Moussaoui's court-appointed lawyer says Supreme Court decision should prevent death sentence

<br>ALEXANDRIA, Va. (AP) _ The court-appointed lawyer for Zacarias Moussaoui is intensifying his efforts to bar use of the death penalty against his client, even though Moussaoui has accused the lawyer

Thursday, July 11th 2002, 12:00 am

By: News On 6

ALEXANDRIA, Va. (AP) _ The court-appointed lawyer for Zacarias Moussaoui is intensifying his efforts to bar use of the death penalty against his client, even though Moussaoui has accused the lawyer himself of plotting his execution.

Undeterred by the accused Sept. 11 conspirator's repeated demands for his dismissal, lawyer Frank Dunham Jr. contended Wednesday that a recent Supreme Court ruling makes the federal death penalty unconstitutional.

Dunham submitted arguments months ago opposing the government's stated intention to have Moussaoui executed if he's convicted of plotting with the 19 hijackers to commit terrorism on Sept. 11. Moussaoui was in federal custody for immigration violations when the World Trade Center and the Pentagon were attacked.

The Supreme Court ruled on June 24 that juries have to make the crucial decisions about death sentences.

The justices declared the sentencing laws of five states unconstitutional, calling into question whether 168 death row inmates in those states will be executed. The decision also could affect some inmates in four other states, lawyers said.

In his latest motion, Dunham contended the ruling also would apply to the federal law. A grand jury must specifically consider the death penalty issue in Moussaoui's case, he said.

However, Dunham said even a revised indictment dealing with the death penalty should not allow the government to seek Moussaoui's execution. He said only Congress could fix the federal death penalty law's constitutional flaws in light of the Supreme Court decision.

Dunham said that in Moussaoui's case, prosecutors, not jurors, made the decision to seek Moussaoui's execution.

``The executive branch, including these prosecutors, surely cannot arrogantly assume that power for themselves,'' Dunham argued.

U.S. District Judge Leonie Brinkema has allowed Moussaoui to represent himself but ordered Dunham to remain a legal adviser, just so the public defender could argue major issues like this one. Moussaoui, who refuses to speak with Dunham, has filed handwritten motions cursing the lawyer and accused him of conspiring with the judge and prosecutors to have him killed.

Moussaoui, a 34-year-old French citizen, has described Dunham and his associates as ``a bunch of blood sucker, really discusting.'' He said the team included a ``wicked'' public defender, a ``nasty Jewish zealot'' and a ``right wing fascist.''

The government hasn't said whether it believed a revised indictment would be needed to bring Moussaoui's case in compliance with the court ruling.

Dunham argued that the high court's ruling in Ring v. Arizona questioned whether conduct that could lead to the death penalty amounted to a new crime that a grand jury must consider.

Congress would have to determine which death penalty factors must be included in an indictment and whether the defendant must plead to those factors, he said.

``It is clear that, in light of Ring and its necessary implications, the (federal death penalty law) is unconstitutional on its face,'' Dunham argued.

``It ... commits to the government the ability to determine upon what factors a sentence of death may be predicated ... subject only to the court's determination of constitutional adequacy.''