Moussaoui Came Within One Vote of Death

Zacarias Moussaoui would be under death sentence were it not for one juror, who refused to reveal himself to his fellow jurors or present any arguments to sway them.

Only one juror stood between the death penalty and Zacarias Moussaoui and that juror frustrated his colleagues because he never explained his vote, according to the foreman of the jury that sentenced the al-Qaeda operative to life in prison last week. The foreman, a Northern Virginia math teacher, said in an interview that the panel voted 11 to 1, 10 to 2 and 10 to 2 in favor of the death penalty on three terrorism charges for which Moussaoui was eligible for execution. A unanimous vote on any one of them would have resulted in a death sentence.

The foreman said deliberations reached a critical point on the third day, when the process nearly broke down. Frustrations built because of the repeated 11 to 1 votes on one charge without any dissenting arguments during discussions. All the ballots were anonymous, and the other jurors were relying on the discussions to identify the holdout.


She said the jurors did not want any notes sent to the judge, so they decided that the whole group would raise anti-death penalty issues because that way the lone dissenter would not feel isolated or “ganged up on.” Deliberations continued, but the foreman said the lone dissenter still did not raise any issues. Three days later, jurors delivered their decision to Brinkema.

I don’t know what the usual procedure is in the federal courts but it strikes me as quite unusual that jury votes would be done by secret ballot. It would seem a fundamental part of being a juror to voice one’s vote and rationale in deliberation with one’s fellows.

Update: Charles Krauthammer has an eloquent piece on the nature of the death penalty and explaining why he would have voted to spare Moussaoui’s life. He concludes–independent of this latest revelation,

The Moussaoui verdict came out right, but the process was atrocious. The jury’s reasons for mitigation were risible. And the entire process was farcical, a four-and-a-half-year charade manipulated by a self-declared terrorist gratuitously given a world platform by those he was working to destroy. We need no more lessons in the obvious: Civilian court — with civilian procedures, civilian juries and civilian sensibilities — is not the place for those who make war upon us.

Of course, I would amend “the jury’s” to “the one or two jurors who voted against death,” since ten of the jurors voted for death on all three counts.

FILED UNDER: Law and the Courts, Terrorism, , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Bithead says:


    Doctor Krauthammer is also noted as having said on Fox the day of the verdict, that he really didn’t have a dog in the hunt either way, on this particular death penalty case.

    His point about the process not belonging in a civilian court is valid, however, an in my opinion the biggest issue the Moussaoui case deals with. That went EXACTLY the wrong way.

  2. Tano says:

    Personally, I dont understand Krauthammers conclusion at all. I dont find it obvious that this experience means that civilian courts are not the appropriate venue. Quite the contrary. I think we came out of this process looking great.

    You had a deeply repulsive figure, plus a government that was, lets be honest here, willing to go to extraordinary lengths for the sole purpose of exectuting someone (rather than simply locking them up and throwing away the key) – and through this all we gave the world an example of how a fair system can end up rendering a verdict that the government didn’t want.

    Even the monster himself, at the end of it all, concluded “hey, I guess its true that even I can get a fair trial in America – can I maybe take that guilty plea back”?

    I think that if we look at the entire process, and see all the steps we take to ensure fairness, we can be very proud of it all – whether we agree with the verdict or not. I think we should publicize things like this, not hide them by carrying out some different process in a military tribunal behind closed doors.

    For in the end, what did the monster accomplish that we should take steps to insure doesnt happen again? He made a complete fool of himself.

  3. When I was on a jury (which was for a state civil case, so things may be different for a federal criminal case), there was no rule for or against secret ballots. As a jury, we just all had a natural assumption our votes would be secret.

    Given all the problems they had trying to get the lone hold out to express their reason for the vote, you would think that it would be required to do secret ballots or someone would suggest that they do an open vote.