Judge Rethinks Death Penalty for Moussaoui
W A S H I N G T O N, July 12 — The federal judge presiding over the case of Zacarias Moussaoui, the only person charged in connection with the Sept. 11 attacks, said she would consider the constitutionality of the federal death penalty act before deciding whether U.S. prosecutors can seek the death penalty.
District Judge Leonie Brinkema issued an order late on Thursday requiring federal prosecutors to file a brief by July 22 on the constitutionality of the Federal Death Penalty Act.
Her order came after Frank Dunham, the federal public defender assigned to Moussaoui's case but currently acting in a "standby" capacity, claimed that a recent Supreme Court ruling throws into question the constitutionality of the law.
Dunham was fired by Moussaoui, who says he wants nothing to do with his former counsel. But as standby attorney he filed a memorandum with the court this week to supplement previous documents opposing the government's plan to have Moussaoui executed if he is convicted of conspiring with the 19 hijackers who carried out the Sept. 11 attacks on the United States.
Moussaoui was being held on immigration charges when the Sept. 11 hijacked aircraft attacks occurred. U.S. officials believe he was meant to be the 20th hijacker.
The 34-year-old French citizen of Moroccan descent has been charged with six counts of conspiring to carry out the attacks. Four of the charges carry the death penalty.
In the latest filing, Dunham argued that the federal death penalty is unconstitutional because it does not require a grand jury to include "aggravating factors" in its indictment.
He referred to a June 24 decision in which the Supreme Court ruled that only juries — not judges — can impose the death sentence. The justices declared unconstitutional capital sentencing schemes in five states.
Dunham said the ruling would also apply to federal law and said a grand jury must consider the death penalty issue in a case like Moussaoui's.
Brinkema, who had been expected to rule shortly on whether the government could seek the death penalty in the case, said she would hold off until she addressed the issue of whether the FDPA was constitutional.
She said the government and the defense had until July 22 to file documents on the issue.
Moussaoui, who is not a lawyer, has urged Brinkema not to accept any motion or memorandum filed by his former court-appointed defense team.
But when Brinkema ruled that Moussaoui was mentally competent to defend himself, she also ordered Dunham and a team of attorneys to remain as "standby" lawyers for legal consultation and to take over the case if necessary.
Earlier this week, Brinkema raised the possibility of revisiting Moussaoui's competency. In a separate order filed late on Thursday, she reappointed Edward MacMahon to the team of defense lawyers in an effort to ensure a fair trial.
She noted that it was "painfully obvious" that Moussaoui did not understand significant aspects of criminal law and said he needed help from qualified attorneys.
"The quantity and quality of the defendant's pleadings strongly reinforce our conclusion that standby counsel must remain in this case," she said.
Moussaoui has filed dozens of handwritten motions to the court. Most of them accuse Brinkema and the defense team of conspiring to kill him, while others claim the FBI had conducted an uncover surveillance operation of him and the 19 suspected hijackers.