Judge Reviews Moussaoui Death Penalty
— -- Judge Rethinks Death Penalty for Moussaoui
W A S H I N G T O N, July 12 — The federal judge presidingover the case of Zacarias Moussaoui, the only person charged inconnection with the Sept. 11 attacks, said she would considerthe constitutionality of the federal death penalty act beforedeciding whether U.S. prosecutors can seek the death penalty.
District Judge Leonie Brinkema issued an order late onThursday requiring federal prosecutors to file a brief by July22 on the constitutionality of the Federal Death Penalty Act.
Her order came after Frank Dunham, the federal publicdefender assigned to Moussaoui's case but currently acting in a"standby" capacity, claimed that a recent Supreme Court rulingthrows into question the constitutionality of the law.
Dunham was fired by Moussaoui, who says he wants nothing todo with his former counsel. But as standby attorney he filed amemorandum with the court this week to supplement previousdocuments opposing the government's plan to have Moussaouiexecuted if he is convicted of conspiring with the 19 hijackerswho carried out the Sept. 11 attacks on the United States.
Moussaoui was being held on immigration charges when theSept. 11 hijacked aircraft attacks occurred. U.S. officialsbelieve he was meant to be the 20th hijacker.
The 34-year-old French citizen of Moroccan descent has beencharged 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 deathpenalty is unconstitutional because it does not require a grandjury to include "aggravating factors" in its indictment.
He referred to a June 24 decision in which the SupremeCourt ruled that only juries — not judges — can impose thedeath sentence. The justices declared unconstitutional capitalsentencing schemes in five states.
Dunham said the ruling would also apply to federal law andsaid a grand jury must consider the death penalty issue in acase like Moussaoui's.
Brinkema, who had been expected to rule shortly on whetherthe government could seek the death penalty in the case, saidshe would hold off until she addressed the issue of whether theFDPA was constitutional.
She said the government and the defense had until July 22to file documents on the issue.
Moussaoui, who is not a lawyer, has urged Brinkema not toaccept any motion or memorandum filed by his formercourt-appointed defense team.
But when Brinkema ruled that Moussaoui was mentallycompetent to defend himself, she also ordered Dunham and a teamof attorneys to remain as "standby" lawyers for legalconsultation and to take over the case if necessary.
Earlier this week, Brinkema raised the possibility ofrevisiting Moussaoui's competency. In a separate order filedlate on Thursday, she reappointed Edward MacMahon to the teamof defense lawyers in an effort to ensure a fair trial.
She noted that it was "painfully obvious" that Moussaouidid not understand significant aspects of criminal law and saidhe needed help from qualified attorneys.
"The quantity and quality of the defendant's pleadingsstrongly reinforce our conclusion that standby counsel mustremain in this case," she said.
Moussaoui has filed dozens of handwritten motions to thecourt. Most of them accuse Brinkema and the defense team ofconspiring to kill him, while others claim the FBI hadconducted an uncover surveillance operation of him and the 19suspected hijackers.
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