Who Are You Calling Crazy?

Terrorism on Trial

Who Are You Calling Crazy?

Terrorism on Trial

Who Are You Calling Crazy?
The law, lawyers, and the court.
June 14 2002 1:46 PM

Terrorism on Trial

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Zacarias Moussaoui and his judge fight over who's the boss.

Ignoring for a moment his fervently expressed hope for the "destruction of America," it would be easy to cast Zacarias Moussaoui as a lone David with a vast American Goliath—biased courts, judges, witnesses, and jurors—arrayed against him. One can imagine newspapers across the Arab world, clucking their tongues at the kangaroo trial in Virginia to scapegoat Moussaoui and mock Islam. Indeed that's probably the effect Moussaoui's striving to achieve.

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Don't pity him too much though: Moussaoui is more than holding his own. At yesterday's competency hearing in federal district court in Alexandria, he made it plain that he'll be a formidable opponent for Judge Leonie Brinkema. Of course, we don't run trials that way in this country—the accused versus the judge—but that's how Moussaoui is running his trial, and he's pretty much getting what he wants.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

First, Judge Brinkema deems Moussaoui competent to stand trial. He is clearly able to confer with his lawyers (or he would if he didn't think they were trying to kill him) and to understand the nature of the charges against him. Brinkema turns to the issue of his competency to fire his counsel. Based on the evaluation submitted by court-appointed psychiatrist Dr. Raymond Patterson, reports from Moussaoui's prison guards, and on her own observations in pretrial hearings, she thinks he's competent.

Brinkema bears a near-perfect resemblance to the Grandma's Cookies lady and has an inner kindergarten teacher who pops out intermittently. For instance, she believes Moussaoui is not mentally ill because he keeps his cell neat and has good hygiene. (Later on in the hearing, when Moussaoui says he hopes the judge will not "suppress my mouth," she answers, tartly, that "the mouth can be suppressed if it is out of control.") But Brinkema's oddest pronouncement today is that Moussaoui's "dramatic" writing style and "flair for adjectives" reflect "cultural differences" as opposed to mental incompetence. Moussaoui is French, born of Moroccan parents, and the product of French and British grade schools and universities. It's unclear whether Brinkema is implying that Moussaoui's inappropriate courtroom behavior is culturally "French" or "fundamentalist Muslim." Or whether it's her politically correct way of saying that the willingness to die while killing Americans isn't necessarily a pathology; it's a culture.

Moussaoui's court-appointed lawyers urge the judge to conduct further evaluations before allowing him to represent himself. A frustrated Frank Dunham Jr. cites Moussaoui's "erratic thoughts," "inconsistent demands," and "mood shifts," saying, "I do not think you can write them off to culture." In the end, though, all Dunham has proven is that his client is either too grandiose or too suspicious to agree with his counsel on trial tactics. That's not insanity either.

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The judge must walk Moussaoui through a colloquy before he may waive counsel. He approaches the lectern. His face looks less spherical, more gaunt now than it did on the day of the orange jumpsuit. He's grown his beard out. His green prison uniform hangs off his shoulders. But it's clear that this is his trial, his show, and that he considers everyone—his former defense counsel, the prosecution, and even the mother he hasn't seen for five years—incidental today. This is between him and Judge Brinkema.

Moussaoui speaks with a strong French accent, with what would be charming word mix-ups, were it not for the fact that he'd like to kill all Americans. When he seeks clarification, he asks, "Can you precise this?" Instead of answering yes or no to the judge's questions, he answers, "absolutely" or, "I understand fully." When she asks if he understands that, if convicted, he is not eligible for parole, he says, "I will never see the light again."

Moussaoui then reveals that he has a lawyer, whom he will not name, a Muslim who visited him in his jail cell and contacted Judge Brinkema thereafter. "I would like you to confirm that you have received such a letter," he demands.

Brinkema explains that his secret lawyer may not pass a background check and introduces his mother and Randall Hamud, the Muslim lawyer she's retained on his behalf. Moussaoui turns, gives his mom the traditional Little League "Hi, Ma" wave, and then politely explains that his mother does not know jack about hiring attorneys: "My mother, she is a mother, and she wants to help her son. ... she does not speak English, and she does not understand the implications of this case. ... I cannot trust my life to someone in contact with these people."

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Then, Moussaoui gets down to business. He has one piece of evidence that he insists will set him free. He reads a London address into the record, spelling it out carefully. The judge cuts him off. "Before you start talking, I have to finish my colloquy." Moussaoui agrees: "I understand fully. But this address might have me leaving the jail today." Brinkema insists on completing her colloquy, asking whether he understands that he will have severely restricted access to information and research and that he will not have the skills to preserve objections for appeal. Moussaoui responds, over and over, "absolutely" and, "I am fully aware of this." He wants to get back to his silver bullet, the London address.

A squabble ensues about whether Moussaoui's court-appointed lawyers will be retained as "standby" counsel. They will. Throughout these discussions, Moussaoui keeps trying to redirect the court to his main point. He has "secret information that is exculpatory for me," and "I want to say my address in London." Finally, the judge snaps. "When I'm talking, no one else talks ... when an attorney stands up, you stop talking." She threatens that marshals will enforce this. "Do you understand that?" she asks.

"Yes. I understand. I would like to know one thing. Now that I am potentially my own lawyer, I would like to make a motion for my own release." It goes on like this all afternoon. He attempts, several times, to state for the record why his attorneys are working with the government to have him executed. "My credibility is undermined by them saying I am crazy." The fact that he is undermining himself by actually acting crazy seems to escape him.

One final tussle occurs over Moussaoui's new computer. His public defenders went to the trouble of procuring a computer for him, but he won't accept it from them. The judge gets him to agree that one of the prison officials can plug it in, and he is satisfied.

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As the judge tries to get through the final logistical issues regarding his self-representation, he interrupts her again: "Is it true you have the power to release me from jail?" She says she does. He asks for a pen and paper to write out an "emergency motion" for his release. His defense theory seems to be that since the British secret police searched his London address, the U.S. government has monitored his whereabouts and "engaged in a covert operation against me and the 19 other hijackers. …"

Nineteen other hijackers?????

Moussaoui cannot understand why the judge won't just give him 10 minutes to free himself: "I have asked for the ability to have a piece of paper and a pen for an emergency motion. … The government knew who I was, were closely monitoring me. … I was not in contact with the people who did the hijacking. I can prove it just by looking at my address. …" (His theory isn't entirely absurd. There is no claim in the indictment that Moussaoui had direct contact with the 19 hijackers. And as Slate has detailed elsewhere, he may have been preparing himself for an independent, second attack.)

All afternoon long, he lectures her, and she scolds him. He feigns deference, she feigns patience. Sometimes it looks like Moussaoui is strutting and fretting across her stage, but a moment later, she appears to be flailing across his. They aren't just in a power struggle; they are struggling over which of them is the rational one. At one point during the hearing, Moussaoui's lawyer Frank Dunham states that if he's not crazy now, Moussaoui will be by the end of trial. The same can be said of Judge Brinkema, I'm afraid. It's now just a matter of whose will is stronger.