More Dopery From The Washington Post: "The Debate" Column Wonders Why Moussaoui Can Be Put To Death For Merely Exercising His Fifth Amendment Rights

It's cute when non-lawyers try to play Mattlock.

Moussaoui to FBI: I Plead the Fifth

Debater JUDGITO wonders how the government could have reasonably expected Moussaoui to tell the FBI everything he knew about Al Qaeda's plans. "Doesn't the Fifth Amendment right against self-incrimination apply in this case and, if not, why not?"

An intriguing question.

The defense has made this point, arguing that Moussaoui was under no legal obligation to confess anything.

Mike at LeftFielder.org agrees. He can't see how increasing "Moussaoui’s legal liability because he refused to confess his crimes and fully cooperate with the FBI" would not be a violation of the Fifth Amendment. (The Old New Englander notes that the government attorney caught improperly coaching witnesses in the Moussaoui case has invoked her constitutional right not to incriminate herself.)

The relevant clause of the Fifth Amendment reads: "no person ... shall be compelled in any criminal case to be a witness against himself...."

Okay, this is a somewhat technical bit of the law, so I get that non-lawyers don't get it. But I don't understand how non-lawyers can spout off so confidently about matters of which they know absolutely nothing at all.

I can't swear with 100% certainty that my explanation is the proper one, because I haven't been following the Moussaoui case. However, I do know the crime of conspiracy well enough, and I'm reasonably confident the explanation I'm going to give you is correct.

First, the definition of conspiracy. It may surprise you that the crime of conspiracy is very simple and short: you are guilty of the crime of conspiracy when you agree with one or more persons that a specified crime be committed, with the intent that that crime should be committed.

And that's it. You don't have to actually go through with the crime. You don't have to be the one it is agreed will commit the crime. You can all go home and never discuss it again and take absolutely no action to commit the crime, and yet you're all still guilty of conspiracy.

Because the crime of conspiracy is merely the agreement among two or more people that a crime will be committed. Just the agreement. Not the crime.

There is slightly more to it than that. Most conspiracy statutes or caselaw requires some specific action be taken in "furtherance of the conspriacy," but that's more of an evidentiary safeguard. That rule is there to separate the people who just spout off without any real intent of committing a crime -- say, you and me, talking over beers, agreeing that "someone should break into Barbara Boxer's Senate office and fill it with dog crap," without ever really intending to do anything of the sort -- from those who really are agreeing that one or more of them should commit a crime, with the actual intent to do so.

So, if we agree we should fill Boxer's office with dogcrap but none of us actually goes out and buys gloves (to keep from leaving fingerprints) or begins going to kennels to ask how much dog-poop they could provide for $300, we can't be charged with conspiracy.

If we do take those steps, however, we can be so charged, as those steps demonstrate a real intent to commit the crime. But note: We don't actually have to commit the actual crime of buglary and aggravated dogcrap depositing; we just have to agree to do it, and take a prepartory step towards that goal. And that prepataory step does not have to be illegal in and of itself.

So: If you and a friend agree that one of you should go have sex with a horse (in one of the few states where that's actually a crime), and you buy some animal tranquilizers and carrot-flavored condoms, you're guilty of conspiracy to commit unlawful sexual assault on a horse, even if neither of you then does a damn thing more about it. No horse gets sexually assaulted, but it doesn't matter: the crime in conspiracy is the agreement to commit the crime, not performing the actual crime itself.

If you commit the actual crime, you can just be charged with the crime. Plus you can be charged with conspiracy on top of that, because conspiracy is its own crime, not a "lesser included offense" of another crime.

I assume that federal law defines conspiracy to commit terrorism as a death-penalty eligible offense. I can't imagine it's not.

So, moving on:

Zacharias Moussaoui was found guilty of conspiring (merely agreeing to) commit terrorism, thus becoming eligible for the death penalty. While he didn't actually commit terrorism, and seems to have dropped out of the scheme at some point, he nevertheless took the required acts in furtherance of the conspiracy (taking flight lessons, collecting aviation maps, etc.) and thus is guilty of conspiracy to commit terrorism and can be put to death just for that.

Now, here's the part about "not revealing this plan to the authorities."

Because conspiracy is a crime merely of intent and simple verbal (or written) aggrement between parties to commit a crime, it has a special, not-in-any-other-law safety hosta built into it. Someone can beat a conspiracy rap by proving that he abandoned the conspiracy.

But note that even if you take no further actions to further the execution of the actual plot after agreeing to commit a crime (and intending the crime be committed, and taking acts in furtherance of the conspiracy), you are still, after all, guilty of committing the crime of conspiracy in the first place. So you just can't commit the crime of conspiracy and then simply not involve yourself in the actual crime-conspired-to-perpetrate and say "But I'm innocent." You're not innocent. You may be innocent of actually committing the crime you conspired to commit, but you already are guilty of conspiracy to commit that crime.

