Terrorism

The Results of Adequate Counsel

How did Zacarias Moussaoui avoid the death penalty?

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Zacarias Moussaoui looked like a lead-pipe cinch for the death penalty. He didn't just admit his guilt, but reveled in it. Moussaoui refused to cooperate with his lawyers, boasted about his role in the 9/11 attacks, said he had "no remorse," and proclaimed he would be happy to kill Americans even in prison: "Anytime, anywhere."

It shouldn't be hard to kill a guy so eager to tie his own noose. Last month, a jury agreed that Moussaoui's role in the attacks was enough to make him eligible for a death sentence. So when the jury ultimately spared his life, the prosecutors in this case were visibly surprised—as, I suspect, were most Americans.

In this country, more than 100 criminals are given death sentences every year. How on earth did this vile creature escape? Pretty simple, really: He had able lawyers with adequate resources, which most capital defendants don't.

Moussaoui's luck was to be tried in the federal system, which assures accused criminals the sort of legal resources that are normally available only to the prosecution. Under a measure passed in 1988 restoring the federal death penalty, indigent defendants are assured representation by qualified, experienced lawyers, who in turn have access to funds to pay for investigators, expert witnesses, psychiatric evaluations, and laboratory tests.

That's expensive. Oklahoma City bomber Timothy McVeigh's defense cost some $15 million in taxpayer funds, which sounds like a lot until you consider that the government spent $82 million making the case against him.

With ample funding, the Moussaoui defense was able to call on mental health professionals and his childhood friends to testify about his brutal father, his time in orphanages and the prevalence of mental illness in his family. When it came time to decide whether to put him to death, that information proved crucial. Nine of the 12 jurors said his guilt was mitigated by an "unstable early childhood and dysfunctional family" and by his father's abusive behavior.

The resources available to Moussaoui's defense team were different from the provisions made in many states. As a rule, the states with the highest execution numbers, says Washington and Lee University law professor David Bruck, "are the states with the worst public defender systems, or none at all." A report by the American Bar Association concluded that "poor representation has been a major cause of serious errors in capital cases, as well as a major factor in the wrongful conviction and sentencing to death of innocent defendants."

Some states have nowhere near enough experienced capital defense attorneys for all the indigent defendants, and some states don't strain themselves trying to get them. Back in the 1990s, Virginia paid court-appointed lawyers in death cases only $13 an hour. Some Texas counties said the defense could spend as much as it needed to try a case, as long as it didn't need more than $800.

When you offer pay like that, you generally don't get world-class legal talent. Alabama sent a defendant to death row even though her lawyer showed up drunk. A Texas man was convicted after his attorney slept through much of the trial, with the judge ruling that the Constitution "doesn't say the lawyer has to be awake." A study in Tennessee found that in one out of every four capital cases, the defense lawyer declined to bother presenting mitigating evidence. That's like showing up for a knife fight with a wooden spoon.

Things have improved since then, partly because the Supreme Court has ordered new trials in some cases on grounds of "inadequate counsel," and partly because of the discovery of dozens of wrongful convictions. Developments like those embarrassed legislatures into taking remedial action. But overall, defendants still get worse legal help in state court than federal court.

That explains why federal juries are much less likely to impose capital punishment. At the state level, prosecutors asking for it get their way 50 percent of the time or more. But U.S. attorneys seeking death sentences lose about two out of every three times.

It may sound hard to believe that in the end, the jury would reject the death penalty for Moussaoui just because he had an unhappy childhood. But that's what happened.

Once jurors are forced to look at all the factors that made a monster into a monster, they are apt to decide he is not entirely to blame. That this jury could contemplate the unspeakable horrors of 9/11 and still spare his life is proof that hearing both sides can make all the difference in the world.

COPYRIGHT 2006 CREATORS SYNDICATE, INC.

Editor's Note: Steve Chapman is on vacation. This column was originally published in May 2006.

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  1. Y’know, some of us think Chapman’s being on vacation is a feature rather than a bug. It really isn’t necessary to recycle old columns to give us our Chapman fix. Cold turkey is fine.

  2. Pretty controversial stand there. What’s next — a Chapman article on how Congress ought not to make a law concerning freedom of the press?

    And I agree with Joel — Chapman’s quality is uneven at best. I can’t say we’re better served by recycling his stuff from the Spring.

    It is also my belief that Matt Welch shold be fired.

  3. What’s the solution here?
    Increase funding for defense attorneys?
    Decrease funding for prosecutors?

    Privatize the legal system?

  4. What’s the solution here?

    Putting him in the general prison population should take care of this “problem”.

