Jury to see portrait of terror
WASHINGTON — In a federal courtroom in Alexandria, Va., the sights and sounds of a national trauma are about to go on display as never before.
Prosecutors seeking the execution of Zacarias Moussaoui will relive the horror of Sept. 11, 2001, for the jury. They will play tapes of desperate 911 calls from inside the World Trade Center, along with the cockpit voice recorder documenting the struggle of passengers to take over hijacked United Airlines Flight 93 before it crashed in Pennsylvania.
And the government plans to call as many as 40 family members and survivors to tell their stories of loss. It is the culmination of a four-year effort by the prosecution to knit together a portrait of terror far beyond a normal death penalty trial, and it includes an unprecedented effort to reach out to the victims of Sept.11.
Some wonder if it will be too much for the jury — and the victims themselves — to bear. “I think these people testifying will be unsatisfied and many will just end up reliving the trauma,” said Richard Moran, a sociology and criminology professor at Mount Holyoke College who has testified in more than two dozen death penalty hearings. “They should have limited it to four to five people. Why put everyone through thatâ¢ Why put the jury through that?”
But as Moussaoui’s sentencing trial moves into its final phase today, family members and victim advocates said they welcome the decision to lay bare the most intimate details of the hijackings that killed nearly 3,000 people. “It’s important to replicate the horrors of 9/11 so the jury can make a fair and informed decision,” said D. Hamilton Peterson. His father, Donald Peterson, and stepmother, Jean Peterson, perished on Flight 93 when it crashed in a Pennsylvania field.
Moussaoui, 37, the only person convicted in the United States in connection with Sept.11, was found eligible for the death penalty Monday. Jurors will now consider whether he should be executed. They will weigh a list of aggravating factors submitted by prosecutors — ranging from Moussaoui’s lack of remorse to the destruction the attacks caused in New York — against mitigating factors that include Moussaoui’s troubled mental state.
Federal prosecutors in Alexandria declined to comment yesterday. But they have said previously that they began preparing for the final phase of Moussaoui’s trial the day after he was indicted in December 2001.
“We decided to go out and do the most thorough victim interview process of all time because there’s never been a crime in American history like the attacks of September 11,” then-U.S. Attorney Paul McNulty said in an interview in 2003.
Until the past 15 years, victims rarely testified in criminal cases. A series of U.S. Supreme Court decisions said their testimony would violate the constitutional rights of the defendant. But a 1991 Supreme Court decision reversed the prohibition. A victims rights movement that had been building since the 1960s gained more steam, and victim impact testimony is today a regular part of federal death penalty cases.
Yet, the number of victim witnesses has rarely approached what prosecutors are planning for Moussaoui’s case. The only case that comes close, victim advocates said, was the 1997 trial of Timothy McVeigh, who bombed the federal building in Oklahoma City. McVeigh was executed in 2001.
Under federal law, family members of those killed or injured Sept.11 also are considered victims, entitling them to such rights as being notified of developments in the case.
To find family members and Sept.11 survivors to testify against Moussaoui, prosecutors mounted a massive outreach. They compiled a database of more than 8,000 Sept. 11 victims, talked to nearly all of them by phone and have regularly alerted them to developments in the case. They traveled across the country to interview more than 1,000 people in person.
The “victim impact project” created a historical record of the attacks, officials have said, and cast prosecutors and FBI agents in the unusual roles of therapists and grief counselors. Prosecutors and agents cried during interviews, talked to family members late into the night and helped them with things like arranging quick security clearances when family members wanted to visit the victims’ memorial at the Pentagon.
“They have handled this with sensitivity,” said Mary Lou Leary, executive director of the National Center for Victims of Crime in Washington. “It was the prosecutors and the agents saying: ‘I know who you are. You’re not just a number, you are a real person with your own personal story, and I want to do what I can to help you.”‘
Prosecutors have not revealed which family members will testify but have said they chose a cross section of people, representing all of the hijacked flights. The testimony is one part of a flood of Sept. 11-related evidence that will include the name of every victim and as many of their photographs as possible.
Some defense lawyers call the effort excessive. “It is entirely fitting that victim survivors be heard in the criminal justice system, but a criminal trial is not an occasion for national grief and mourning,” said David Bruck, a death penalty expert who heads the Virginia Capital Case Clearinghouse at Washington and Lee University. “We need to separate national catharsis from the criminal justice system, otherwise we have the justice of the mob.”
But Leary said prosecutors limited the number to about 40 after several hundred Sept. 11 family members expressed interest in testifying. “I think it’s important for the court to hear from the victims,” she said. “I don’t think this is excessive at all.”