Terror trial on tap

Defense lawyers attempt delay

Posted: Thursday, January 03, 2002

WASHINGTON -- In little more than 20 minutes at court, two things became clear: Zacarias Moussaoui's lawyers are concerned about finding impartial jurors next fall just after the anniversary of the Sept. 11 attacks. And the judge doesn't see a problem.

Moussaoui could face the death penalty if convicted of conspiring to kill thousands of Americans in the deadliest case of terrorism on U.S. soil. He is the only person so far brought to court in connection with the terrorism attacks at the Pentagon, the World Trade towers and in the Pennsylvania countryside.

His lawyers could not persuade U.S. District Judge Leonie Brinkema to delay the trial until early 2003. She said she will begin picking a jury on Sept. 30, less than three weeks after what Moussaoui's lawyers predicted would be a deluge of news coverage and commemoration of the one-year anniversary.

''The need to be further away from Sept. 11 is obvious,'' defense lawyer Gerald Zerkin argued.

Brinkema predicted than an ''excellent jury'' could be assembled from around the suburban Virginia courthouse where she presides, despite the fact that the Pentagon is only a few miles away.

''I think we will have no trouble,'' Brinkema said during a brief court hearing Wednesday.

Brinkema said that the subject of the Sept. 11 attacks came up during jury selection in a recent, unrelated kidnapping case.

''It was surprising to me how few people from the northern Virginia (jury) pool knew someone'' who was a victim of the attacks, Brinkema said.

Defense lawyers have not said whether they will ask that the trial be moved out of northern Virginia, but the judge's remarks indicate she would reject the idea, lawyers said.

''I'm sure they'll try, but based on what she said I'm sure she'll deny it,'' said G. Allen Dale, a Washington defense lawyer who also practices in Brinkema's courthouse.

Defense lawyers for Oklahoma City bomber Timothy McVeigh successfully argued that his trial should not be held in a city where so many had connections to victims.

The jetliner crash at the Pentagon killed 189 -- 125 in the Arlington, Va., building and many local people aboard the plane -- and injured 110 more. Anyone with a direct link to the attack, such as a relative or co-worker of a victim, would presumably be excluded as a juror.

But defense lawyers are concerned about the biases of people a step or two beyond that.

''Just because you don't know someone who was killed or injured doesn't mean that you can be impartial,'' Dale said. ''We'd all like to think we can be impartial, but my God, the Pentagon is right there. We all drive past it every day. My kids could have been going by there at that time. They could have been killed.''

The judge entered an innocent plea on Moussaoui's behalf Wednesday, and set an Oct. 14 trial date. She also set a strict schedule for both sides to settle various pretrial issues, including any request to move the trial.

At Wednesday's session, Moussaoui's first appearance before the judge, his lawyers also began feeling their way through one of the most difficult issues in the six-count case. Much of the government's evidence against Moussaoui may be sensitive or classified, and there will be a complicated legal give-and-take with prosecutors about who gets to see the material and how much of it becomes public.

Zerkin noted that the defense team does not have the security clearances they will need, and predicted that the classified material will be time-consuming for Moussaoui's lawyers.

Brinkema refused to give him more time, saying the government can issue the necessary security clearances quickly.

A federal law governs how prosecutors and defense lawyers handle classified material at trial. It usually comes into play in espionage cases such as the Aldrich Ames and Robert Hanssen spy cases prosecuted in the same Alexandria, Va., courthouse. In those cases, the government's reluctance to divulge secrets was a major reason that the spies were able to negotiate plea bargains and avoid death sentences.

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