By GREG GORDON
A federal jury sorted through hundreds of exhibits and conflicting testimony for seven hours Thursday but did not reach a verdict on whether Zacarias Moussaoui is eligible for a death sentence for contributing to at least one Sept. 11, 2001 fatality.
The jury of nine men and three women, who also deliberated for more than an hour Wednesday, is confronted with an unusual juxtaposition: the confessed al Qaeda conspirator effectively became a prosecution witness this week, while his lawyers tried to discredit him.
The fate of the 37-year-old Frenchman of Moroccan descent revolves around two issues:
_ Whether he lied to federal agents who arrested him in Minnesota, 26 days before the attacks, to allow the suicide hijackings to go forward.
_ Whether the government would have been able to save at least one of the 2,972 fatality victims if he had been truthful.
After several hours of deliberations, jurors sent a note to U.S. District Judge Leonie Brinkema asking what a weapon of mass destruction is. The judge responded that such a weapon might be a plane converted to a missile.
Moussaoui pleaded guilty a year ago to six counts of joining the Sept. 11 hijackers in a plot to seize U.S. jetliners and slam them into prominent buildings. One of three capital counts charges him with conspiracy to use a weapon of mass destruction.
Moussaoui’s credibility is among issues with which the jurors must grapple. In pleading guilty, he denied knowing details of the Sept. 11 plot _ a denial that became a central theme of his defense.
But Monday, testifying over his lawyers’ objections, Moussaoui declared that he came to the United States to kill Americans and was to fly a fifth plane into the White House on Sept. 11. He also reaffirmed that he lied to Minneapolis FBI Agent Harry Samit about why he was taking lessons in flying a 747 jumbo jet so the hijacking operation would not be disrupted.
In closing arguments on Wednesday, prosecutors seized on Moussaoui’s revised testimony as evidence that he was part of the 9/11 plot.
But defense lawyer Edward MacMahon told the jury that "you can’t believe anything he says."
MacMahon pointed to statements from a half-dozen al Qaeda captives, including admitted Sept. 11 mastermind Khalid Sheik Mohammed, that were read into the record during the trial. In declassified summaries of their statements to interrogators at undisclosed foreign sites, the captives who were involved in the plot described him as a nuisance and either denied he was involved or said he was training for a second-wave attack.
In her jury instructions, Brinkema emphasized that the captives’ statements "were made under circumstances designed to elicit truthful" responses.
U.S. intelligence operatives overseas, or the foreign governments that assist them, have been described as using techniques approaching torture to extract information that might help thwart future terrorist attacks.
The jury also must ponder conflicting pictures of the government’s ability to have stopped the terror attacks. A prosecutor said Moussaoui’s cooperation would have made it a "no brainer" that the FBI and Federal Aviation Administration would have identified at least 11 of the 19 hijackers and kept them off planes. But defense lawyers heaped before the jury evidence of bureaucratic bungles and missed clues in the months before Sept. 11 _ including FBI headquarters’ brush-off of Samit’s repeated warnings that Moussaoui was preparing for a hijacking.
If Moussaoui is found ineligible for a death sentence, the trial will end and he will face life in prison without the possibility of release. If he is found eligible, jurors will decide whether to actually impose a death sentence during a second phase of the trial. In a penalty phase, they would hear dozens of family members of Sept. 11 victims describe the impact of their losses while defense lawyers present testimony that Moussaoui’s turbulent upbringing in southern France made him prey, when he went off to college in England, for recruitment by radical Muslim mosques.