Testimony from 9/11 victims: How much is fair?

In Moussaoui's trial, it can help jurors grasp the full impact of 9/11, say some. Opponents say it encourages jurors to rely on emotion.

By , Staff writer of The Christian Science Monitor

This is the week jurors in the sentencing trial of Zacarias Moussaoui saw the face of terrorism up close and personal.

There was nothing pretty about the raw and gut-wrenching images of the 9/11 terror attacks placed on public display in a federal courtroom in Alexandria, Va.

• A father's final cellphone conversation with his son moments before the son's jetliner was deliberately crashed into the World Trade Center.

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• Vivid photographs of the charred remains of service men and women at the Pentagon after a fireball of jet fuel engulfed the west side of the building.

• Desperate emergency calls from office workers stranded high up in the burning World Trade Center as they realized they had but moments to live.

The massive violence of that morning almost five years ago is so far from the routine of American life that it has some analysts questioning whether anyone accused of involvement in the 9/11 attacks could receive a fair hearing in court.

Much of the debate revolves around the appropriateness of permitting victims to testify about how the crime has affected their lives.

Victim's rights advocates say such testimony helps the jurors gain a broader appreciation of the full impact of an accused criminal's actions. Opponents say graphic testimony from victims can corrupt jury deliberations by encouraging jurors to rely more on emotion than reason.

In addition, analysts say that all Americans to some extent are victims of the 9/11 attacks - including members of the jury who soon must decide whether Mr. Moussaoui, an admitted Al Qaeda conspirator, should be sentenced to life in prison or death.

Prosecutors had selected more than 40 of 800 identified victims and surviving family members to tell their stories to the jury. This was their opportunity to help the jurors understand not only their personal loss, but the enormity of the crime.

"It is really important for the jury to hear that because it is the only way they can get a true sense on a human level of what that person's death means and how much suffering was caused by the perpetrators of this crime," says Mary Lou Leary, executive director of the National Center for Victims of Crime in Washington.

Legal analysts say defense lawyers trying to save Moussaoui's life face a difficult task following the victims' emotional testimony.

"The jurors are [being] reminded of all the emotions they felt from that day, from watching television or whatever connections they have to 9/11," says Joshua Dressler, a professor at Ohio State's Moritz College of Law in Columbus. "I find it difficult to imagine how they will find mercy for someone who had put them and those victims and families through that."

Other analysts say there is nothing wrong with jurors understanding just how terrible a terrible crime is. "The magnitude of the crime is what victim impact is supposed to bring into the case. That is not prejudice, that is probative," says Kent Scheidegger, a capital-punishment expert at the Criminal Justice Legal Foundation in Sacramento, Calif.

Mr. Scheidegger says the enormity of 9/11 cannot and should not be sugarcoated. "Most murders are horrendous," he says, "but this one is orders of magnitude more horrendous."

Steve Twist, a victim's rights lawyer in Phoenix, takes a similar view. "It is impossible to divorce emotion from a murder case," he says. "I don't care if it is the Twin Towers murders or an individual murder."

But legal experts say this doesn't mean prosecutors should be entitled to call all 800 victims to the stand.

US District Judge Leonie Brinkema has warned the government about presenting so much graphic and emotion-laden testimony that it might raise questions among appeals court judges about the fairness of the trial.

There is no clear standard of how much victim testimony might be too much in a death-penalty sentencing hearing. In 1987, the US Supreme Court ruled that any victim-impact testimony would violate constitutional protections.

"The formal presentation of this information by the state can serve no other purpose than to inflame the jury," wrote then-Justice Lewis Powell, for the majority.

Four years later in 1991, a different majority of justices overturned that decision, declaring that victim-impact evidence serves entirely legitimate purposes.

Nonetheless, the opinion by then-Chief Justice William Rehnquist also cited the possibility that too much victim-impact evidence might render a trial "fundamentally unfair."

Ms. Leary, a former federal prosecutor, says the Moussaoui hearing has been fair.

"In this case, I think the judge is wise to be on guard about how far [prosecutors] might go toward the line, and make sure they don't go over it," she says. "But I really don't think they have crossed the line."

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