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Jury Reaches Verdict in Phase One of Moussaoui Death Penalty Trial; Interview With Tennessee Governor Phil Bredesen

Aired April 03, 2006 - 15:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

TONY HARRIS, CNN CORRESPONDENT: I just need to break in for a moment, and -- and let everyone know that we're just getting word in to CNN that we have a verdict in the Zacarias Moussaoui trial.
And we understand that we will hear that verdict inside the next hour. And stay with us here at CNN, because I understand -- and, yes, it is true -- that we have a verdict in the Zacarias Moussaoui trial.

As you know, this has been quite a contentious trial, the Moussaoui trial. He was arrested, as you know, the month before 9/11, and on an immigration question. There were questions about his immigration status.

He was interviewed by the FBI. And he lied to the FBI -- the FBI saying that there was information that he knew about 9/11, that he was not -- the plot of 9/11 -- that he wasn't forthcoming in giving him the information -- giving the FBI the information that he knew about the plotting of 9/11, and, if he had, he would have the -- the FBI would have been able to take that information and, quite possibly, prevent the loss of life on 9/11.

The jury in this case has a couple of things it's working with. The jury must decide whether Moussaoui can be held responsible for a single 9/11 death because of what he did not do, because of what he didn't tell authorities.

Our justice correspondent, Kelli Arena, is standing by.

And, Kelli, I think I -- I -- I have that right. The jury has to decide if Zacarias Moussaoui can be held responsible for a single 9/11 death. If the jury comes back and says yes to that, then he becomes death penalty eligible. Is that it?

KELLI ARENA, CNN JUSTICE CORRESPONDENT: That's correct, Tony.

As you know, this is the first stage of -- of what is called a bifurcated trial. It basically means there's two phases to this. If -- if they decide that he is death penalty eligible, then they will start phase two, during which they will have to decide that -- the same jury will have to decide whether or not he is to be sentenced to death or to life in prison. Those are the only two options that they had.

This jury has been deliberating since late Wednesday. We sort of had an indication. They didn't take their morning break this morning, before lunch. And we thought maybe they had been gaining some momentum and didn't want to, you know, break and -- and resolve some issues. They got back from lunch at 1:30. They have been deliberating for the past hour-and-a-half.

So, we were told by the court that we would get an hour's notice between when the jury -- when -- when the -- they reached a -- a verdict and then when they would announce it.

So, we will know, in an hour from now, what that decision was. So, I will be heading into the courthouse, Tony, now, to figure it all out.

HARRIS: OK.

And, Kelli, how will this process actually play out? Will there be an officer of the court who will actually come out and read the verdict?

ARENA: Yes.

I mean, it will be like -- like, you know, any regular trial. They will come out. They will let the judge know what that verdict was. I'm assuming Moussaoui will be there to hear that. He has been there every single time the jury has been in the courtroom. He has been there flanked by marshals, let her know.

There may or may not be a -- you know, a polling of the jury. We will see. But it will -- it will be a very standard procedure, even though this is just the first phase of the trial.

And, as you know, I mean, this -- this was the phase where we didn't -- we didn't hear from any victims. We just heard from experts, aviation experts, you know, government experts, basically trying to prove that, A, Moussaoui -- Moussaoui had definitely -- because he had lied to investigators, had caused deaths on September 11.

I actually have repaired -- prepared a report for you, Tony. Let's listen to that. It will tell you the whole story.

(BEGIN VIDEOTAPE)

ARENA (voice-over): In this phase of the trial, the jury considered one basic question: Is Zacarias Moussaoui responsible for the death of at least one person in the September 11 attacks?

The government argued, he is, because, by lying to investigators in August of 2001 about his al Qaeda ties, he allowed the 9/11 plot to go forward.

UNIDENTIFIED MALE: The prosecution case is -- is novel. It's a different theory than the government has tried in any other case.

ARENA: The defense called the prosecution's argument flimsy, telling jurors that, even if Moussaoui had told the truth, government bureaucracy and incompetence would have gotten in the way of stopping the attacks.

So far, the trial has been anything but predictable -- the first big surprise, that Carla Martin, a government lawyer, sent transcripts of court testimony to aviation experts who were scheduled to testify, in direct violation of the judge's order.

In response, the judge banned all aviation witnesses from testifying, but, later, allowed prosecutors to call an alternative witness who had no contact with Martin.

UNIDENTIFIED MALE: The evidence they put in, while helpful, is imperfect. It's not everything they would have had, had Ms. Martin not tainted a number of documents and two very key witnesses.

ARENA: The second shocker: Moussaoui himself took stand, against the advice of his attorneys, and severely undercut his own defense.

