a nolo plea is the functional equivalent of a guilty plea and that she assumes he doesn’t intend to … he cuts her off: “Do not assume! … I am saying no plea.” The judge sets the trial date for Sept. 30, and Moussaoui interrupts to say: “And I will plead no contest.”
Again the judge tries to explain that a nolo plea may lead to “an almost certain finding of guilt.” And Moussaoui interrupts again to tell her not to assume things: “You are not here to represent me!” he says. The judge explains that she is there to make sure he gets a fair trial and asks that Alan Yamamoto (a Virginia attorney appointed as back-up standby counsel) explain to him in writing the consequences of a nolo plea. Moussaoui is off again: “You are interfering with my right of proceeding pro se,” he says, telling her that she’s undermining his credibility as a pro se litigant by “talking to someone I don’t even talk to.”
Brinkema tries to back Moussaoui down: “So far you’ve been extremely good at stopping when I tell you, but if you don’t you will waive the right to represent yourself.” Moussaoui may just take her up on that offer. He becomes more and more combative. The judge goes on to deny a clutch of handwritten motions Moussaoui has filed and filed and filed from his jail cell. (All under the respectful heading “In the Name of Allah.”) First Brinkema denies his motion seeking to move the trial to Colorado, explaining that he has not proved that the jury pool in Virginia is incapable of impartiality. She denies his motion to exclude any government workers from the jury pool, explaining that “Sept. 11 probably impacted more nongovernment employees than government.” Finally she denies his “Emergency Motion for Immediately Release From Detention and the Dropping of All Charges” explaining that it is premature for him to be arguing his case in motions; that “the time to test the quality of the government’s evidence is at trial, not before trial.”
Brinkema grants two government motions: The first is to allow the victims who will testify at the penalty phase of the trial to sit through the guilt phase as well. Moussaoui objects that these spectators will just “act as reporters of the event” and “inflame” the nation. (No sir, that’s my job.) The second is that the addresses of prospective government witnesses will be withheld for their safety. Moussaoui objects to this as well, claiming he cannot investigate who they are if he cannot locate them. The judge explains that she’s trying to balance his rights against the safety of the witnesses and grants this motion.
Finally, Brinkema grants Moussaoui’s motion for an extension of time, and he erupts again, complaining that he cannot be ready for trial by July 18. “I don’t own a printer!” “I cannot make phone calls.” “You are putting me in a cell and running your show!” When the judge offers the services of standby counsel Yamamoto, he again cuts her off: “You are not in charge of my defense.” The only lawyer he will accept is Charles Freeman, the Houston attorney who has assisted Moussaoui on the case, although he is not admitted to the Virginia bar and has never filed an appearance in this case. (These facts form the basis of Judge Brinkema’s order refusing to let Freeman represent Moussaoui.) Freeman is in court today, as a spectator, but says nothing.
The defendant raves on: “You are just preparing me for the gas chamber.” “You are using every trick in the book to prevent me from defending myself!” The judge tries to explain why Freeman cannot sign Moussaoui’s pleadings, but Moussaoui interrupts her again. Finally, the judge pulls rank: “You are not an attorney and do not understand the nuances of the legal system,” she barks, and adjourns the hearing.
The odds: Brinkema is tough. But Moussaoui has the advantage of being focused on one goal: doing whatever he must to make the trial appear a sham. He’s willing to lose to do it; to die, even. He makes speeches and demands, refuses to avail himself of any assistance, then claims he is being persecuted. Brinkema is being rope-a-doped. She needs to control the trial, follow the law, and try to preserve national security. But she also needs to protect Moussaoui’s interests, even as he’s determined to violate them. Sputtering that he’s just too unsophisticated to understand legal nuance before adjourning the trial just makes Moussaoui look victimized. And she needs to avoid that at all costs. She needs to be his advocate—although it’s clearly killing her. She’s the only one he has.