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The Last Word

By Jonathan V. Last
Weekly Standard
May 12, 2006

When the Moussaoui verdict came down last week sparing the terrorist from the death penalty, the general sense seemed to be that Moussaoui had "lost" because his true desire was to die a martyr and that the jury had done a good job in figuring this out.

Before we move on altogether, it's worth reexamining this evaluation in the light of a story in today's Washington Post. The Post sat down with the foreman of the jury, who explains that the jury voted 11 to 1 for death, over and over, and that the one holdout never identified him or herself and refused to even discuss the merits of his or her position:

The foreman said deliberations reached a critical point on the third day, when the process nearly broke down. Frustrations built because of the repeated 11 to 1 votes on one charge without any dissenting arguments during discussions. All the ballots were anonymous, and the other jurors were relying on the discussions to identify the holdout.

"Wednesday [April 26] was a very intense day," she said. "But there was no yelling. It was as if a heavy cloud of doom had fallen over the deliberation room, and many of us realized that all our beliefs and our conclusions were being vetoed by one person. . . . We tried to discuss the pros and cons. But I would have to say that most of the arguments we heard around the deliberation table were" in favor of the death penalty. . . .

The foreman said deliberations broke off April 26 when one juror questioned why they should take another vote. "What for?" the foreman remembers the juror saying, "We all know how it is going to come out."

The next day a juror called in sick, and there were no deliberations. That Friday, the jury returned. The foreman told the group that she wanted to send a note to U.S. District Judge Leonie M. Brinkema stating that the jury was "not holding deliberations in the true sense of deliberations because the con arguments were not being thrown out on the table so we could investigate them as a group."

She said the jurors did not want any notes sent to the judge, so they decided that the whole group would raise anti-death penalty issues because that way the lone dissenter would not feel isolated or "ganged up on." Deliberations continued, but the foreman said the lone dissenter still did not raise any issues. . . .

"I felt frustrated," [the foreman] said, "because I felt that many of us had been cheated by the anonymity of the 'no' voter. We will never know their reason. We will never be able to hold their reason up to the light and the scrutiny of evidence, fact and law."

So what we assumed was a finely-considered verdict was really just a case of jury nullification being enforced by a single person. That's the American system and there's no changing it. But not all verdicts are created equal. It appears as if the Moussaoui verdict was not reached in a particularly fair-minded manner or in the best of faith.

And as for the notion that Moussaoui was being given what was, by his lights, the worst possible outcome, the foreman, who should have a good sense of his general attitudes, had this to say:

"Most of the jurors didn't give much weight to Moussaoui's testimony in the first part or the second part," she said. "Though I gathered from his second testimony that he really didn't want the death penalty. I gathered that from a few comments he made."

Its hard to see the Moussaoui verdict as anything but a loss in the war on terror. As Charles Krauthammer notes, the Moussaoui lesson is that a "Civilian court--with civilian procedures, civilian juries and civilian sensibilities--is not the place for those who make war upon us."

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