ALEXANDRIA, Va. – Prosecutors showed the most gruesome and heart-rending photos of Sept. 11 again on Monday and told jurors that only Zacarias Moussaoui's death could give the victims justice. The defense asked his jury to spurn retribution and not let a delusional and inept terrorist bait them into making him a martyr.
With those final arguments, the life of the 37-year-old Frenchman was placed in the hands of the same nine men and three women who early this month found him responsible for at least one death on 9/11 even though he was in jail at the time.
Now they must weigh the suffering and the glee the confessed Al Qaeda conspirator took in it on the witness stand against his role, his mental health and background to decide whether he deserves the death penalty or life in prison without possibility of release.
The jurors deliberated three hours and went home for the day. They will resume Tuesday morning.
Prosecutor David Novak showed photos of a charred body in a Pentagon office, of body parts at the base of the World Trade Center, and of young children who lost a parent.
"No one can give them justice but you," Novak said. "You are the voice of this nation."
He told jurors a death penalty would say: "We are the United States of America, and we are not going to put up with a bunch of thugs who invoke God's name to kill nearly 3,000 Americans."
Displaying a photo of the youngest 9/11 victim — 2 1/2-year-old Christine Hansen holding an American flag — who died on her way to Disneyland, Novak recalled Moussaoui's "utter lack of remorse" when he took the witness stand and asked: "How can any human being rejoice in her death?"
Moussaoui "is nothing but a mass murderer," Novak said. "This defendant is pure evil."
With such arguments, defense attorney Gerald Zerkin said, "the government opts for retribution." But "this is about history," he said. "It is about how our justice system responded to the worst terrorist attack on our soil."
He said even the Nuremberg trials of Nazis after World War II handed out only 11 death sentences for "the worst atrocities in the history of man" and paved the way for reconciliation.
Moussaoui is a "a veritable caricature of an Al Qaeda terrorist," "the operative who couldn't shoot straight" and "the only Al Qaeda operative inept enough to be captured before 9/11," Zerkin said.
"He is offered as a sacrificial lamb" while no charges are brought against 9/11 mastermind Khalid Shaikh Mohammed, coordinator Ramzi Binalshihb and other captured Al Qaeda leaders, Zerkin said.
He said the government "has held out the prospect of Moussaoui's execution as the cure" for the pain of the victims. But because their pain is so severe, "his death cannot and will not make them better."
Zerkin recalled other relatives of victims who testified on Moussaoui's behalf that they began to recover when they found ways to do something positive.
Moussaoui's testimony about how he relished the pain of the victims "is proof that he wants you to sentence him to death," Zerkin said. "He is baiting you into it. He came to America to die in jihad and you are his last chance."
Instead, Zerkin said, the jury can "confine him to a miserable existence until he dies and give him not the death of a jihadist he wants, but the long slow death of a common criminal."
Once Judge Leonie Brinkema had sent the jury to deliberate, rejected another defense motion to throw out the death penalty and recessed the court, Moussaoui, who calls the trial a charade and a circus, raised his hands above his head and left court smiling and applauding.
He had been defiant when leaving for the day's earlier breaks, calling out: "Never get me, America," "Our children will carry on the fight," and "There's more than one way to skin the American pigs."
This is the fourth death penalty case in which Zerkin and Novak have faced off; Zerkin's clients in the three earlier ones all got life sentences. Some rancor surfaced as each used their closings to criticize the other by name for an argument or line of questioning during the trial.
Both may have misstepped somewhat in their closings, and on the same issue: Moussaoui's sanity. Zerkin briefly lost track of his outline and had to go back, almost as an afterthought, to the importance of testimony from defense psychiatrists that Moussaoui was a delusional schizophrenic. Mental illness "affects your judgment," he said.
Later, Novak may have forgotten that one female juror is a mental health researcher when he said that testimony "is a bunch of psycho-hogwash." He ridiculed the diagnosis as a "magical schizophrenia" that Moussaoui could turn on or off and that "didn't appear in front of you all."
Moussaoui himself nodded vigorously up and down when Ze Muslim immigrants do not become Al Qaeda terrorists, Raskin said, pointing out that Moussaoui's own brother, Abd Samad, is "a successful engineer and teacher."
Zerkin responded that Abd Samad had not gone to London, found himself in homeless shelters and been recruited by the radical Islamic fundamentalists who thrived there in the 1990s.
Raskin told the jurors: "Your decision ... is not a close call." Zerkin told them their ruling would be "the legacy for our children." The jurors left to make their way through a verdict form that runs 42 pages and requires them to disclose what factors influenced their decision.