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Judge Questions Some Moussaoui Testimony MICHAEL J. SNIFFEN / AP | May 3 2006 Judge Leonie Brinkema doubts the accuracy of some of Zacarias Moussaoui's bombshell testimony about the Sept. 11, 2001, terrorist attacks, according to a court transcript unsealed Tuesday while jurors continued to debate the fate of the confessed al-Qaida conspirator. "I still think that Moussaoui was not accurate in a lot of what he said about how much he knew about what was going to happen with which particular buildings and when," she told lawyers in the case at a closed hearing outside the jury's presence on April 21. There was no court session that Friday and on the following Monday the jury heard closing arguments, got the case and began deliberating whether Moussaoui deserves to be executed or imprisoned for life. In surprising testimony that recanted his long-standing claim that he had nothing to do with the 9/11 attack, Moussaoui testified that he was supposed to be part of that day's assault - to hijack a fifth jetliner and fly it into the White House. This testimony revived a flagging prosecution case. Moussaoui also said the only other targets he knew about were the World Trade Center towers. And he said that he knew before his arrest Aug. 16, 2001, in Minnesota that he needed to complete his pilot training there before September to be ready for an attack after August, 2001. Captured 9/11 mastermind Khalid Shaikh Mohammed has said the exact date wasn't set until after Moussaoui's arrest. The April 21 transcript, along with other sealed proceedings that occurred during the six-week trial, was released on the jury's sixth day of deliberations. The jurors, who go home every night, have been instructed to avoid news coverage of the trial. Brinkema regularly quizzes them on whether they have read or watched anything about the trial and warned them in her jury instructions that nothing she said during the trial should be taken as a comment on the evidence presented. The nine men and three women went home after 6 3/4 hours of work Tuesday, bringing their total deliberations so far to 35 1/4 hours. They are to return Wednesday morning. Also in the April 21 transcript, Brinkema noted that this jury earlier ruled Moussaoui was eligible for the death penalty for his role in 9/11 even though he was in jail at the time. Government witnesses for the prosecution testified that they could have done more to identify and stop some 9/11 hijackers if Moussaoui had confessed in August, 2001, to the facts he admitted when pleading guilty in April, 2005. "The government's theory, which the jury has accepted ... is that the failure to disclose certain information resulted in these deaths," Brinkema said. "It's such a unique legal theory and so far related from actual activity." She noted that there was "no evidence ... that Moussaoui was a planner, organizer, had anything to do with making the targeting decisions." She was rejecting a bid by prosecutors to alter her instructions on how jurors should judge whether Moussaoui was guilty of cruel and depraved behavior. Her instructions said jurors could consider only Moussaoui's actions and not those of co-defendants. This is one of three aggravating factors listed on the verdict form and the government must prove one of the three to all 12 jurors beyond a reasonable doubt. Prosecutor David Novak told her that if she left in the instruction about not considering the actions of co-defendants "there's no way for us to prove that aggravating factor." Brinkema refused to delete the instruction and said given the government's unique legal theory, the evidence about Moussaoui's role and her doubts about Moussaoui's veracity: "I think this is a fair way of evening the playing field." The defense has argued that the government's legal theory fell short of establishing Moussaoui's eligibility for the death penalty because it implied he was obligated - despite his constitutional right against self-incrimination - to confess in August 2001. Meanwhile, another transcript unsealed Tuesday revealed that the jurors decided to knock off work early this week - at 1:15 p.m. Thursday - so one juror can attend his parents' 50th wedding anniversary out of state and another juror can attend his daughter's induction into the National Junior Honor Society. Brinkema advised lawyers in the case: "Don't assume from this that the jury will necessarily go to Friday," according to the transcript of a telephone conference Monday afternoon. Her phone conference with the lawyers was prompted by notes from the jury asking for what the forewoman called "two special considerations for this week." The jury had been setting its schedule one day at a time, but late Monday it released a schedule that went through May 8 and included the early departure Thursday and a day off Friday. Some surmised then that the jurors were settling in for long deliberations. But Brinkema told the lawyers Monday, "I don't really know why they sent this (note) to us this early in the week, but, you know, obviously, they're trying to, I guess, make sure they're organized for the week." With the agreement of prosecutors and defense attorneys, Brinkema advised the jury it was allowed to set its own work schedule. ---------------------------------------------------
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