ROBERT SIEGEL, host:
In recent days, we've reported on the problems plaguing the penalty phase of the Zacarias Moussaoui trial, improper questioning, improper contact between the prosecution and government witnesses. The judge hearing the case, Leonie Brinkema, said, I don't think in the annals of criminal law there has ever been a case with this many significant problems. Well, all this raised the question for us, what should be happening right now? What's supposed to happen in the penalty phase of a federal capital case during which the jury decides between the death penalty and life in prison, without parole, presumably? Andrew McBride is a former U.S. attorney for Eastern Virginia. That's where the Moussaoui case is being heard. He's now in private practice. Welcome to the program once again.
Mr. ANDREW MCBRIDE (Former U.S. attorney for Eastern Virginia; Principal and director, KALISON, MCBRIDE, JACKSON & MURPHY, P.A.): Thank you.
SIEGEL: Most of us know that when a jury considers guilt or innocence of a crime, it applies a beyond a reasonable doubt standard. They're convinced the person did it. Is there a comparable standard the jurors are supposed to apply in the penalty phase of a trial?
Mr. MCBRIDE: There is as to the mental state and activity of the defendant, the culpability of the defendant. For instance, in the Moussaoui case, the jury must find beyond a reasonable doubt that Moussaoui committed some act which directly resulted in the death of another human being. The theory in this case being the act is a lie to the FBI that directly resulted in some or all of the deaths on 9/11.
SIEGEL: Now, wouldn't typically the claim that the defendant committed an act that resulted in death, wouldn't that be implicit in the verdict from the trial?
Mr. MCBRIDE: It would, indeed. And often the jury will be instructed, where there has been a previous trial and verdict of guilty, that they can consider all the evidence in the previous portion of the trial. But here we don't have that. In here we have an unusual theory, or a unique theory, of culpability for the death penalty, based not on the entire conspiracy, but based on a single incident of an FBI interview.
SIEGEL: So the jurors would have to be convinced beyond a reasonable doubt of something really quite conjectural, that if Moussaoui had told the truth to the FBI then, federal authorities would have taken steps which then would have prevented the 9/11 attacks.
Mr. MCBRIDE: And that's exactly where the controversy is around these aviation witnesses. These are the witnesses the government would use to testify that steps would have been taken at Dulles Airport and Logan Airport and Newark Airport that would've stopped one or all of those planes from taking off.
SIEGEL: Considering that Zacarias Moussaoui has pleaded guilty to conspiracy related to 9/11, don't you think the decision of the jury might be, in reality, somewhat looser than this? Just, he says he was involved in killing thousands of people. He should die.
Mr. MCBRIDE: Well, I think Judge Brinkema has very carefully bifurcated this penalty phase into two steps. And the first step is the one we just discussed. Then they will move to a second phase where they will consider so-called aggravating and mitigating factors. They will hear more open-ended testimony from the victim survivors, testimony from the families of 9/11.
SIEGEL: One mitigating factor in a case might be, I think the man we've just convicted (unintelligible), I think he's nuts. Does Moussaoui's lawyer have to make that case on his behalf, or can the jurors conceivably decide we've looked at this guy for months, we've seen him behave in this trial, we don't think he's all there?
Mr. MCBRIDE: Well, I think there's a difference between fanaticism and insanity. There are many people who are fanatic throughout history, I think Moussaoui is one of them, but they're not insane. I do know, and the defense has signaled, that if there is a second phase here, they plan to attempt to put on some evidence through experts that Moussaoui is a paranoid schizophrenic. And they also attempt to put a, they're going to try and put on evidence that Moussaoui is not a high-level, cold-blooded al-Qaida killer, but rather that he was viewed by his al-Qaida colleagues as a bit of a bumbler, and that he probably never would've gone through with, whether it be 9/11 or a subsequent plot.
SIEGEL: Andrew McBride, thank you very much for talking with us today.
Mr. MCBRIDE: Thank you.
SIEGEL: Andrew McBride, now a lawyer in private practice in Washington, D.C., used to be U.S. attorney for Eastern Virginia. We've been talking about the rules for the penalty phase of the Zacarias Moussaoui trial. Transcript provided by NPR, Copyright NPR.