Deliberations went into the sixth day Tuesday in the Zacarias Moussaoui sentencing trial, with lawyers and jury consultants saying they believe the chance that of a death sentence diminishes with each passing day.
The jury concluded a fifth day of deliberations Monday without deciding whether to execute Moussaoui — the only person in this country charged in the Sept. 11, 2001, attacks — or sentence him to life in prison.
So far, in more than 28 hours of deliberations spread over five days, the jurors have given few clues into their decision-making process. They have asked only one question — a request for a dictionary that was denied by the judge.
One possible indication that jurors are settling in for a long haul came after deliberations concluded Monday: Jurors set a work schedule for themselves for the next week, through May 8. They typically had been setting the schedule only a day in advance.
Experts warn against reading too much into the length of deliberations, but generally agree that a prolonged process is a sign that at least a few jurors are reluctant to vote for a death sentence.
Frank Salvato, a defense lawyer in Alexandria who has won acquittals in death-penalty trials at the federal courthouse where Moussaoui is on trial, said the jurors probably have spent much of their time making sense of the 42-page verdict form they will be required to fill out. It asks them to make findings on dozens of alleged aggravating and mitigating factors before reaching their ultimate conclusion.
Still, he said, "There has to be some type of split or dissension" within the jury.
If by Wednesday the jury still has not returned a verdict, Salvato said, it would be a strong signal that reaching an unanimous death sentence will be difficult.
In this phase of the trial, a lack of unanimity favors the defense, because jurors are not required to reach an unanimous decision. If they disagree on the punishment, Moussaoui will automatically be sentenced to life in prison.
The jurors have been told what occurs if they are not unanimous, and that also favors the defense because a lone juror can hold out for life and spoil any chance of a death sentence, said Arthur Patterson, a Florida-based jury consultant with trial consulting firm DecisionQuest Inc.
"It gives more power to the individual," Patterson said. "It's more like 12 individual juries."
Patterson said he suspects the length of deliberations indicates some type of split, rather than just a meticulous jury.
Jeffrey Frederick, a jury consultant and director of jury research for National Legal Research Group in Charlottesville, also cautioned against paying too much attention to the tea leaves, though he agreed that longer deliberations tend to favor the defense.
"They can still deliberate a long time and come back with a death penalty," said Frederick, adding that jurors want to be methodical in a trial of this importance.
Patterson said that, if pushed to guess, the jurors are wrestling with the defense argument that executing Moussaoui will make him a martyr. During the trial, Moussaoui twice defied his court-appointed lawyers to testify on his own behalf and twice appeared to do himself more harm than good. He first claimed a direct role in the Sept. 11 plot after years of denials, then took the stand again to mock the gut-wrenching testimony of Sept. 11 victims and their families.
Trial testimony also indicated that Moussaoui had offered in the days leading up to trial to testify for prosecutors and told them that he didn't want to spend the rest of his life in prison.
"The jury has to decide not only whether the government has proved its case but also has to explore the implications of its decision," Patterson said. "The typical citizen juror just isn't equipped to evaluate concepts like martyrdom."
This jury previously found Moussaoui eligible for execution after more than 16 hours of deliberations in late March and early April. Although he was in jail on immigration violations on Sept. 11, the jury ruled that lies he told federal agents the month before the attacks kept them from identifying and stopping some of the hijackers.