Published pril 26, 2002 /

In a hearing this week, the public heard for the first time from Zacarias Moussaoui, the so-called “20th hijacker” on trial in Virginia. If Moussaoui was indeed trained to seek suicidal expression, he was in rare form in Virginia where he is attempting the closest legal equivalent.

The turmoil began when Moussaoui appeared with his counsel and meekly raised his hand. When Judge Leonie Brinkema acknowledged him, Moussaoui let loose with a tirade against the United States, Israel, the court, the prosecution, and, most importantly, his own attorneys. Moussaoui accused his attorneys of pursuing “greed, fame, and vanity” in the case. He insisted that they were actively assisting the government in his execution.

Moussaoui then lashed about at the judge as “a field general” leading what he described as a “sophisticated version of the kiss of death.”

So as to guarantee not to leave any potential juror free of attack, Moussaoui announced that he was a “slave of Allah” who prayed continually for “the destruction of the United States of America” and “for the destruction of the Jewish people and state.” He then got down to more mundane matters and asked for either the appointment of a “Muslim lawyer” or the right to represent himself. Moussaoui noted that he has $30,000 to pay for a Muslim attorney.

As a threshold matter, Moussaoui does not have $30,000. The government has that money and insists that it was a subsidy from the al-Queda organization to participate in the September 11th attacks. Moreover, even if he could get the government to release the money, $30,000 would not last beyond pre-trial motions.

In order for Moussaoui to secure a court-funded “Muslim lawyer,” the judge would have to accommodate his discriminatory “tastes” for counsel. However, the Constitution should not be a credit card for the discriminating fanatic. There is no reason why the court should yield to such a demand any more than it would tolerate a white supremacist’s demand for a white lawyer.

That leaves self-representation. Of course, after his inaugural performance in the hearing, no one wants Moussaoui to turn the proceedings into the circus of the unhinged. However, to deny his request for self-representation, the court would have to find Moussaoui unfit to represent himself. Such a finding could jeopardize the outcome of the case for the government. If Moussaoui is unfit to represent himself, it would raise questions of whether he is legally competent to stand trial or to receive the death penalty.

If Moussaoui is found to have “knowingly and intelligently” waived his right to counsel, the Supreme Court has held that he must be given the opportunity to represent himself. This will mean that the self-proclaimed “slave of Allah” will have the opportunity to make opening arguments, examine and cross-examine witness, and make objections. Since the same rules of evidence apply, it is unlikely that he will succeed in the most minimal efforts of self-representation. However, a self-represented defendant cannot later claim “ineffective counsel” and he could be executed without putting on any real defense.

The court will likely retain Moussaoui’s current defense counsel as “friends of the court” to sit next to Moussaoui throughout the trial in case he changes his mind. Things are likely to then go from bad to worse. While a defendant can be excluded from the courtroom if he refuses to comply with the court’s orders, it is a bit dicer when the defendant is also the defense lawyer. Yet, Moussaoui may inevitably be forced to watch portions of the trial by remote television leaving only the government in the courtroom. Moussaoui would then be sentenced to die on the basis of a trial almost entirely composed of government witnesses and argument. This worst-case scenario is not just possible but likely.

What is disturbing is that there appears to be considerable room to challenge the charges against Moussaoui. The evidence introduced against him is highly circumstantial and some of the legal charges are questionable. These defenses will likely be lost in the ravings of a zealot. That will neither serve the ends of justice nor Zacharias Moussaoui.

Of course, the Constitution does not protect a defendant from self-inflicted wounds. If the government is correct about his alleged training as a suicide bomber, Moussaoui may have finally found an avenue for his unique self-destructive form of expression.