Moussaoui testified, he not only knew about the 9/11 plot, but was a part of it. He said he was supposed to pilot a fifth plane into the White House with the so-called shoe bomber, Richard Reid.

UNIDENTIFIED MALE: It's going to be a big challenge for the defense to lessen the effect of Moussaoui's own testimony. In any case in which a defendant testifies, whether it's a defense penalty case or not, the defendant's testimony then becomes the most important part of the case.

ARENA: In an effort to recover, his lawyers called Moussaoui's testimony too fanciful to be deemed credible and pointed out that, for years, Moussaoui insisted he was training for a separate al Qaeda mission.

They introduced statements from key al Qaeda leaders now in U.S. custody, who flatly denied he was supposed to be part of 9/11 and raised questions about his mental health.

(END VIDEOTAPE)

ARENA: And, so, we are told that the jury finally has come up with a verdict, just for our viewers tuning in now, in phase one of the trial of Zacarias Moussaoui, the only person, we need to remind you, that has been charged in connection with the September 11 attacks -- Tony.

HARRIS: OK.

Kelli Arena, we appreciate it. Thank you, Kelli. We know you have to make your way inside the...

ARENA: You're welcome.

HARRIS: ... the courthouse. We appreciate that.

Jeffrey Toobin, our legal analyst, our legal scholar, is on the line with us. And, Jeffrey, good to talk to you. There are so many issues to talk about in this case. First of all, thanks for taking the time.

The jury must decide in an interesting -- in an interesting case, if you can sentence someone to death for what they didn't do.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Exactly.

This is certainly an unusual case, unprecedented on many levels, because the government's theory of the case is that Zacarias Moussaoui, who was, we need to emphasize, in custody, in prison, on September 11 -- he was arrested in August -- because he lied to the officials who are interrogating him, the FBI, the government's theory goes, the government failed to stop the September 11 attacks, so, Moussaoui is responsible for the 3,000 deaths.

HARRIS: Wow. Let's take...

TOOBIN: That's the government's theory of the case, is that his silence, his lying, led to those deaths. It's a very unusual theory. I don't think anyone has been executed in this country for anything like that since the death penalty came back into use in the mid-'70s.

HARRIS: We know that the death penalty carries a high burden for prosecutors, but it would seem, if that's the theory of your case, the burden is even higher. So, the question to you, Jeffrey, is, how did the government do in making its case?

TOOBIN: You know, Tony, this is such a paradoxical case, because, on the one hand, it has been weak legally. It has been weak in proving the "but-for" causation. It has been weak, I think, in the government saying that the lies led to the deaths.

However, the crime is so awful, the magnitude of what went on is so awful, and Moussaoui's testimony, where he admitted he was a member of al Qaeda, where he admitted he was conspiring to use airplanes to attack the United States, but not in the 9/11 conspiracy, was so bizarre, that it's very hard to know how those two things are -- are being weighed in the mind of the jury.

Do they look at the facts of the case, which are troubling, or do they look at the larger implications and say, look, anyone involved deserves to die?

HARRIS: And it seems to me that, because of -- of this man's behavior in court, something else this jury has to be weighing is whether or not Zacarias Moussaoui is sane and competent.

TOOBIN: Well, that has -- that has been a long, tough question fought throughout this trial.

In fact, one reason this case has taken so many years, four years, to get to trial, is that Judge Brinkema has held many hearings about, first, whether he has been sane -- is sane enough to stand trial, and, then, at times, whether he was sane enough to represent himself. He wound up not representing himself in -- in the trial, but Judge Brinkema had deep concerns about whether he was sane enough.

And, frankly, his behavior throughout the trial has not put those questions to rest. So, even though this is not, strictly speaking, an insanity-defense case, certainly, one of the issues his lawyers have raised is, look: Look, this guy is too crazy to have been a genuine part of this conspiracy, and certainly too crazy for you jurors to put to death.

HARRIS: What do you think the government has learned about its ability to -- to prosecute enemy combatants, under this war on terrorism, in the federal court system?

TOOBIN: Well, I think, you know, today is -- is -- is an important day to ask that question, because, also today, the Supreme Court...

HARRIS: The Padilla case.

TOOBIN: ... declined to weigh the constitutionality of the other approach the government has taken, which is treating people stopped in the -- in the war on terror as enemy combatants, where they have no right to a trial, no right to a lawyer. That's -- that's how Padilla was held, until he was charged in a criminal case.

The Supreme Court decided not to deal with that question today. Both of the problem -- both of these techniques, the enemy combatants, which is contrary to many people's ideas of due process of law, and the criminal case, have real problems, and both have been on display, even today.

HARRIS: We're talking with CNN senior legal analyst Jeffrey Toobin.