However, if you can prove you truly abandoned the conspiracy, you can effectively call a mulligan on your original conspiracy and no longer be guilty of it.

But abandonment is not simply sitting idly by while your fellow conspirators continue to plot and plan and evenetually execute the crime you previously conspired to. Abandonment requires you take active steps to thwart the crime before it is actually perpetrated.

Usually this means you have to rat out your co-conspirators to the police. You don't necessarily have to walk into the police station and confess your guilt, but you do have to, say, at least write an anonymous letter to the authorities that "On April 28th Joe and Steve will break into Barbara Boxer's Senate office and fill it with stinky hound-mounds."

The rule is designed to help combat crime, by allowing those already guilty of conspiracy to help prevent the crime by incentivizing them to come forward.

But you have to come forward. Again, it is not enough to simply take no further action. You're already guilty of conspiracy once you agree to the crime and take a single step in furtherance of it; "abandonment" means you take active steps to undo what you already have done.

So yes; As a general rule, you do not have any duty to report someone else's crime. You cannot, generally, be arrested simply because you know of a crime, or a crime to be committed, and keep silent. (You don't have the right, on the other hand, to lie to LEO's when they ask you questions; that's obstruction of justice. But that won't get you the death penalty.)

Further, you do have the fifth amendment right to not incriminate yourself.

However, if you want to escape a conspiracy rap of which you are demonstrably guilty, you must abandon the conspiracy by taking active steps to stop the coming crime from happening. Or else you remain guilty of conspiracy. And in this case -- as it concerns terrorism -- the death penalty is on the table.

Moussaoui's lawyers' defense, I imagine, is that he did "abandon" the conspiracy, simply by not taking part in any further actions, or telling the other Al Qaeda plotters he no longer wanted to fly a plane. But that is simply not what the law requires for abandonment. For abandonment, he was required to go to the police and tell them of the plot, or, barring that, take it upon himself to prevent the plotters from hijacking the plane.

Obviously, he didn't.

In fact, when directly asked questions about Arabs taking flight lessons, etc., he lied about it.

So he is not actually being put to death (as I hope he will be) for "not confessing to the police."

He is being put to death for the death-penalty-eligible crime of conspiracy to commit terrorism, and failing to establish the only defense available to him, abandoment of conspiracy. He's eligible to the death penalty due to the crime itself; his defense is that he abandoned the conspiracy, but the prosecution is proving he did not abandon the conspiracy according to the law because he never took a single active step to thwart it.

Anyway, a long explanation, but that is what's going on here, I'm sure. It's not that he's being charged with keeping silent, it's that he's offering a defense which requires he actually tell the cops about the crime in advance, and as he didn't do that, the defense is inapplicable.

Or, putting it another way: Prosecutors, by proving he lied or kept silent, are not establishing an element of a crime. Rather, they're disproving a necessary element of his only conceivable defense.

Nits: I said that you essentially had to go to the cops to abandon a conspiracy. That's not quite true; I said it for simplicity.

You can also claim you abandoned a conspiracy, say, by refusing to provide the high-power plasma torch to commit a bank-robbery you've already agreed you should commit, assuming your co-conspirators can't get one themselves. By refusing such aid necessary to carry the crime off, your defense lawyer could argue, probably successfully, that you took the necessary steps to thwart the crime.

Assuming, of course, they just don't go out and get their own plasma torch, and go on to commit the crime without your assistance. I don't know in that case if you could prove abandonment; certainly your lawyer would have a more difficult time.

Or you could say to your co-conspirators, "I think this is wrong, and if you actually go ahead with this, I will rat you out the cops." That may or may not actually stop the crime, but certainly it's a geunuine effort to keep the crime from going forward.

But co-conspirators rarely do anything like this, so the "abandoment" defense is more theoretical than real.

Other nits are bar-exam classics I forget the answers to. Like, if you agree to commit a crime with someone, but he's just pulling your leg and has, himself, no intent that the crime be committed, can you still be charged with conspiracy, because you had the real agreement and intent? Can there be a conspiracy of one in that case? Can't remember; obviously, that's moot as regards Moussaoui.

As Moussaoui can produce no emails in which he pleaded with his Al Qaeda confederates to give up the plan, or denied them any necessary aid to commit the ghastly mass-murder, or even told the truth when directly questioned to by cops, he never abandoned the conspiracy, and thus is guilty of it, and thus, God willing, will be exterminated like the cockroach he is.

posted by Ace at 05:21 PM

| Access Comments