Death Penalty Sentencing—Zacarias Moussaoui

Jury selection in Zacarias Moussaoui’s death penalty sentencing trial is set to begin today.^[1] Mr. Moussaoui has previously pleaded guilty in April to “conspiring with al-Qaeda to hijack planes and commit other crimes.”^[2] Death penalty sentencing is different than ordinary sentencing. For non-death penalty offenses, the sentencing is conducted by the federal district court judge at a hearing on the matter. For death penalty offenses however, a jury must make the determination of whether the defendant is put to death.

There are a handful of offenses for which the death penalty is available. They are:

• an offense under 18 U.S.C. § 794 (espionage during a time of war) or under 18 U.S.C. § 2381 (treason);^[3]
• any other offense for which a sentence of death is provided, if the defendant, as determined beyond a reasonable doubt at the required hearing,
  • intentionally killed the victim;
  • intentionally inflicted serious bodily injury that resulted in the death of the victim;
  • intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a result of the act; or
  • intentionally and specifically engaged in an act of violence, knowing that the act create a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and the victim dies as a direct result of the act,^[4]
• an offense referred to in 21 U.S.C. § 848(c)(1) (continuing criminal enterprise).^[5]

A hearing is required to determine whether there are mitigating or aggravating factors that should be considered before imposing a death sentence on the individual. Such mitigating factors may include impaired mental capacity, acting under duress, being a minor participant, whether there are equally culpable defendants, the lack of a prior criminal record, the consent of the victim, and other factors.^[6] Aggravating factors might include prior espionage or treason convictions, previous convictions on other offenses, depraved or heinous cruelty, pecuniary gain, substantial planning or premeditation, targeting high public officials, or multiple killings.^[7]

Another hearing, to determine whether the death penalty is justified is also required. If a government attorney feels the death penalty is justified, he must, “a reasonable time before the trial or before acceptance by the court of a plea of guilty,” file a notice that

• states that the government believes that the death penalty is justified, and
• sets forth the aggravating factor or factors that the government proposes to prove as justification for the death sentence.^[8]

If such a notice is filed, and the defendant is found guilty, or pleads guilty, the judge who presided at the trial or guilty plea “shall conduct a separate sentencing hearing to determine the punishment to be imposed.”^[9] The hearing must be before the jury that determined the defendant’s guilt, or “before a jury impaneled for the purpose of the hearing if”

• the defendant was convicted upon a plea of guilty;
• the defendant was convicted after a trial before the court sitting without a jury;
• the jury that determined the defendant’s guilt was discharged for good cause; or
• after initial imposition of a sentence, and reconsideration of the sentence is necessary.^[10]

In some situations, the hearing may be done before the court alone, if the request is made by motion of the defendant and is done with the approval of the government attorney.^[11]

The jury consists of 12 jurors (unless the parties agree to fewer),^[12] and it must unanimously find that the death penalty is warranted.^[13] In Mr. Moussaoui’s case, the jury pool consists of 83 individuals, which will be whittled down to 18; there will be six alternates.^[14] Each side will get 30 peremptory strikes, and a defense request for more was denied last week.^[15] We have previously discussed the jury selection process in connection to the Enron trial.

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[1] Matthew Barakat, Sentencing Process for 9/11 Defendant Getting Under Way, Associated Press (via San Diego Union-Tribune), Mar. 6, 2006.
[2] Id.
[3] 18 U.S.C. § 3591(a)(1).
[4] Id. § 3591(a)(2).
[5] Id. § 3591(b).
[6] Id. § 3592(a).
[7] Id. § 3592(b).
[8] Id. § 3593(a).
[9] Id. § 3593(b).
[10] Id.
[11] Id.
[12] Id.
[13] Id. § 3593(e).
[14] Barakat, supra note 1.
[15] Id.