And -- and, Jeffrey, just so that we're clear about the process here, the jury comes back, and there are a couple of options. The jury can say that, yes, he is death penalty eligible, or they could say no. Let me ask you about the latter.

What happens here if this jury comes back and says, no, he, Zacarias Moussaoui, is not death penalty eligible?

TOOBIN: Case is over. Trial is over. Moussaoui -- Moussaoui serves life in prison, without possibility of parole. If the answer today is no, he's not death penalty eligible, the case is over.

HARRIS: OK.

Talking to senior CNN senior legal analyst Jeffrey Toobin.

Jeffrey, I'm going to invite you just to sort of stand by with us, as we work through this process.

We're going to take a quick break and come back with our national security correspondent, Jeanne Meserve.

You're watching LIVE FROM. (COMMERCIAL BREAK)

ANNOUNCER: This is CNN breaking news.

HARRIS: Again, the jury has reached a decision, a verdict, in the Zacarias Moussaoui penalty phase of his trial.

We want to go to Washington, D.C., now and Jeanne Meserve, our national security correspondent.

I should remind you that we should be hearing that verdict inside the hour.

Jeanne, you have an -- an interesting perspective on this whole Moussaoui story. You actually had an opportunity to talk to his mother.

JEANNE MESERVE, CNN HOMELAND SECURITY CORRESPONDENT: That's right.

This courtroom, you must remember, is just a short distance from the Pentagon, which was hit on 9/11. There have been in this courtroom during this procedures -- procedures victims' families. Most of them have very strong opinions on Mr. Moussaoui. Some believe that he should be executed for his crimes. Others believe that that would make a martyr of him.

But there have been very few people in that courtroom supportive of Mr. Moussaoui -- one exception, his mother, who came to the United States from France for the beginning of the trial. I conducted an exclusive interview with her the day before the trial began.

Here's an excerpt, some of what she had to say.

(BEGIN VIDEOTAPE)

MESERVE: Why does he hate America and Americans?

AICHA EL-WAFI, MOTHER OF ZACARIAS MOUSSAOUI (through translator): When he was young, when he was at the house, a -- a kid, he would always watch American films on television. And, at that time, he did not hate Americans.

But what happened to him afterwards, after he left the house, I cannot tell you. I do not know.

MESERVE: You have no idea how he came to be a member of al Qaeda and what might have influenced his thinking?

EL-WAFI (through translator): Well, in 1992, he went to London to learn English.

So, it's during those 10 years that he spent in the U.K. that all of this transformation occurred. And, as far as I'm concerned, for four or five years, I -- I had absolutely no knowledge of what was going on with him. MESERVE: Do you believe that he can get a fair trial here?

EL-WAFI (through translator): No, I -- I don't think so. I will rely on the judge. I will rely on the jury. But the fact of the matter is, is that my son's trial is not a son -- a trial that is based on the evidence. It has turned into a political trial. So, I don't think so.

MESERVE: Do you feel that he is a scapegoat?

EL-WAFI (through translator): Yes. What do they have against him? What can they reproach him? All they can have against him is the things that he has said, the words that he has used, but actual acts that he committed, there aren't any.

MESERVE: Is there anything else that you would like to add that I haven't asked you about?

EL-WAFI (through translator): What I hope, ultimately, is that the truth will be told, that the entire truth will come out, that my son will be judged in an open manner, that the -- in -- in the light.

What is most important to me, as a human being and as a mother, is the truth. I always say things as I see them. Whether he's guilty or not, what is really important is that the due process be followed. I don't want him to be a scapegoat.

(END VIDEOTAPE)

MESERVE: Tony, of course, one of the extraordinary things about this trial is that Moussaoui has undercut his own defense. The defense has been arguing that he was a rather ineffectual member of al Qaeda, that he was regarded as cuckoo by some other members.

However, Moussaoui, of course, went on the trial himself, said he knew about the 9/11 plans to fly planes into the World Trade Center, that he, in fact, was part of a plot to fly a plane on that date into the White House. Now, the defense did prevent -- present excerpts of interviews they had done with al Qaeda members which contradicted that.

What the jury will do, we're going to find out in about 45 minutes time -- Tony.

HARRIS: Jeanne, I have to ask you about that interview. Was Moussaoui's mom able to explain some of the bizarre behavior that -- that came to be a part of this trial?

MESERVE: No. I wouldn't say she tried to explain it, exactly. She did say, here's a guy who has been held in -- in virtual isolation for years now. And he feels a need to articulate something. The courtroom is some place where he can do it.

But, yes, his outbursts in the courtroom have been quite remarkable. I have witnessed a couple of them. And they certainly put you back on your heels, not the sort of thing you ordinarily see in the U.S.

HARRIS: Jeanne Meserve, our homeland security correspondent -- Jeanne, thank you.

