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Exhibit A: heartache

Prosecutors will revive 9/11 emotions to persuade jurors to kill Zacarias Moussaoui.

April 06, 2006|Andrew Cohen | ANDREW COHEN is CBS News' chief legal analyst.

IT ONLY GETS WORSE from here for jurors in Zacarias Moussaoui's case, who earlier this week voted unanimously to continue his capital sentencing trial by linking him beyond a reasonable doubt to the 9/11 hijacking plot. Now those same folks, who already have given so much of their time and energy, will hear and see and feel the brunt of the emotional force left in the wake of those terror attacks.

By declaring Moussaoui eligible for the death penalty, the panel of nine men and three women triggered the next phase of his sentencing hearing. After a month of mostly dry testimony from federal agents, now comes the part of the trial that generates the tears and the heartache and the pain.

Having been unleashed by U.S. District Judge Leonie M. Brinkema, federal prosecutors now will bring in front of the jurors 9/11 survivors and the family members of victims who will tell the panel about how that awful day forever altered their lives. The feds also will bring into court huge models of the Pentagon and the World Trade Center and try as best they can to transport jurors back to that horrible time and those doomed places.

If the first part of this sentencing trial was in the main about law and logic, the second part is destined to drip with sorrow and empathy.

Jurors are expected to hear audiotapes from inside the hijacked planes and from 911 calls placed by victims on the highest floors of the Twin Towers -- in unredacted form. Prosecutors intend to play for them cockpit voice recordings never before released and to show them videotape taken from the crash sites. Prosecutors also intend to read in court all of the victims' names and show to the panel all of their photographs. E-mails sent by the victims that morning will be read aloud. Letters they wrote and mailed, but which were delivered after their deaths, will be shown to jurors. Even teddy bears are listed as possible pieces of evidence -- either picked from the debris or offered by family members as mementos of their loved ones.

The catastrophe that befell us as a nation that day will come back 4 1/2 years later in condensed form with a ferocity and intensity that surely was lacking during the long and detailed 9/11 commission hearing a few years ago. Then, the goal was to elicit information. Now, the goal for prosecutors is to elicit rage. Rage at Al Qaeda, and its leader, and the actual hijackers, and of course at Moussaoui, the pathetic man left standing and holding the bag for all the rest.

It is hard to imagine, much less overstate, how viscerally emotive this testimony and this evidence is likely to be. Before 9/11, the worst crime on American soil was the Oklahoma City bombing, which killed 168 and wounded hundreds more on April 19, 1995. During the federal death penalty trial of Timothy McVeigh, in Denver in 1997, emotional testimony flowed through the courtroom. During one particularly poignant moment early in the trial, it seemed that only the judge and McVeigh were not overcome with emotion. Often during that trial, jurors, lawyers, journalists and even federal marshals all had tears in their eyes listening to the harrowing stories of death or narrow escape from the Alfred P. Murrah Federal Building.

When you deal with a trial about death on such a scale, it is easy -- indeed, it is inevitable -- to focus on the enormity of the crime rather than the defendant's role in it. In these big cases, the destruction to life and limb is so vast and so unfathomable that, like a vacuum, it sucks into its vortex any reasoned consideration of who the defendant is, what his life was about and why it would be fair or just for any reason to spare his life.

Sometimes, in these rare occurrences, it doesn't matter who did what or why. Sometimes the crime itself establishes for jurors the need for capital punishment. That formula doomed McVeigh, to be sure, and it is not likely to help Moussaoui either.

Now that they have made the legal link they needed, if barely, prosecutors will present to the Moussaoui jurors a litany of reasons -- "aggravating factors" is how the law describes them -- why he deserves to die even though he was sitting in a jail on immigration charges on 9/11. Jurors will be bombarded with sorrow, remorse, regret and anger. They will be flooded with images for all their senses of the dead and dying, of the rubble, of the fire and ash, of the remains of the day. Jurors in death penalty cases are asked to render a judgment as the "moral conscience" of their communities.

In this case, now that they have concluded that Moussaoui's actions caused death on 9/11, it is hard to imagine how they could not at this stage recommend a sentence of death for the man who told them to their faces in court that he is America's "sworn" enemy. The only chance for Moussaoui to escape that fate would be a stubborn, extralegal push by jurors to preclude him from the martyrdom he seeks.

But even if that happens, it won't be because jurors weren't bowled over by the government's presentation. By taking one important step Monday toward condemning Moussaoui, his sentencing jurors also took one giant leap toward condemning themselves to revisit in graphic, jarring and mournfully sad detail the morning of 9/11.

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