Even if the misconduct of government lawyers fails to scuttle prosecutorial efforts to get the death penalty for alleged 9/11 co-conspirator Zacarias Moussaoui, it's become clear less than a week into this strange penalty phase that U.S. District Judge Leonie Brinkema is a lot less than sold on the government's theory of Moussaoui's culpability. Last Friday she warned prosecutors that their legal basis for seeking the death penalty may be untenable: "I don't know of a case where failure to act … is the basis for the death penalty," she warned.
It's clear, as the proceedings unfold, that this curious legal theory lies at the heart of the prosecutors' case: In this jury hearing to decide whether Moussaoui will live or die, the government is basically arguing that he himself could somehow have prevented 9/11 from happening. Moussaoui says, in response, that the government had enough information to stop 9/11 all by itself, had it not been negligent in analyzing that information. Thus, the hearing is beginning to sound strangely like a medical malpractice case or a personal-injury suit about contributory or comparative negligence. As these parties bicker among themselves over which of them was more responsible for the deaths of 9/11, and how much more liable the other side may have been, the hearing has morphed from a criminal proceeding into a modified toxic tort trial. How did this odd hybrid proceeding come about?
The answer lies in the nature of federal conspiracy law, compounded by the weird way the death penalty gets folded into the federal criminal code.
Let's establish a few predicates: Under modern Eighth Amendment law, the death penalty pretty much can be imposed only for murder—usually what is called first-degree murder or whatever the highest level in a jurisdiction would be. Second, if a bunch of people all agree to commit a murder and only one of them commits that murder, criminal law usually provides that all conspirators would normally be guilty of that murder. Now stop and note the causation issue here: To convict Bad Guy Joe of murder, the prosecutor doesn't have to show that Joe was necessary to the killing or that the victim would have survived if Joe hadn't been involved. Whether you call it conspiracy law or accomplice liability law, she need only show that Joe in some way agreed to, encouraged, or assisted in the killing. Events have multiple, overlapping causes, especially when you have a bunch of bad guys all trying to pitch in and help do evil. For conspiracy-law purposes, it only matters that Joe did something that could conceivably have helped the result to occur. So, generally speaking, "causation" becomes a rather minor requirement for a traditional conspiracy charge.
Now in some jurisdictions, but especially under federal criminal law, conspiracy law is even broader: If a bunch of people conspire to commit, say, a burglary, and one of them kills a security guard in an unexpected, but foreseeable, encounter at the burglary site, then if that shooter is guilty of murdering the guard, so are all the other conspirators, even if they never agreed among themselves that anyone would be killed. And once again, each conspirator need only be shown to have played some potential causal role in the death—nothing more specific than that is needed to prove Joe's guilt.
Next: Let's now say the murder isn't an accident. The conspirators agree that one of them will commit murder, or in the burglary hypothetical above, that the bad guy who encounters the security guard will kill him deliberately. Again, in this situation each conspirator might become eligible for the death penalty. The prosecutor does have to add one element to the mix to convert murder liability to potential capital murder eligibility, however. She has to show that when Joe did whatever he did to enhance the likelihood of a murder occurring, he did so with a state of mind called "extreme indifference to human life." Roughly translated, this means that when he agreed to the relevant crime or offered his assistance, he recognized that there was a significant chance that it might lead to death, and he nevertheless showed callous indifference to that prospect. Once again, it need not be shown that he played a very significant causal role in the murder. If it does get as far as a death-penalty hearing for him, Joe can still argue in mitigation that his role was minor—but that's a mitigation argument that the jury can buy or not; it doesn't bar him from possible execution.
Now all of this assumes that when we speak of murder, we mean it in a simple conventional sense. But federal criminal law is different. Most murder, like most violent crime, involves violations of state law. Federal criminal law is supposed to be limited to special areas of federal concern. Of course, what sorts of crimes are of "federal" concern is an immensely complex matter and a huge part of American legal history. But roughly speaking, a federal murder has to have something to do with federal officials, federal facilities, interstate commerce, or national security.
Which brings us, at last, to the federal charges against Zacarias Moussaoui. The crimes to which he pleaded guilty involved conspiring to violate certain peculiarly federal laws that usually, and sometimes by definition, involve murder but aren't murder per se. Rather, they're phrased in such a way as to identify the particular federal concern or issue, to thereby clarify why this crime can constitutionally be punished by the national, as opposed to the state, government.
Thus, the critical filing in this case, the "Notice of Intent To Seek a Sentence of Death," mentions such clearly federal crimes as conspiracy to commit acts of terrorism transcending national boundaries, conspiracy to commit aircraft piracy, conspiracy to destroy aircraft, and conspiracy to use weapons of mass destruction. And since these crimes often involve violent death, they can sometimes be punished capitally. But—and here's the sticky wicket—rather than create a distinct federal murder statute, federal law attaches a potential death penalty to these and myriad other crimes. If you commit one of those peculiarly federal crimes, and if the actions that violate those statutes are done with intent to kill or extreme disregard for human life, and if the victims died as a "direct result of the act," you can be eligible for the death penalty. This last phrase is telling. It seems to import a strong causal requirement that normally would not apply in multiple-defendant murder cases.
In short, to get the death penalty here, the government has some burden to prove that Moussaoui's collusion with the hijackers really did lead to 9/11, and not just that he was involved in some vague conspiracy to do bad stuff with them. This is very hard to do. In fact, it would appear that while Moussaoui was in some vague association with the hijackers that was supposed to lead to some terrorist acts, he may not have had much of anything to do with the specific 9/11 attacks. Now recall that under conventional state law this would not be a problem for the government. Terrorist violence may have been within the scope of the aim of the conspiracy or was certainly a foreseeable byproduct of whatever Moussaoui did clearly play a role in—i.e., developing the terrorist network.
But under these strange federal criminal statutes, the government has to prove something more: this thing called "direct result."
So if it can't show that deaths occurred as a direct result of Moussaoui's actions, what then? Apparently the government has shifted the burden of proof back onto Moussaoui, now arguing that once he got involved in the big conspiracy and was on notice that some of his cohorts might at some point fly some planes into some New York buildings, he had some duty to stop them. In other words, goes the theory, he caused the crashes by not stopping them when he had a duty to stop them.
Now this is a very strong moral argument. But it's a lousy legal argument. It stretches federal criminal law into uncharted and perhaps unfounded territory. Some might even argue that it implicates Moussaoui's Fifth Amendment rights—can it really have been a capital crime for him not to incriminate himself?
You cannot listen to the prosecution's increasingly strange theory of causation without recognizing that they have somehow imported what sounds like medical malpractice analysis into this federal criminal trial. Where but in this death-penalty proceeding would you witness the odd spectacle of defense and prosecution arguing over whether Moussaoui was 8 percent or 11 percent responsible for the attacks on the Twin Towers, and whether the government (through its negligent investigation of this and other leads) was 12 percent or 19 percent responsible? This isn't how federal criminal conspiracy law works. It's not really how criminal law works at all.
If Judge Brinkema really does take the death penalty off the table today in the wake of egregious procedural mistakes made by the government side, a lot of angry people will protest that Moussaoui was allowed to live because of a legal technicality. But the government's creation of a quasi-tortious new federal crime of "failure to disclose criminal conspiracy leading to decreased probability of plot-foiling"was the real, substantive problem with this trial, almost from the outset.