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9/11 jurors face complex life or death decisions

Human toll, Moussaoui's mental state are key factors

From Phil Hirschkorn
CNN

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Zacarias Moussaoui is the only person to be tried in the U.S. in connection with the 9/11 attacks.

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ALEXANDRIA, Virginia (CNN) -- Jurors must answer dozens of preliminary questions before they resolve the final one: Should al Qaeda conspirator Zacarias Moussaoui live or die?

The jury returns for a fourth day of deliberations on Thursday.

In the trial's first phase, the jury found Moussaoui eligible for capital punishment, concluding that his lies to federal agents in August 2001 "directly resulted" in some of the 2,973 deaths in the September 11, 2001, attacks.

The nine men and three women who delivered the first verdict will determine the second. (Watch the jury get the case after weeks of harrowing testimony -- 1:52)

Once again, the panel will address three conspiracies Moussaoui admitted in his guilty plea last year: to commit terrorist acts transcending national boundaries, to destroy aircraft and to use weapons of mass destruction, in this case turning planes into missiles.

The jurors first must address whether prosecutors proved three "aggravating" factors, which would point toward the death penalty.

They must decide whether Moussaoui's role in the hijacking conspiracy created a grave risk of death to people besides the 9/11 victims; that he acted in a heinous, cruel or depraved manner that involved physical harm; and that he acted after substantial planning and premeditation to cause deaths.

If the jury members unanimously find at least one of the aggravating factors was proven, they then must consider seven other aggravating factors.

First, prosecutors contend Moussaoui's goal was to kill Americans when he came to U.S. flight schools, trying to earn a private pilot's license in Oklahoma in early 2001 and later enrolling in Boeing 747 simulator training in Minnesota.

Second, prosecutors charged that his lies protected the conspiracy by hiding his al Qaeda association -- resulting in nearly 3,000 deaths.

Stories of families, survivors

The most gripping prosecution testimony and evidence in the penalty phase sought to prove the next two factors -- that Moussaoui caused harm to September 11 victims' families and injuries to survivors.

Around 30 relatives of 9/11 victims and a handful of people who escaped the World Trade Center and Pentagon attacks shared their stories with the jury.

Two aggravating factors were the subject of stipulations -- that Moussaoui disrupted New York's government and economy and that he disrupted the functioning of the U.S. military headquarters.

The stipulations, statements of fact agreed to by both sides, delineated the city's loss of hundreds of uniformed emergency responders, the destruction of 12 million square feet of commercial space, billions of dollars in additional property losses and the temporary closure of the stock exchange.

For the Pentagon, another stipulation cited the destruction of 400,000 square feet of space, including a wing just renovated for $250 million, the Navy's operations center and the Army's resource management center.

The factor Moussaoui helped prosecutors prove through his own testimony is that he has no remorse for September 11.

"He wishes there were more coffins, more funerals and much more pain," prosecutor David Raskin said in closing arguments.

Meanwhile, the defense has asked the jury to consider two dozen factors that would mitigate, or lessen, the reasons for a death sentence.

High among them is the notion that Moussaoui is mentally ill and suffers from psychotic delusions. Defense experts who testified diagnosed Moussaoui as a paranoid schizophrenic and said his sisters' similar afflictions make him "genetically loaded" for the disease. Prosecutors call this argument "psycho-hogwash."

Defense: Moussaoui wants death

The defense also argues Moussaoui would become an al Qaeda martyr if he is executed.

"Death is what he wants and what he'll get only if you accommodate him," defense attorney Gerald Zerkin told jurors in closing arguments.

The defense team lists as another mitigating factor its argument that life in the nation's super-maximum security prison in Florence, Colorado, would be harsher punishment for Moussaoui than death by lethal injection.

The defense also asserts that Moussaoui wouldn't be a risk behind bars, because he had a nonviolent record during his 4 1/2 years of incarceration in Virginia.

In the spring 2001 trial of four al Qaeda operatives for the bombings of two U.S. embassies in East Africa, a majority of jurors found potential martyrdom to be a mitigating factor. That jury rejected the death penalty for two defendants. Some of those jurors also found lethal injection "humane" compared with the harsh prison confinement.

As for the personal and property damage caused by the September 11 attacks, the defense points out that Moussaoui already was behind bars as another mitigating factor.

Overall, the defense says, Moussaoui had a minor role in the hijacking conspiracy, while al Qaeda operatives equally or more culpable than him don't yet face the death penalty.

Jurors told to speak for the nation

Jurors heard summaries of statements to interrogators from some of those key captured al Qaeda operatives.

"They're going to face justice," David Novak told the jurors in the prosecution's rebuttal to Zerkin's close.

Novak asked the jurors to be a "voice for your nation" in returning a verdict for death.

"This is the United States of America, and we are not going to put up with a bunch of thugs who invoke God's name to slaughter nearly 3,000 innocent people," he said.

Once the jurors have voted on the 33 aggravating and mitigating factors for all three counts, they will vote on the punishment.

The only options the jury has are death by lethal injection or life in federal prison.

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