MESERVE: You bet.

Phil Hirschkorn is one of our -- our most valued CNN producers. He is in Alexandria, Virginia, where we're standing by for the jury's verdict in the penalty phase of the Zacarias Moussaoui trial.

Phil, good to talk to you.

I have to ask you. You have seen so much of this. Let me ask you about one of the personalities in all of this, Judge Brinkema. She has had her hands full with this, hasn't she?

PHIL HIRSCHKORN, CNN PRODUCER: She really has, for four-and-a- half years.

I mean, from the first day we came to this courthouse in January 2002, Moussaoui was a problem. He just doesn't like to play by the rules. He, for the most part, doesn't recognize the validity it of an American court. On that very first day four years ago and change, he wouldn't even enter a plea. She had to enter a not-guilty plea for him.

And, then, she endured about a year-and-a-half of Moussaoui representing himself, filing improper motion after improper motion, insulting everybody, including her, calling her the death judge and worse names that I can't repeat on television.

And, you know, the trial has been, as others have said, anything but normal. There has been roadblock after roadblock. There had been appeals. She had -- she has issued rulings that have been reversed on appeal. And what was supposedly going to be the rocket docket turned out to be four years of pretrial motions.

HARRIS: Yes.

You know, we have talked about -- and Jeanne -- I talked about it just a moment ago with Jeanne -- some of the bizarre behavior exhibited by Zacarias Moussaoui in -- in court.

I'm -- I'm curious. You have been there throughout, well, all of it. How much of that behavior was in front of the jury? How much have they seen?

HIRSCHKORN: Just a little bit, in terms of the outbursts.

When jury selection started, at the beginning of February, you had hundreds of jurors who were screened by this court. They sent out lengthy questionnaires. And then they came in, in groups and were interviewed one at a time about what they had said on those questionnaires.

And, at the start of each session, Moussaoui would yell out various things, such as, you know, "I am al Qaeda," or "Praise Osama bin Laden," not things that are very smart to yell out to a group of people, you know, if you want them to spare your life.

So, they certainly witnessed that. And, then, the judge had to ask from the beginning: "Hey, folks did those outbursts bias you, so you can't judge this case?" So, she had to deal with that, and the jurors had to deal with that at the beginning.

The only other thing they have really witnessed from Moussaoui -- that is, the 17 jurors who sat through the trial -- is a -- a guy pretty quiet, by himself, at his own table, separated from his counsel. The jurors have learned he doesn't really get along or talk to his own defense attorneys.

But, of course, the thing that changed everything here was when Moussaoui testified last Monday about his role in the conspiracy, and, as Jeanne Meserve was just saying, really turning his story upside- down, admitting -- claiming, that he had knowledge of 9/11 before it occurred, knowledge that the World Trade Center was targeted and claiming that he himself would have piloted a fifth plane that day into the White House.

HARRIS: Yes.

Phil Hirschkorn, we appreciate it. Phil, stick around for us.

We're going to take a quick break. When we come back, we will update you on the storms that have wreaked so much havoc through the -- the South of this country and the Midwest as well. We will be joined by Tennessee's governor, Phil Bredesen.

That's after a break.

You're watching LIVE FROM. We will be right back.

(COMMERCIAL BREAK)

ANNOUNCER: This is CNN breaking news.

HARRIS: And, if you are just joining us, we are standing by, expecting to hear the jury's decision in the Zacarias Moussaoui penalty phase.

This is actually phase one of the penalty phase, if you will, that is going on right now. The jury has reached a decision -- the jury deciding whether Zacarias Moussaoui can be held responsible for a single 9/11 death because of what he didn't tell, what he didn't say to authorities. We're expecting that -- to hear that decision from the jury at the top of the hour, 4:00 p.m. Eastern time. And, of course, we will bring that to you live.

And we're covering the story with a number of our CNN analysts.

Right now, we want to switch gear and bring you the latest information on the storm system, the double storm system, that rolled through the South and Midwest, causing so much death and destruction. Tennessee Governor Phil Bredesen has been monitoring reports from the tornado-stricken areas. He plans to tour the damage tomorrow.

He joins us on the phone now Kingsport, Tennessee.

And, Governor, we appreciate your time. Thanks for talking to us.

GOV. PHIL BREDESEN (D), TENNESSEE: Oh, it's great.

This was a -- this was a very, very tough thing for our state, a lot -- a lot of -- a lot of destruction and obviously a large number of deaths.

HARRIS: Give us the big picture of the state of your state, if you will, right now.

BREDESEN: Well, I think -- I mean, people here are obviously, you know, somewhat sobered by the -- the magnitude of the destruction.

