ALEXANDRIA, Va. – Al Qaeda conspirator Zaracias Moussaoui's defense complained bitterly Thursday that the pool of potential jurors for his sentencing was being stacked with people connected to Sept. 11 victims. Three would-be jurors were subsequently rejected over government protests.
In the sharpest exchanges during six days of jury questioning, defense attorney Gerald Zerkin clashed with prosecutors David Novak and David Raskin over who is too close to the Sept. 11 case or its victims to serve.
U.S. District Judge Leonie Brinkema managed to qualify seven more potential jurors Wednesday morning, bringing the total to 74. She is seeking a pool of 85 which will be reduced March 6 to 12 jurors and six alternates who will decide whether Moussaoui is executed or imprisoned for life.
On Wednesday over defense objections, Brinkema qualified a juror who had attended a funeral of man killed in the World Trade Center on 9/11. Thursday morning, none was qualified over defense objections. Nine would-be jurors were sent home, including the three that the prosecutors wanted to keep.
Overall now, 14 have been put in the jury pool over defense protests and six despite government objections.
When it appeared Brinkema might qualify a man still in contact with a fellow church member who was burned over 80 percent of his body in Al Qaeda's attack on the Pentagon, Zerkin exploded:
"The jury panel is being stacked with people who have connections to people injured" or killed on Sept. 11, 2001. "It's a source of bias that will infect the jury because of the sheer number of them."
Before Brinkema could advise him again to use one of his 30 peremptory — or unexplained — strikes to remove the man on March 6, Zerkin added, "There are only so many peremptory challenges and we have other issues to consider" like attitudes toward the death penalty.
Raskin argued that although the man admitted being affected by the injury he didn't hesitate to say it wouldn't affect his judgment. But Brinkema decided against him on grounds that such burns were a long-term injury and the two were still in contact.
Zerkin also got Brinkema to reject a man who attended the funeral of a man killed at the World Trade Center because he was the father of a college roomate of the man's wife.
Brinkema rejected as too close to 9/11 a man whose sister's best friend's son was killed there.
Novak objected: "Now it's a sister's best friend's son?" Novak argued that lots of people suffered 9/11 losses and couldn't all be excluded.
Brinkema responded that the man called the loss "devastating" and said it affected his whole family because they watched the boy grow up.
In a separate development, Defense attorney Edward MacMahon filed papers objecting to Rep. Curt Weldon's bid to quash a defense subpoena for testimony about his knowledge of a military intelligence project called Able Danger. The Pennsylvania Republican has said and written in a book that he saw a chart the unit developed in 1999 that identified some of the 9/11 hijackers as Al Qaeda threats.
Weldon claimed immunity from testifying under a constitutional clause that protects members of Congress from being questioned about their work for Congress. MacMahon said Weldon waived any privilege by discussing the matter on television and "in a book the Congressman is selling for $27.95."
"It is difficult for the defense to fathom why the Congressman would be eager to discuss these matters on Oprah, yet he would refuse to swear, in a capital case, that the same information is actually true," MacMahon wrote.
Moussaoui remained quiet for the sixth day, but told Brinkema when she asked whether his wireless earphones weren't working well during bench conferences because of the court's "white noise" machine designed to keep the audience from hearing. On leaving, he muttered his standard curse on his court-appointed lawyers and America and added: "God save Usama bin Laden and Al Qaeda."
Moussaoui, a 37-year-old Frenchman of Moroccan descent, pleaded guilty in April to conspiring with Al Qaeda to fly planes into U.S. buildings. But he denies any involvement in the Sept. 11 attacks and says he was training to fly a plane into the White House as part of a possible future attack.