The trials of self-defense

You don't actually have to go to law school and pass the bar exam to know that it is probably a bad idea for a defendant representing himself in a capital punishment case to repeatedly belittle the integrity of the judge.

Nonetheless, this seems to be a frequent feature of the highly unusual legal strategy emerging in the case of Zacarias Moussaoui. At one point, he refers in legal memos to US District Judge Leoni Brinkema by placing the letters "SS" before her name, to suggest she presides in court like a Nazi shock troop commander.

"SS Brinkema do[es] not want me to speak out to anybody before she declare[s] me crazy," he says in one of many hand-written motions filed in the case. "Stalin also declared his enem[ies] crazy before killing them."

Mr. Moussaoui's performance so far in court, where he is on trial for allegedly being the 20th hijacker in the Sept. 11 attacks, has prompted many analysts to dust off the old legal saw about how anyone who serves as his own lawyer has a fool for a client.

But beyond all the rantings of this Muslim fundamentalist, the trial may be important for generations to come. It will test how far the US government may go in limiting the legal knowledge and expertise available to a criminal defendant deemed a potential risk to national security.

He is expected back in federal court in Alexandria, Va., on Thursday, after Judge Brinkema gave him a week to reconsider whether he really wants to plead guilty to a six-count indictment that carries a maximum penalty of death.

But there is more going on in the Zaccarias Moussaoui trial than just the high-octane rhetoric of a self-proclaimed Al Qaeda member and supporter of Osama bin Laden who deeply distrusts just about everyone involved in his trial – particularly his own court-appointed lawyers. (He says they are "just a horde of blood sucker[s] in disguise.")

If Moussaoui seems particularly unschooled on the finer points of federal law – by attempting to plead no contest earlier this month and trying last week to enter a partial guilty plea – it isn't just because he never attended law school. It is also because federal prosecutors and Judge Brinkema have denied him access to the one lawyer he says he trusts.

Houston lawyer Charles Freeman, who is also a Muslim, met several times with Moussaoui in June to discuss legal issues. But federal prosecutors put an end to the meetings. They insisted that if Mr. Freeman was going to offer legal advice to Moussaoui he must file a formal request to the judge to act as a lawyer for Moussaoui and must also obtain approval and clearances from the US government.

Freeman objected to having to submit to a US investigation before he could have a series of informal conversations with Moussaoui about federal law. He didn't want to represent Moussaoui, he said, he just wanted to help him understand the implications of various legal tactics.

If the government had "the expectation that I would merely roll over and play dead for them intellectually or otherwise, then they were sadly mistaken," Freeman wrote in a motion to the judge asking permission to continue to talk to Moussaoui.

The judge refused to grant the permission. "Having exercised his Sixth Amendment right to represent himself, the defendant is not entitled to the standby or 'advisory' counsel of his choice – particularly if the proposed lawyer is unwilling to enter a formal appearance and be bound by the rules of this court," she writes.

Existing legal precedent makes clear that indigent defendants relying on court-appointed and publicly-funded lawyers do not enjoy a constitutional right to pick and choose which lawyer they want to represent them. When defendants use their own money to hire a lawyer, they have a right to counsel of choice.

But that wasn't the issue between Moussaoui and Freeman. The two men say they wanted to exercise their First Amendment right to freely speak and associate with each other. Moussaoui says he was attempting to build a credible defense case despite government efforts to hold him incommunicado in pre-trial detention.

He wasn't looking for a lawyer, just trustworthy advice.

The danger of such contacts, according to the government, is that Moussaoui might use Freeman as a means to communicate with other Al-Qaeda supporters.

Any classified information or the identities of intelligence operatives revealed during the trial may be routed to Al-Qaeda.

But, on the other side, by barring access to the only lawyer Moussaoui trusts, the government has significantly undercut Moussaoui's ability to mount a meaningful defense.

As long as Moussaoui continues to distrust his court-appointed counsel, the chances of a government victory are greatly enhanced because Moussaoui is unable to explore other options to investigate and develop a defense.

"I have nobody to investigate the case for me outside [the detention facility], to contact witnesses," he writes in a motion to the judge. "I have no access at all to news. No right to TV, to newspapers, to radio. No phone. No printer."

He adds, "That [is] the only way for them to win this case: To have no opposition."

Stephen Saltzburg, a law professor at George Washington University in Washington, says that by denying Moussaoui access to meet with Freeman, the government may have greatly complicated a potential resolution to the case.

"Sometimes the government overreacts in situations like this and I think they might have," Mr. Saltzburg says. But he adds, "I don't think it is too much to ask that [Freeman] establish a formal relationship and be held accountable like any other lawyer."

Gerald Goldstein, a San Antonio criminal defense lawyer and past president of the National Association of Criminal Defense Lawyers, says the absence of a trusted lawyer on Moussaoui's side is a serious obstacle to any potential plea bargain. Such a plea agreement could quickly and quietly end the case.

"There is no opportunity for rational dialogue and negotiation if all you are going to get is a diatribe and jingoistic epitaphs being thrown," Mr. Goldstein says. "It doesn't really encourage thoughtful negotiations toward settlement."