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New indictment against Moussaoui reflects Supreme Court ruling

Action may give U.S. option of seeking death penalty

Zacarias Moussaoui

ALEXANDRIA, Virginia (CNN) -- A federal grand jury Tuesday re-indicted accused terrorist Zacharias Moussaoui in a move designed to clear the way for the death penalty if he is convicted on any of the four capital crimes with which he is charged.

Federal prosecutors went back to the grand jury to get a third indictment as they continue to refine the charges that Moussaoui will face when goes to trial this fall.

In a notice of special findings in the new indictment, federal prosecutors inserted language that would allow a jury to find the aggravating factors necessary to impose the death penalty.

The changes reflect the mandate in a recent Supreme Court ruling, Ring v. Arizona, in which the court held that only juries, not judges, must find any facts crucial to the imposition of the death penalty.

Last week, Frank Dunham Jr., a defense lawyer assigned to Moussaoui by the Court, filed a motion claiming the Supreme Court ruling means the death penalty could not be imposed if Moussaoui is convicted.

RESOURCES Superseding indictment, July 16, 2002: U.S. v. Moussaoui  (FindLaw document, PDF format)   MORE STORIES • Moussaoui praises bin Laden in court documents  • Al Qaeda may be planning attacks  • TIME.com: At the crossroads of terror      LEGAL RESOURCES Latest Legal News Law Library FindLaw Consumer Center Select a topic Bankruptcy Discrimination Divorce Estate Planning Landlord-Tenant Personal Injury Taxes

"I don't think you can fix it just by putting aggravating factors in the indictment," Dunham told CNN Tuesday.

"We will stand on our papers already filed saying the death penalty is no longer workable in light of Ring vs. Arizona," Dunham said.

U.S. government lawyers did not respond directly to Dunham's motion, but apparently decided to change the indictment to try to resolve any questions stemming from the high court ruling.

The federal death penalty law draws a line between crimes that can trigger a death sentence and those that cannot. Murder by itself does not make a defendant eligible -- there must be what prosecutors call aggravating factors, or circumstances of the crime, which make it particularly egregious.

The four counts that carry a potential death penalty are conspiracy to commit acts of terrorism transcending national boundaries, conspiracy to commit aircraft piracy, conspiracy to destroy aircraft and conspiracy to use weapons of mass destruction.

The new indictment alleges the crimes were committed:

-- Knowing that the act created a grave risk of death;

-- That participation in the act "constituted a reckless disregard for human life and the victims died as direct result of the act";

-- That the acts were committed "in an especially heinous, cruel and depraved manner in that they involved torture and serious physical abuse to the victims;

-- That they were committed "after substantial planning and premeditation to cause the death of a person and commit an act of terrorism."