  5. Meanwhile, if all you have going for you is DNA that proves you aren’t the one that did the crime…

  6. IN this day and age of Kangaroo courts, corrupt lawyers and judges its only about how much money you have, and knowing which pockets to lube.

    jess
    http://web-anonymity.vze.com

  7. Couple of thoughts:
    How does the fact that we spent an additional $97mm on McVeigh make one feel as taxpayer, as a human? The deaths of all those innocent people and the waste of all the resources in his trial can not sit well with anyone.
    I don’t think there is ANY murderer, terrorist or rapist who didn’t grow up under harsh circumstances? However, there are thousands, if not millions of others who also grew up under very, very harsh circumstances, yet they chose not to cause injury or harm to others.
    Everything you do has extenuating circumstances, so what criminal activity would NOT be subject to the “tough childhood” excuse?
    Don’t get me wrong, there are a lot of bull$hit laws on the books, but in our mad dash to the shangri-la of due process, I believe we losing one of the great assets of the American character, namely common sense. If you set up a system where the odds are in the criminals favor and tax payer foots the bill, who wouldn’t sign up for this??
    You can use this argument for the TARP as well…

  8. So wait, are there still people advocating that anyone admitting to a crime does not deserve due process?

    Mercy (if you can call it that) should not depend on your childhood, but this is a wholly different argument.

    Due process states that when accused of a crime, you will be treated the same as everyone else, and everyone has to follow the same rules. Being a minority, poor, homeless, a cop, or raised by bad parents should not matter whether you get that or not.

    So let me ask again? Why not?

    What if he’s delusional to the point that he thinks he had something to do with this, but didn’t? It’s okay to send him to the chair too? What about the homeless in the DC parks – surely enough of them would confess too, just to get off the cold benches and get some warm meals.

  9. “What’s the solution here?
    Increase funding for defense attorneys?
    Decrease funding for prosecutors?”

    Decreasing funding for prosecutors would be a great idea, actually.

  10. David,

    Don’t hate the players (juries and lawyers), hate the game.

    Moussaoui (sp?) was spared because of the *substantive* law, which was created by the U.S. Supreme Court. The Supremes have said that the death penalty has to be (a) fair and consistent, so that similar offenders get treated similarly, and (b) individually tailored to the circumstances of each individual defendant, with virtually no limits on the kind of “mitigating evidence” that can be introduced. (totally reconcilable goals there, huh?)

    Harsh childhoods are the best kind of mitigating evidence, since lots of killers and other felons had harsh childhoods. Of course, this obscures the fact that the majority of people with harsh childhoods grow up into law-abiding (if not always happy) citizens. What message does it send to these law-abiding people that, if they had committed crimes, they could have parlayed their bad upbringings into lenient sentences?

    The fact that Zach M. had the resources to exploit the defendant-friendly substantive law isn’t an arguments against providing resources to defendants. It’s an argument against the substantive law.

    Let me also say that I have my doubts about the death penalty in the general run of murders – although conspiracy to commit mass murder is certainly one of those cases where a death penalty *is* justified.

  11. Decreasing funding for prosecutors would be a great idea, actually.

    Ah.
    Nothing should stand in the way of justice, except money.

    “We’ve concluded your daughter was raped and murdered. Unfortunately, we can’t afford to continue the investigation against our main suspect. Sorry.”

  12. Ol’ Zac avoided the death penalty by making it seem like he really wanted to die. If you give a strong enough impression that you actually want to die, you can avoid the death penalty. Personally, I would have had no problem with the bastard frying (yes, I know they don’t use the electric chair, but it would be damn cool if they did).

  13. Of course, I’ve advocated criminal trials for the vast majority of both houses of Congress, several presidents, and a large number of cabinet members through the years, with the possibility of the death penalty, so people might not take my support for a Moussaoi death penalty too seriously.

  14. “We’ve concluded your daughter was raped and murdered, but we don’t have funds to prosecute.”
    What’s wrong with a little DIY justice?

  15. I believe we losing one of the great assets of the American character, namely common sense.

    Isn’t common sense against the law?

  16. One of these days Chapman is going to come out with photos of Matt Welch’s torrid tryst involving several goats, a donkey, Mr. Garrison, and Mr. Slave, and then the game will be up.

  17. MATT WELCH,
    WHY THE HELL DO YOU CONSTANTLY REPRINT CHAPMAN’S DRIVEL? YOU KNOW A LOT OF PEOPLE HERE THINK HE’S GOT SOME DIRT ON YOU! I APOLOGIZE FOR THE ALL CAPS, BUT THIS IS A VERY PRESSING ISSUE THAT YOU NEED TO DEAL WITH IMMEDIATELY.

  18. With ample funding, the Moussaoui defense was able to call on mental health professionals and his childhood friends to testify about his brutal father, his time in orphanages and the prevalence of mental illness in his family

    Tricks and technicalities. The hand is quicker than the eye. Look over here, jurors. See the poor little boy with the mean daddy. He really didn’t mean to fuck up all those Americans.

    Taxpayers! That’ll be 15 million please. Thankee much, I’ve had my eye on that new Bentley.

    For the record, I am not arguing that this guy should have been gassed or fried (medium rare). I am arguing that I don’t give a shit about his past. I only give a shit about what he did and whether he is guilty of that crime.