Our first-responders are doing a great job. We sent some National Guard troops to help them in one -- in one county and some other state resources to -- dogs and those sorts of things.

But the first-responders are doing exactly what they are trained to do today. And I'm really proud of them.

HARRIS: What's the latest that you have on fatalities, the latest information?

BREDESEN: The latest that I have is 23 total, 15 in Dyer County and eight over in Gibson County, who are the two counties affected with fatalities. Those are both West Tennessee counties. And -- and the destruction is really substantial.

HARRIS: So, Gibson and Dyer?

BREDESEN: Yes.

HARRIS: What can you do, what can the state do to help people who have been knocked out of their homes, who are displaced right now?

BREDESEN: Well, you know, we have a number of things we can do. And, obviously, we integrate and work with FEMA, our own emergency management -- management agency, and they have considerable resources that were given them by the Congress to deal with that.

Right now, we're trying to make sure that there aren't people left in the rubble. That, obviously, is -- is very important, try and make sure we get power back to people, and -- and make sure the basics are there. And, then, I'm going to take a firsthand look tomorrow morning and see what else we need to do.

But I think -- I think the most important thing right now is, you know, let our first-responders do their work, and ask the people across our state to pray for those families who have -- who have lost people.

HARRIS: Personally, how tough is this? I mean, I'm sure we will come to know and you will come to know that you -- you have people who are friends, supporters of yours, who have been devastated by this.

BREDESEN: Well, yes.

It's -- you know, this kind of thing is always tough. And the -- you know, the deaths, of course, are very important. So -- but there's just a huge number of people who have lost homes or had substantial damage to their homes.

And -- and, as I always find with these things, you know, they're -- they are on the news for a couple of weeks, and then everybody goes home. And they are left with months and months of picking up and trying to put their lives back together. And we want to make sure we're doing everything we can to help people, you know, get -- get things together again.

HARRIS: I -- I guess I know the answer to this even before I ask it. So, you will take an aerial tour, and -- and I suppose, at some point, you will -- you will actually hit the ground as well?

BREDESEN: Yes.

I like to go down and see things -- see things firsthand. It has always helped me in these things to sort of see it from the air, because you get a picture that's hard to get out of a car on the ground. But, mostly, I like to go down and just talk to some of the people...

HARRIS: Yes.

BREDESEN: ... and, you know, reassure them that we are there and we are trying to help.

HARRIS: OK. Tennessee Governor Phil Bredesen -- Governor, thanks for your time. And...

(CROSSTALK)

HARRIS: And the best, as you -- as you do your tour and help the people who have been so devastated by these storms.

We appreciate it.

(CROSSTALK)

BREDESEN: Thanks.

HARRIS: Standing by. Once again, we're expecting to hear the jury's decision in the Zacarias Moussaoui penalty phase at the top of the hour. We will continue to take a look, a very close look, at this case.

We will take a break -- more LIVE FROM right after this. (COMMERCIAL BREAK)

ANNOUNCER: This is CNN breaking news.

HARRIS: And, once again, we received word inside the half-hour that the jury has reached its verdict, has decided its -- has made its decision in the penalty phase of the Zacarias Moussaoui trial. This is, again, the -- the penalty phase. And this is to decide whether or not Zacarias Moussaoui is death penalty eligible. The jury must decide whether Moussaoui can be held responsibility, again, for a single 9/11 death because of what he didn't do, because of what he didn't tell authorities.

After hearing about two and a half weeks worth of testimony, the jury began deliberating last Wednesday. The panel had only one thing to decide, again, should Moussaoui be sentenced to death.

CNN justice correspondent Kelli Arena takes a look back at the trial.

(BEGIN VIDEOTAPE)

ARENA: In this phase of the trial, the jury considered one basic question, is Zacarias Moussaoui responsible for the death of at least one person in the September 11 attacks?

The government argued he is because by lying to investigators in August of 2001 about his al Qaeda ties, he allowed the 9/11 plot to go forward.

ANDREW MCBRIDE, FORMER FEDERAL PROSECUTOR: The prosecution case is novel. It's a different theory than the government has tried in any other case.

ARENA: The defense called the prosecution's argument flimsy, telling jurors even that if Moussaoui had told the truth, government bureaucracy and incompetence would have gotten in the way of stopping the attacks.

So far the trial has been anything but predictable. The first big surprise that Carla Martin, a government lawyer, sent transcripts of court testimony to aviation experts, who were scheduled to testify, in direct violation of the judge's order.

In response, the judge banned all aviation witnesses from testifying but later allowed prosecutors to call an alternative witness who had no contact with Martin.

UNIDENTIFIED MALE: The evidence they put in while helpful is imperfect. It's not everything they would have had had Miss Martin not tainted a number of documents and two very key witnesses.

