The Zacarias Moussaoui defense team has decided that the best way to save Moussaoui's life—to convince the sentencing jury that the mitigating factors in his case outweigh the aggravating factors—is to paint their client as a mentally disturbed victim of abuse. They will argue that despite the horrendous nature of the crimes to which Moussaoui has confessed, his "diminished moral culpability" entitles him to leniency. To make their point, the defense is parading a series of witnesses into court to testify to Moussaoui's troubled childhood. The witnesses tell tales of an abusive father, Dickensian orphanages, and pervasive French discrimination against Muslims. The most poignant story to emerge is that of Moussaoui's longtime high-school girlfriend, whose parents mistreated Moussaoui because they considered him "a dirty Arab." Moussaoui was also deeply shaken, according to a former friend, when racist bouncers refused him entry into nightclubs. These injustices, coupled with his poverty and proximity to violence, radicalized and destabilized the young Moussaoui, ultimately turning him into an al-Qaida terrorist.
Media reports of Moussaoui's courtroom antics certainly do not inspire confidence in his emotional balance. But using a bum childhood as a vehicle to mitigate a sentence is a questionable gambit.
The "bum childhood" defense has become so pervasive that we often forget that there are more successful mitigating arguments. Studies suggest that a defendant's expression of remorse is far more likely to resonate with a capital jury than a claim of personal unaccountability. Professor Stephen Garvey showed in the Columbia Law Review that, in a comprehensive investigation into the weight jurors give to aggravating and mitigating factors, a full 39.8 percent of respondents said that the defendant's lack of remorse made them more likely to vote for death (including 21.7 percent who said that lack of remorse made them much more likely). According to Garvey, "only the defendant's prior history of violent crime and future dangerousness were more aggravating than lack of remorse."
The remorse factor presents a problem for defendants who assert innocence in the guilt phases of their trials. (Capital cases in America are bifurcated into "guilt" and "sentencing" phases.) After being found guilty, capital defendants are often placed in the awkward position of having to accept responsibility and express sorrow for what, only a few days prior, they swore they had not done. Jurors understandably find the about-face disingenuous. But for a defendant like Moussaoui, who pleaded guilty, no such conflict is presented. As of Tuesday, however, Moussaoui's only expressed regret is that more innocents did not die on Sept. 11. Moussaoui has called victims and their survivors "disgusting" and has said that he hopes they will "suffer more pain." In response to one of his own character witnesses, a Jewish man who befriended him, Moussaoui shouted "Death to the Jew!" The "remorse factor" is not a viable option for the defense team.
Moussaoui's lawyers are left with what I have called "the abuse excuse," the tactic by which criminal defendants claim a history of abuse as an excuse for violent retaliation. The trouble with this tactic is that, if the jurors think about it, they will realize that it doesn't make much logical sense. Lots of people of Middle Eastern and North African descent grew up in France. Lots were raised in poverty. Many faced racial or religious discrimination, or otherwise experienced difficult childhoods of some sort of another. But only a tiny minority of those who experienced those conditions, and sometimes much worse, grew up to participate in conspiracies to murder thousands of people by terrorism. According to the New York Times, the prosecution has already highlighted this point. In his cross-examination of Moussaoui's sister, Assistant U.S. Attorney David J. Novak noted that their brother, Abd Samad, who "endured the same difficult home environment," is now a "successful engineering teacher in France and not a terrorist."
In addition to the illogic of the abuse excuse, it poses the threat that, if taken seriously, it could have dire consequences for precisely the people "represented" by the defendant. If you accept the notion that someone is less responsible for his actions based on his demographics, socioeconomics, or history, you are also making the case for racial profiling and a slew of liberty-curtailing state actions, such as the surveillance and preventive detentions of entire categories of people. After all, what Moussaoui's defense team is essentially alleging is that Moussaoui is not as morally culpable as he might otherwise be, because poor Muslim immigrants are not capable of controlling their rage. It is a profoundly anti-Muslim and anti-immigrant position. The abuse excuse is always a two-edged sword: It might help a particular defendant, but it is bad for the groups to which that defendant belongs, and it is bad for the society that loses the capacity to demand personal accountability from all its members.
American courts have closely circumscribed the types of abuse excuses available to criminal defendants. Battered-woman syndrome has achieved the most success. Though BWS's existence is controversial within the medical community, courts generally allow expert testimony to explain why a battered woman could not simply leave her batterer. Other proffered excuses, such as the "urban survival syndrome," the "black rage" defense (as per William Kunstler's coining), Cherambault-Kandinsky Syndrome (AKA "lovesickness"), "fan obsession syndrome," "football widow syndrome," "Gone with the Wind syndrome" (the perception that violent rape is consensual), "premenstrual stress syndrome," "adopted child syndrome," and "Holocaust survival syndrome," have been markedly less well-received by the courts. All these newly minted "syndromes" share similarly vague psychobabble symptoms: disaffection, marginalization, and stigmatization. And these are the same words that are now being used to characterize Moussaoui.
We might call Moussaoui's alleged condition the "impoverished French Muslim syndrome." To be sure, that status signifies a difficult environment in which to live. But it is not really a medical syndrome, and it hardly diminishes one's culpability for violence and terrorism.
I am against the death penalty, and I hope that the jury will not vote to execute Moussaoui. But I also hope that the jury will not use his race, nationality, and childhood as the hooks upon which to hang its clemency. As Moussaoui has commented on his defense lawyer's strategy: "A lot of American B.S!"
On that point, and that point alone, Mr. Moussaoui and I agree.