  19. I believe we losing one of the great assets of the American character, namely common sense.

    Isn’t common sense against the law?

    We were taught in Bonehead Sociology for non-majors that Common Sense was crap, and anyone who referred to common sense was a fool. Ditto for Folk Wisdom.

  20. Matt, I really think you need to consider what’s best for the magazine. Remember, this reason. Most posters here don’t care about whatever it is that Chapman’s blackmailing you with. And if it’s something illegal, some of us would be happy to deal with Chapman for you.
    OSCAR
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  21. Actually, I’m a big proponent of the guillotine. I know it’s very Frenchy, but it preserves most of the organs for later use.

  22. TWC,
    I don’t remember much about the Moussaoi case except that he pretty much admitted to everything.

  23. Regardless of whether or not you all agree with the jury’s decision, that doesn’t change the fact that all defendants should have adequate defense, which was the focus of the article. The jury, had it been comprised of many on this board, would have come back and said “fuck that, fry em” but they didn’t. To argue that a lawyer can’t try anything to convince a jury to do the best thing for his client is crazy.

  24. “If you give a strong enough impression that you actually want to die, you can avoid the death penalty.”

    What an interesting concept – somebody should write a novel about it.

    “We were taught in Bonehead Sociology for non-majors that Common Sense was crap, and anyone who referred to common sense was a fool. Ditto for Folk Wisdom.”

    Well, sociologists *would* say that, wouldn’t they? If common sense and the traditions of the people rebel against all the wonderful plans you have for remaking society, wouldn’t *you* want to discredit them?

  25. Life In Prison is the death penalty, except much more slower and painful way to die, waiting on nature to do it for you.

    Texas should try to sell the “Voluntary Death Penalty” which would mean that the convict and the victim’s family would both decide on the issue of how, when, and where his death should occur. This would reduce the debate of the current system and make the stupidest of people understand that either way, there is no way to “spare” someone’s life by giving him the rest of his life to wait and die in prison.

    If the Convict wishes to die, and the victim’s family agrees then POW! Kill em’. If they both don’t agree on the death Penalty, then life in prison until nature kills em.

    Selling the death penalty like this would basically let everyone know that sooner or later, they will all die. And any innocent man is not going to choose the death penalty unless he thinks that there is no way that he can convince a jury that he really didn’t do it. (ala Life Of David Gale)

  26. “”””I don’t remember much about the Moussaoi case except that he pretty much admitted to everything.”””

    Including things the government didn’t believe was true.

    http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/04/21/MNG04ICUM01.DTL

    This price is the McVeigh case is staggering considering he was only tried for killing 8 federal agents.

  27. Change price is to price in

  28. Like I said:
    OSCAR
    OSCAR
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    OSCAR

  29. I would not advocate removing the right to due process, but there must be some sort of limit to the amount of legal fees that the taxpayer is on the tab for. My main point was about having another “system” that the accused can opt into once the death penalty is sought. If that means unlimited resources for the accused and a subsequent arms race with the prosecutors, then there will be elements of moral hazard.
    The problem is that we are pursuing justice without regard to cost. Kind of like pursuing social goals … college for everyone, homeownership for all that want it and health care for all… without regard for cost. Obviously, the bar must be set very high for the gov’t to take a person’s life, but there must be ultimate consequences for those that show the ultimate disregard for their fellow citizens’ basic right to live.
    Don’t know what the solution is, but know that some of the results (like dropping 80+mm on the McVeigh trial) are unacceptable.

    And yes, at some point, we need to know what Chapman has on Welch.

  30. There should be a requirement of spending PARITY as between prosecutors and defense. That should be considered as Constitutionally required in the modern world.

  31. In other words, we can spend another dollar investigating the main suspect in your daughter’s rape, but we are going to have to give this suspect an equal dollar to challenge your daughter’s accusations. Deal, or, as they say, no deal?

  32. Dave W.
    That actually does sound reasonable.

  33. @dave w: i thought the problem was we ran out of dollars. now we need to find twice as many?

  34. One thing I’ve always been curious about: even though America has this rep as an executing country, only 28 states actually allow capital punishment, and of those, only a few actually use it on a regular basis (all Southern states I might add). Why is that? When Pataki won the NY governor’s post in 1994, one of primary reasons was because Cuomo opposed capital punishment, and the voters of NY didn’t think that all those murdering scum deserved to live (remember Howard Stern’s campaign, heavily based on attacking Cuomo for his softness). Yet, since reinstating CP, only 5 individuals have been sentenced to death, and none have been executed. Even California, though it has hundreds on death row, has only executed a few. Texas, on the other hand, seems to get off on offing people. I guess there is some truth to the idea that Americans think they are conservatives, but are actually liberals.

  35. @dave w: i thought the problem was we ran out of dollars. now we need to find twice as many?

    That is up to the prosecutors and sympathetic victims. If these fine folks know that the defendant will split the dollar pie evenly, then there is a good chance they will stop their incessant braying for cash in many, if not most, cases.

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