ARENA: The second shocker, Moussaoui himself took the stand against the advice of his attorneys and severely undercut his own defense. Moussaoui testified he not only knew about the 9/11 plot but was a part of it. He said he was supposed to pilot a fifth plane into the White House with the so-called shoe bomber Richard Reid.

MCBRIDE: It's going to be a big challenge for the defense to lessen the effect of Moussaoui's own testimony. In any case in which a defendant testifies, whether it's a defense penalty case or not, the defendant's testimony then becomes the most important part of the case.

ARENA: In an effort to recover his lawyer's called Moussaoui's testimony "too fanciful to be deemed credible" and pointed out that for years Moussaoui insisted he was training for a separate al Qaeda mission. They introduced statements from key al Qaeda leaders now in U.S. custody who flatly denied he was supposed to be part of 9/11 and raised questions about his mental health.

(on-camera): If the jury has decided that Moussaoui is eligible for the death penalty, they will then have to consider whether he deserves to be put to death. If they decide that he's not eligible for the death penalty, he'll be sentenced to life if prison.

Kelli Arena, CNN, Alexandria, Virginia.

(END VIDEOTAPE)

HARRIS: And let's spend some more time now with our homeland security correspondent Jeanne Meserve. She is in Washington with us.

And, Jeanne, boy, there have been so many moments in this trial. I have to ask you about one moment that was just unforgettable. It was the work that Carla Martin -- and maybe that's all I need to do is mention the name, Carla Martin, and you take it from there.

MESERVE: Well, she was the transportation security administration lawyer. She was working coordinating testimony from government officials on the question of aviation security.

And the prosecution was shocked to find out just before the trial began that she had communicated with some of these potential witnesses and scheduled witnesses in e-mails providing them with transcripts of the opening statements of the attorneys and also offering e-mail critiques of the defense, which were actually very critical.

The prosecution when they became aware of this informed the judge and when court went back into session the following Monday this was the first thing that was brought up. Carla Martin came into the courthouse, and I must say, I watched her walk in and she seemed unaware of the magnitude of what she had done.

But the judge clearly was aware. She called it a blatant and egregious violation of her court order, which forbid this sort of thing from taking place. Martin was put on administration leave by the TSA. And she is now under investigation by the U.S. attorney in Philadelphia. The specter has been raised that she could be open to civil or criminal contempt or witness tampering charges.

So she is still in some hot water here. and It hurt the government case because initially the judge said no aviation testimony at all. She later reconsidered that, and, as Kelli mentioned in her piece, they did allow some limited testimony in, but it wasn't all the testimony the government would have liked to present.

HARRIS: Jeanne, I have to ask you this question. And I don't know that we know the answer to this yet, but there is some conversation that if the jury comes back with no Moussaoui is not death penalty eligible in this case that the government will move for a mistrial. Have you heard that?

MESERVE: Yes, there has been some discussion along those lines. My understanding is how these things usually work if there's a vote of no by the jury on this phase, it's over and done with. But the government is contending that, no, unless it's a unanimous no-vote that it could be a mistrial. They could ask for another jury to be paneled and try the case again essentially.

Those who are legal scholars have debated the merits of that and aren't sure what solid foundation the government may have for doing that. It's not what usually happens, but it is an argument that the prosecutors are making in this particular case.

HARRIS: So, Jeanne, what is the jury makeup?

MESERVE: There are nine men and there are three women. A couple of months ago when jury selection began they called about 500 people to this courthouse in Alexandria. It was quite a scene, very heavy security, masses of people coming in shifts. They would fill the entire courtroom except for a couple of seats at the back that those of us in the media were allowed to take.

They were talked to by the judge and given a very extensive jury questionnaire, which probed their views on any number of things, whether they had been impacted by 9/11, their view of the FBI and its performance and of course the standard sorts of questions about have you been a victim of crime.

It was whittled down eventually to 17 people. They heard the case, and then just last Wednesday they drew lots and the 12 were selected who would decide this case. But nine men, three women.

HARRIS: OK. Our homeland security correspondent Jeanne Meserve for us in Washington following these developments as well.

On the phone with us right now -- Jeanne, thank you. On the phone with us right now is Alice Hoagland. And you may remember Alice and her story. Her son died aboard flight 93 on that fateful day. Alice is on the line with us from San Francisco.

Alice, good to talk with you. Thanks for the time.

ALICE HOAGLAND, MOTHER OF FLIGHT 93 VICTIM: Thank you very much.

HARRIS: Alice, kind of in broad strokes, what are your thoughts on this day when we are just a few minutes away at the top of the hour from hearing the jury's decision on this? HOAGLAND: Well, this is a momentous day. This represents the only chance that the United States has to prosecute and convict one of the September 11 hijackers. I'm convinced that Zacarias Moussaoui had he not been apprehended by the FBI would indeed have taken part in the September 11 attacks.

