Judicial Brinkemanship?

Let's recap.

Brinkema very nearly ruled the death penalty inapplicable because of some forbidden coaching of peripheral witnesses in the case.

She almost certainly wanted to toss the death penalty as a possible punishment; but she knew she'd face hell for that decision.

She figured the prosecution, which was struggling throughout the case, couldn't sell the jury on the death penalty anyhow.

Then something amazing happened. Moussaoui opened his mouth and testified -- bragged, really -- about his role in the attacks, his foreknowlege of them, his inclusion in the planning, his delight that they were successful.

Disaster for Brinkema, who was hoping the death penalty would tank without her fingerprints on it.

No problem. Just say you don't believe Moussaoui and rule against the prosecution:

The judge presiding over Moussaoui’s sentencing told trial lawyers that she doesn’t believe Moussaoui’s claims on the witness stand that he knew advance details of the Sept. 11 plot.

“I still think that Moussaoui was not accurate in a lot of what he said about how much he knew about what was going to happen with which particular buildings and when,� U.S. District Judge Leonie Brinkema said during a closed hearing on April 21 outside the jury’s presence. Transcripts of the hearing were released Tuesday.

Moussaoui’s bombshell testimony on March 27, in which he took the stand against the advice of his court-appointed lawyers and claimed a direct role in the 9/11 plot after years of denial, revived a moribund prosecution case. Defense attorneys have argued that Moussaoui lied on the stand either to inflate his role in history or antagonize the jury into making him a martyr through execution.

Specifically, Moussaoui claimed that he and would-be shoe bomber Richard Reid were to have flown a fifth plane on 9/11 into the White House, and that he also knew the World Trade Center towers were targeted.

Brinkema made her comment during a debate over jury instructions. She defended a technical ruling in favor of the defense as a way of “evening the playing field� in response to her concerns about Moussaoui’s testimony.

Even though jurors have no way of knowing about Brinkema’s editorial comment presuming they obey rules against following news coverage, prosecutor David Novak objected to her remark.

“With all due respect, that’s the jury’s decision to decide whether they found him to be credible or not,� Novak told Brinkema.

I'd like to know what that "technical point" the prosecutors lost was.

Strange, but the jury came to the very odd decision that Moussaoui was responsible for causing damage to the city, but not for causing any deaths. How can this be? Of course, it can't be, rationally.

Don't Speculate, Especially If You Can Just Read Update: The questionnaire for deciding Moussaoui's fate is not overly complicated. How the jury could have found he cause disfigurment, damage, and emotional distress but not actual deaths is beyond me, but it's not Brinkema's fault.

It's the fault of some asshole jurist who knew she'd have to vote yes on the death penalty if she answered that in the affirmative. So she just pretended the answer was no.

Clarification: I mean Brinkema did not seem to make the jury instructions for imposing the death penalty unduly difficult to follow or meet in the affirmative.

I don't know what her specific ruling was. She might have severely limited the jury's ability to consider Moussaoui's amazing courtroom admission, by ruling something along the lines of "You may consider his testimony to the extent it may show his remorse or lack of it, but you may not consider it as far as responsibility for the deaths caused in the attack. The prosecution must prove that burden with its own evidence."

I don't know how she could justify such a ruling. And of course I don't know what the ruling was-- when will the transcript be out? Just saying, it's possible she really put the big hurt on the prosecution.

Or maybe she didn't. I don't know. I don't trust an MSM reporter as regards "technical rulings." Most rulings in law are "technical" in nature. It doesn't mean they're not important, which seems to be the intended suggestion here.

Her reference to "evening" things -- mitigating the damage Moussaoui caused himself in his confession of full guilt, through her terrorist-friendly ruling -- makes me think it's something along the lines of "You can consider his testimony for X but not for Y," where Y is the Big Magilla.

Big Old Roundup At Allah's Bit on Hot Air: Reactions all over, and Allah has great fun with the "at least we didn't martyr him" brigades.

He has the jury questionnaire on mitigating circumstances. No jurors agreed that his martyrdom was relevant, and only nine jurors agreed he'd had a bad childhood and that his dad had a temper -- and those were the mitigating factors that garnered the most support from the jury.

I still don't get how this moronic jury found Moussaoui caused damage to NYC on 9/11 but no actual deaths.

But juries make those sorts of inconsistent findings all the time.

Which just proves they're stupid.

Also, check out Giuliani's appearance on Hardball. He tries to put a happy face on the verdict, being the diplomatic politician, claiming he's very happy at least we live in a country that is courageous enough to be so stupid as to permit murderous vermin like Moussaoui stay alive. I guess calling Americans gutless pussified nancyboys wouldn't help his chances in 2008.

I really enjoyed Matthews spinning that rationality, rather than vengeance and emotionalism, had carried the day here, the same as it did after the, um, Boston Massacre. Not sure how Chris came up with that historical analogy, but he sure was eager to give the jurors their Liberal Media Cookie for Good Behavior.

posted by Ace at 06:16 PM

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