The cockpit recorder tape from the Sept. 11 jetliner that crashed in Pennsylvania will be played in public for the first time — to the Zacarias Moussaoui sentencing jury — the judge in the case ruled Wednesday.
U.S. District Judge Leonie Brinkema said the jury considering whether to execute Moussaoui could hear the recording from United Airlines Flight 93 and see a transcript of it.
This cockpit tape has been played privately for the families of Flight 93 victims, but it has never been played in public.
Prosecutors asked the judge to order the tape sealed and to keep the transcript from the general public after it is played in open court, but she made no immediate ruling on that.
Noting that the 4th U.S. Circuit Court of Appeals has ordered trial evidence made public, she said relatives of Flight 93 victims would have until next Tuesday to advise her whether they object to general release of the material.
She said if no family members object, she will release the material to the general public the day after it is submitted into evidence. No date was set for that.
The sentencing trial of the 37-year-old Frenchman will resume Thursday morning after the jury in the first phase unanimously found him eligible for the death penalty on counts of conspiracy to commit international terrorism, to commit air piracy and to use weapons of mass destruction. This second phase will examine aggravating and mitigating evidence about his crimes, and the jury will decide whether he will be executed or imprisoned for life for his role in the Sept. 11, 2001, attacks.
In an order describing Wednesday's closed hearing, Brinkema said the government's reason for wanting to keep the tape and transcript sealed from general release was "to protect the National Traffic Safety Board against premature public speculation regarding the cause of any airline crash so it may `conduct a full and fair investigation."' Brinkema said even prosecutors admitted in court that that reason "is not implicated in this sentencing proceeding."
Much of what happened aboard Flight 93, including an effort by passengers to retake the plane from Al Qaeda hijackers, is known because of the use of cell phones in flight by passengers and flight attendants. Earlier in the trial, prosecutor David Raskin transfixed the jury by reading an account of the last moments of the flight based on the cell phone calls by two flight attendants from the plane to ground controllers.
The transcripts of the flight attendants' calls were excerpted in the Sept. 11 Commission report. Also public are parts of the cell phone calls made by some passengers. A Hollywood movie re-enacting the flight is to be released later this month.
Discussing general public release of the tape and transcript, Brinkema wrote, "The court is also mindful that family members of the flight crew or passengers on Flight 93 may object to the voices of their loved ones being publicly revealed in this manner."
Prosecutors began calling relatives of the victims Wednesday afternoon to advise them of the judge's decision.
Even if no family member objects, the exact date of general public release remained uncertain. Prosecutors have not disclosed when they plan to present the material to the jury.
Thursday is the only trial day this week and it will be consumed in part with opening statements from both sides before any testimony is heard. The jury will return Monday next week to its Monday-Thursday schedule. Estimates of the length of phase 2 range from two weeks to two months.
The government will bring in testimony in an effort to prove that Moussaoui's victims suffered cruel physical abuse, that his acts resulted in "serious physical and emotional injuries, including maiming, disfigurement and permanent disability" for numerous survivors and injured or harmed not only the victims but also their families, friends and co-workers.
Prosecutors intend to identify for the jury by name and photograph each of 2,972 victims and to call witnesses to tell the stories of about 45 victims. This sample will include victims from each of the four hijacked jetliners, the World Trade Center and the Pentagon. And it will cover the diversity of race, religion, economic status and occupation of victims as well as the range of people affected, including spouses, parents, children, siblings and friends.
Prosecutors also intend to show the harm the attacks did to New York's economy and public employees and to the Pentagon.
To make a case for life in prison, the court-appointed defense team wants to call a doctor to testify that Moussaoui is schizophrenic and to call sociologists to describe his impoverished childhood in France and the racism he encountered in France and England because of his Moroccan ancestry. They have yet to outline all the mitigating factors they hope to show.
To obtain a death penalty, the prosecution must prove at least one of three aggravating factors beyond a reasonable doubt: Moussaoui knowingly created a grave risk of death to one or more innocent bystanders; he subjected victims to serious physical abuse in a heinous and cruel way or relished the killing, or he acted to cause death or terrorism after substantial planning or premeditation.
That plus any other damage they can prove beyond a reasonable doubt would have to outweigh any mitigating evidence submitted on Moussaoui's behalf.