I am sorry to see that the defense insist that the prosecution's case against Zacarias Moussaoui is flimsy. The case is certainly not flimsy, and I'm siding with the prosecution even though I have been asked to speak and give my thoughts in the courtroom on behalf of the defense if it goes to the question of whether or not Moussaoui should be executed.

But during this initial phase I'm certainly throwing my weight behind the prosecution when they point out that had Zacarias Moussaoui spoken up and not lied when he was apprehended in August then the attacks on September 11 would not have gone forward. I'm confident the FBI would have been able to intercept and prevent what happened on September 11.

HARRIS: Hey Alice, how did you think the prosecution did? There were moments where you had to a little nervous that the prosecution was making kind of a hash of this?

HOAGLAND: Well, I feel sorry for Carla Martin. She's a former flight attendant and probably doing her best. It's tough being in her shoes. I'm sure she feels terrible about what happened. Yes, yes, oh with past dramas in courtrooms it's really difficult, impossible to predict what will happen. I'm just holding my breath.

I hope that the verdict is guilty. And I hope it does go to a second phase because the next question to ask whether or not he should be put to death is quite a different one. I am hoping that America can show some restraint with the life of this particular very guilty, very befuddled, very angry and wrong man.

HARRIS: Well, let me be clear about this Alice. So you don't want to see him -- assuming that the jury comes back and says yes, he is death penalty eligible, the next phase is to determine if it should be applied and do I hear you saying that it is your view that he should not be put to death?

HOAGLAND: After considerable thought about it, I would have to say, yes, that is my view. As my brother, Von (ph), has pointed out that it is no picnic spending the rest of your life behind bars. I anticipate that yes, indeed, he will spend the rest of his life behind bars. But I do not relish the idea of his going to his death. Let that be the barbaric act of people who are outside the law, people who -- such as Moussaoui, who took it into his hands and his buddies took it into their hands to bludgeon and butcher 3,000 people.

We as a civilized nation have a different mandate, and I hope to be able to express that. For now I'm just holding my breath and crossing my fingers along with the other 9/11 families that we will indeed have a guilty verdict.

HARRIS: You raised him, so I'll ask you the question. Do you think your son would agree?

HOAGLAND: Well, Mark was -- my son Mark Bingham died on Flight 93. He was a free spirit' he surprised me with his views. He was liberal, he was a conservative, he was a gay man and he had friends who were straight.

And he was -- on the morning of September 11, he was flying from Newark to San Francisco to attend the wedding of his good friend, a Kai Sei (ph) buddy who was a Muslim. So you tell me how Mark would have taken this! He and I used to talk politics, kind of argue politics a lot. And so I don't know. I strongly believe I'm going to see him again some day and maybe he'll tell me then.

HARRIS: It's a bit of an unfair question but I had to ask it.

HOAGLAND: No, I'm glad you did.

HARRIS: Alice, you're terrific. Thanks for your time.

HOAGLAND: Well, thank you very much. Good luck with this.

HARRIS: Thank you. Alice Hoagland. Her son died on Flight 93.

We are standing by to hear the jury's decision in phase one of the penalty phase of the Zacarias Moussaoui trial. The verdict is in. We expect that it will be read at the top of the hour and, of course, we will bring that to you live. We'll take a break. More LIVE FROM right after this.

(COMMERCIAL BREAK)

HARRIS: And if you are just joining us, the jury hearing, phase one of the Zacarias Moussaoui penalty phase has reached a verdict. We are expecting to hear that verdict read at the top of the hour.

In the meantime, we are joined now for some analysis by George Washington University law professor Jonathan Turley.

Jonathan, good to talk to you.

JONATHAN TURLEY, GEORGE WASHINGTON UNIVERSITY: Good to talk to you.

HARRIS: A key question for this jury. Let me read it to you and get your thoughts on it. Do you unanimously find the government has established beyond a reasonable doubt -- beyond a reasonable doubt -- that at least one victim died on September 11, 2001, as a direct result of the defendant's act, i.e. the defendant's lies to federal agents on August 16, 17, 2001? Is that something that is knowable? Is it knowable?

TURLEY: Well, it's highly speculative. Indeed, the judge herself noted she could not recall another death penalty case that was based on this type of loose conspiracy theory. After all, all the investigations into the FBI and government agencies found complete incompetence. They indeed already knew that terrorists were considering the use of airplanes as weapons for terror. They already had information about some of these cells that were working, and they didn't do anything.

