The Results of Adequate Counsel

How did Zacarias Moussaoui avoid the death penalty?


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.


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