Family members of those killed Sept. 11, 2001, again captivated jurors yesterday at the death penalty trial of Zacarias Moussaoui. But this time, the bereaved testified for the terrorist.
It is rare for family members of murder victims to testify on behalf of the murderer, legal experts say. Almost always, families testify for the government.
Prosecutors had objected out of concern that some family members might speak against the death penalty for Moussaoui, but U.S. District Judge Leonie M. Brinkema allowed the testimony, sources close to the case said. They spoke on condition of anonymity because Brinkema’s ruling is not public. During the testimony, the prosecution team did not object or conduct any cross-examination.
There was no talk of punishment from the witness stand, no hint of whether family members think Moussaoui should be executed for his role in the terror attacks. Defense lawyers were prohibited from even asking the question, and they would not comment afterward. But the defense is hoping that jurors got an implicit message from yesterday’s testimony: that some victims think Moussaoui’s life should be spared.
Robin Theurkauf, who testified about the loss of her husband, Tom, in the collapse of the World Trade Center, certainly does. In an interview later, Theurkauf said she indeed took the stand because she is a fervent death-penalty opponent who believes that "no good can come from executing this man, for any reason. We as Americans should be big enough to recognize that vengeance is never justice."
Theurkauf, a divinity student who formerly lectured on political science at Yale University, said Moussaoui’s lawyers e-mailed her before the trial asking "if I needed anything." She responded by asking to testify for their client, even though, she said, he "clearly has no empathy and has been rejoicing in people’s horrible deaths."
There was limited emotion, as well as a few tears, as the family members took the stand and told of their suffering but also spoke of their hope, describing how they have tried to move beyond grief and rage and get on with their lives. Their testimony was in stark contrast to the several dozen Sept. 11 family members who had testified for the prosecution, often sobbing from the stand as they described lives destroyed by grief.
Other family members who testified yesterday declined to comment as they left the federal courthouse in Alexandria. But sources said the 10 to 12 relatives who will testify approached defense lawyers, some after hearing that the lawyers had reached out to the relatives.
Their decision was especially striking because of the nature of the defendant. Moussaoui pleaded guilty last year to conspiring with al-Qaeda; the federal jury is considering whether he should be executed. When he testified last week, he vowed to kill Americans wherever he could and said the Sept. 11 family members who testified for the government were "disgusting."
Taking the stand yesterday, Donald Bane, whose son Michael Andrew died in the World Trade Center collapse, spoke in calm and measured tones about how he has tried to channel the "mixture of rage, murderous rage, and also deep feelings of sadness" he felt when he saw the hijacked plane crash into the tower on television.
"I had a choice of staying with these feelings or sort of nurturing them," Bane said. "I tried to think of ways I could learn more. I felt the need for bridges of understanding with people who could do this kind of thing." Bane eventually organized a Muslim-Christian dialogue in Delaware, where he now lives.
Orlando Rodriguez, who teaches criminology and sociology in New York, displayed a dry wit as he spoke of the loss of his son, Greg, an associate vice president at Cantor Fitzgerald, the brokerage firm on the 104th floor of the trade center that lost hundreds of employees.
As a photo of Rodriguez and his son hiking flashed on television monitors throughout the courtroom, defense lawyer Alan Yamamoto asked: "What was that experience like for the two of you?"
"It was fine for him. He was less than 30 years old," Rodriguez said to laughter, one of numerous times that spectators and jurors smiled.
The testimony culminated an attempt by Moussaoui’s lawyers to reach out to victims and relatives. Although their efforts paled in comparison with what prosecutors did — compiling a database of more than 8,000 names in the largest victim impact program in U.S. history — several lawyers contacted family members on behalf of the defense.
It is something defense lawyers in capital cases have been doing with more frequency in the years since the U.S. Supreme Court allowed victim impact testimony in 1991. The court had ruled previously that such testimony was prejudicial.
Richard Burr, who defended Oklahoma City bomber Timothy McVeigh, said McVeigh’s defense sent letters to bombing victims but did not seek their testimony before McVeigh was executed in 2001.
"Most of us have the ability to recover from the most grievous of losses. We have the ability to heal," Burr said. "That’s the message Moussaoui’s defense was trying to send."
Because the Supreme Court decision said family members cannot be asked what the punishment should be, Moussaoui’s lawyers were engaging in a delicate legal ballet yesterday, said Barry Boss, a Washington lawyer with experience in capital cases. He said the defense strategy made sense, especially given the damage Moussaoui has done to his case with his testimony.
But it was also "fraught with risk," Boss said, because jurors "tend to view the defense as anti-victim. . . . Anytime you’re calling victims, you have to walk a very fine line. These people have already suffered an enormous tragedy."
Defense lawyers treated their witnesses much as prosecutors had done when more than 35 family members and Sept. 11 survivors testified for the government. The defense restricted questions to how loved ones had lived their lives, how they died and what impact the deaths had on the family members.
Although the six relatives who took the stand yesterday did not show the abject grief displayed by the prosecution witnesses, Anthony Aversano did choke up when describing how he decided to reconcile with his estranged father on Sept. 11 — of 1999. His father, who was not named, died in the trade center attack exactly two years later. "I got my dad back," he said through tears.
Since the attacks, Aversano said, he has decided not to give in to the rage he first felt. "I saw that if I had let myself succumb to fear and anger and vengeance, then more than the planes would have been hijacked that day," he said. ". . . The life I want to live is a life with compassion for other people."