And so there's a great deal of speculation when you look at the question of if Zacarias Moussaoui had said something to someone, would that have prevented 9/11? The problem is really Zacarias Moussaoui, that his testimony just sucked the air out of the defense.

Before Moussaoui took the stand, most of us were betting the government would lose its effort to get the death penalty. Then Moussaoui sort of rode down from the hills and saved them yet again. Because remember, when Moussaoui pleaded guilty to all these counts, the government's case had become somewhat laughable. You know, their claim he was the 20th hijacker was contradicted by intelligence officials in our own country.

HARRIS: Yes. Hey, Jonathan, I have to ask you. Maybe one of your law students will ask it, and maybe they already have. Given this theory -- given the theory and the wording in that key question, should the government be allowed to try to attach the death penalty in this case?

TURLEY: Well, I have to tell you, I agree with the judge that I think it is extremely dubious to argue that the government had proven beyond a reasonable doubt that but for Zacarias Moussaoui not supplying this information, 9/11 would not have occurred. I mean, I just -- I've never seen a case like it.

I don't think that this is a good case for the death penitentiary. Instead, one gets the feeling that you know, the government promised these families that someone would pay for 9/11 with his life. And Zacarias Moussaoui seemed to walk right out of central casting. But when he sat on that stand, he pretty much put a noose around his neck. I mean, the prosecutors could not have written testimony better for their side than what Moussaoui supplied during his testimony.

HARRIS: OK, Jonathan, stand by. Let's go back to CNN's senior legal analyst Jeffrey Toobin. And Jeffrey, what's your reaction to what you're hearing from Jonathan?

TOOBIN: You know, I think Jonathan is right. This is a very peculiar case. I think if -- and I don't want to get too far ahead here -- but if he is found eligible today and if the jury gives him the death penalty, this is going to be a very difficult appeal for the government because there is some sentiment in prior Supreme Court opinions and other opinions on the death penalty that you have to have a more direct stake in the murder. You have to wield the knife, you have to shoot the gun, to support a death penalty in this case.

Now, this case is so unusual because of the number of deaths, because of the enormity of the crime. But even though the crime is enormous, the connection to the crime that the government charges here from this man, who we need to emphasize, again, was in prison on September 11th, is just a very hard thing for the American legal system to sustain. HARRIS: Yes, I'm trying to understand then, was this in some respect a bit of a stretch? Was this, as Jonathan suggests, the federal government saying, you know what, we are going to make someone pay for what happened on 9/11? Regardless of whether or not it is a sound case, whether or not it meets all the legal standards, we are going to make someone pay and guess what? We think we found a guy who will walk through the door and help us.

TOOBIN: I think that's a little too tough on the government. I think, you know, remember what the government had here. The government has a guy as he testified himself, he is a member of al Qaeda. He is an admitted terrorist.

HARRIS: I am al Qaeda.

TOOBIN: He was planning to use an airplane to attack the government. All of which he admitted. So it's not like they look through the phone book and said let's blame somebody for this terrible conspiracy. He was acquainted in some way with some of the hijackers. So it's not like they picked some random person.

But in terms of the usual connection between the crime and the criminal, in the American legal system, it is usually a heck of a lot tighter than the connection between Zacarias Moussaoui and 9/11. So you know I can see why the government brought this case but I can also see why jurors might have a tough time with it.

HARRIS: So, Jonathan, still there with us?

TURLEY: Yes, I am.

HARRIS: Jonathan, just a question. We sort of -- well maybe the basic question is the best question. What do you think is going to happen? What do you think this jury -- what kind of decision has the jury reached?

TURLEY: Well, you know, that goes down to sort of reading entrails. It's very, very precarious sort of guess about juries, particularly in cases well argued like this one. But I have to say the betting on the street is against Moussaoui after his testimony. This jury is going to have to overcome unbelievably prejudicial statements made by Moussaoui.

He said he was celebrating the death. He referred to it as euphoric. He's a very hateful and unbalanced man. It's hard for a jury to care enough about someone like that. And so the betting is against Moussaoui and you know the -- if they did come back with a decision that he was not eligible, it would be a remarkable feat of overcoming that type of prejudicial statements.

HARRIS: Jonathan Turley, thank you. Jeffrey Toobin I'm going to ask you to stand by. We're going to take a break. Again at the top of the hour we're expecting to hear the jury's verdict in phase one of the penalty phase of Zacarias Moussaoui trial. We'll take a break. More LIVE FROM right after this.

(COMMERCIAL BREAK)

HARRIS: Once again if you're just joining us the jury hearing phase one of the Zacarias Moussaoui penalty phase has reached a verdict. We're expected to hear that verdict at the top of the hour from Alexandria, Virginia. To take you top of the hour let's join Wolf Blitzer inside THE SITUATION ROOM.

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