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The Right To Be Wrong

Andrew Cohen analyzes key cases and rulings for and CBS News.

By winning the fight to represent himself during his capital murder trial -- by convincing his federal judge that he was competent enough to fire his seasoned, well-meaning, and devoted attorneys -- Zacarias Moussaoui has just dramatically reduced his already-slim chances of avoiding a conviction and death penalty for his alleged role in the September 11 terror conspiracy. He has figuratively bitten the hand that would have fed him with legal advice and guidance over the next few months leading up to and through his trial, now scheduled for September 29.

U.S. District Judge Leonie Brinkema called Moussaoui's request "unwise but rational" and she's precisely correct. You and I might want all the legal expertise and help we could get were the weight of the entire federal government bearing down on us in a life-or-death trial. But that doesn't mean that everyone has to approach the legal calculus in that fashion. Judge Brinkema's ruling Thursday confirms the precedent and the notion that Moussaoui has a right to be wrong about how he wants to handle his defense.

His lawyers said after the hearing that their soon-to-be-former client had just blown his chance for a "fair trial" and they may technically be correct. It's a fairly safe bet that Moussaoui, even with the help of "stand-by" counsel, will miss many of the legal nuances his initial team would have picked up on. Maybe there will be a missed objection to the introduction of prosecution evidence. Or a missed opportunity during cross-examination. Or maybe even a unwise choice during jury selection. Like them or not, good defense attorneys do all sorts of things, appreciated and not, that contribute to the defense of a suspect. To his detriment, and perhaps to his doom, Moussaoui has just precluded himself from many of those benefits.

This analysis presupposes a defendant who is interested in taking advantage of all the protections provided to capital defendants under the Constitution and the Bill of Rights. Most capital defendants are so interested; they get lawyers to fight for them in court and then they get new lawyers to file appellate briefs for years, all in an effort to make sure that every possible avenue of defense has been explored. But suppose the so-called "20th hijacker" doesn't want to play the game? Suppose he isn't interested in exploring all of the nuances of the rules of evidence or procedure? It's not all that impossible, is it? This is, after all, the same fellow who in April told Judge Brinkema that he prayed for the destruction of America. And if he is half the terrorist the feds say he is, why in the world wouldn't he want to use the stage of a federal trial to make whatever political hay he can make before they take him away?

Moussaoui's decision to press forward with his request to get rid of his attorneys strikes me as a sign that he is more interested in establishing some form of control over his destiny than he is in prevailing at trial or even sparing his own life. This isn't terrible unusual. Timothy McVeigh, who was executed one year and two days ago, also tried -- in vain in his case -- to wrest control away from his court-appointed counsel before he was convicted and sentenced to death for this role in the 1995 bombing of the Alfred P. Murrah federal building in Oklahoma City. Sometimes, it seems, the legal battle isn't as important to defendants in this position as the political battle or even the spiritual one.

The decision itself by Judge Brinkema clears away some underbrush in the case but at the same time generates the possibility for more trouble down the road. By declaring Moussaoui competent to proceed, the judge avoided the lengthy delay that would have ensued had she ordered Moussaoui examined for 90 days or even declared him incompetent -- the other two options following Thursday's hearing. That's the good news if you are still hoping for a September 29 start of the trial. The bad news is that the judge may have to delay the start of the trial anyway to give Moussaoui, or his new Muslim attorney if he ever gets one, to adequately prepare for what looks to be a fairly complex criminal case.

That's not all. Moussaoui's about-to-be-fired attorneys all had security clearance with the feds, meaning that they could review classified government material relating to the case in order to determine whether any of it might assist in their client's defense. But Moussaoui certainly doesn't have that clearance -- and he isn't likely to get it in our lifetime or his. And it is not a given that any new attorney Moussaoui comes up with will pass muster with federal officials when it comes to security clearance. I can almost hear the feds now arguing that any lawyer Moussaoui actually wants on his case must be linked to al Qaeda and thus ineligible to see super-sensitive material.

So if there is a problem with clearance, or even if a substantive legal problem crops up which warrants another detour, Judge Brinkema may be hard-pressed to stick to her late September trial date. Now that she's given Moussaoui the rope with which to hang himself, she has to be extra careful to provide him with as fair a trial as possible in the circumstances. That means bending over backward to ensure that Moussaoui comprehends the process and at least understands throughout the rest of the case that he has the option of asking his "stand-by" attorneys for help whenever he thinks it is necessary or appropriate.

It won't be easy for her. And it won't be easy for the defendant. Come to think of it, it won't be easy for prosecutors, either, who now have to deal with the prospect of a political and religious defense to their very dense, technical conspiracy case.

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