The Zacarias Moussaoui jurors split the difference.
It started off as a bad week for juries. A juror in the California terror prosecution of Hamid Hayat came forward, shortly after voting to convict a young man on charges of offering material aid to al-Qaida, with a disturbing affidavit detailing just how supercharged it can get in the jury room when alleged terrorists are on trial for the odd new crime of having a "jihadi heart." The juror agreed to convict, in the face of a good deal of pressure and ridicule. Then she changed her mind.
To hear Arcelia Lopez tell it, the jurors involved in the Hayat deliberations were a set of Bad Jury clichés: The angry racist foreman who was lobbying to "hang" the defendant from the get-go; the overly "sensitive" minorities who took umbrage at the foreman's suggestion that all Arabs look alike; the blatant violations of the rules against jurors learning of the case in the media; and the unremitting whining about the toll this jury service was taking on everyone's physical health, with clinical symptoms ranging from one juror's stress-related "drinking and overeating" to migraines. One of my colleagues commented that Lopez's affidavit is precisely the sort of document cynical law professors show idealistic students to prove to them that the jury box is not about justice.
Yet earlier today, nine men and three women, on their seventh day of deliberations in the biggest terror case in U.S. history, somehow deliberated their way to perfect justice.
In working through the 42-page special verdict form, these jurors, one of whom had used a dictionary to look up the word "aggravating," appeared to have understood and acknowledged that this country will not tolerate terrorists who come here with plans to kill innocents, but that possessing such a bad heart—in the absence of real terrorist activity—is not enough reason to be executed.
The jury unanimously found two of three key aggravating factors to be true: that Moussaoui "knowingly created a grave risk of death" for innocent victims beyond just those who perished on Sept. 11, and that he committed his acts with "substantial planning." But in refusing to find what seemed the most obvious of the aggravating factors, that he "committed his crimes in an 'especially heinous, cruel, or depraved manner'," or that Moussaoui—in jail on 9/11—was responsible for nearly 3,000 deaths, the jurors seemed to be acknowledging that while Moussaoui wanted 9/11 to happen, wanted many more innocents to die, and that he plotted and planned for a future 9/11, he wasn't sufficiently central to this particular plot to be credited, or killed, for its hideousness.
And that's the message we can also glean from the jury's findings of mitigating factors—revealing that three separate jurors believed Moussaoui had "limited knowledge of the 9/11 attack plans" and three believed he played a minor role.
In the end, the only real link between the acknowledged fact that Moussaoui was a terrorist who was willing to die in a suicide attack and the actual attacks of 9/11 existed in the minds of the prosecution. And, at the last minute, these links sprang to life in the fantasy world of the terrorist himself, who cooked up a strange Forrest Gump plot—starring himself and Richard Reid—that the judge herself considered to be hooey and that even the prosecutors didn't believe.
This case was about a conspiracy, about some factual connection, however attenuated, between Zacarias Moussaoui's jihadi heart and the events of 9/11. And although the government has steadfastly stood by its legal claim that it was enough for Moussaoui to have wanted to be on those planes on 9/11, enough for him to have delighted as those planes went down, the jurors recognized this afternoon that a conspiracy to aid in a terror plot requires more than just a bad heart, and more than mere willingness to participate in the next one.
This decision, which will doubtless bring with it some serious national fallout, is more subtle, and more courageous, than the prosecution itself. Acting as a check on a runaway state, these jurors refused to allow a government needing a scapegoat and a man wishing for martyrdom to stand in the way of the facts. These jurors understood that for this country to kill a terrorist for his ideas, hopes, and dreams is not much different than the terrorist's desire to come here and kill us for ours.
Dahlia Lithwick writes about the courts and the law for Slate.
Photograph of Zacarias Moussaoui courtesy of the Sherburne County Sheriff's Office/Getty Images.