Manassas Journal Messenger | Trial strategy may be to avoid death penalty

VIRGINIA BEACH — In many ways, the case of the Commonwealth of Virginia v. John Allen Muhammad, set to start Tuesday morning in Virginia Beach, is unlike any other in state history.

The facts of the case are unique and unimaginable — the 42-year-old Army veteran is accused of masterminding a string of sniper attacks in which victims were gunned down while performing everyday tasks.

But to the lawyers defending Muhammad, the case demands the same approach and analysis as any other capital-murder trial in which a man’s life is at stake, according to legal experts.

“For the defense lawyers, the case is not so unique in its fundamentals,” said Richmond defense lawyer Steven D. Benjamin. “First, you have to examine the strength of the commonwealth’s case. Do prosecutors have enough evidence to convict him of a capital crime? And you proceed from there.”

For the past year, a multijurisdictional task force and prosecutors have compiled a long list of circumstantial evidence pointing to Muhammad’s guilt. The .223-caliber Bushmaster rifle linked to the shootings was found in the car in which he and co-defendant Lee Boyd Malvo were sleeping when apprehended last year, a bullet in the chamber, a clip in the magazine.

The car itself had been modified, a hole drilled in the trunk through which someone could fire undetected. A stolen computer found in the car contained a map denoting many of the shooting locations with skull-and-crossbones icons.

The suspects’ fingerprints were detected on a map found at the scene of the crime for which Muhammad is standing trial — the Oct. 9, 2002, killing of Dean H. Meyers, 53, at a gas station near Manassas. Numerous witnesses are expected to place Muhammad at or near some of last October’s sniper shootings. Prosecutors plan to introduce evidence linking Muhammad to 15 shootings.

Faced with such evidence, Muhammad’s attorneys might choose to focus more on keeping him out of the death chamber than on proving his innocence, legal experts said. During pre-trial proceedings, his lawyers mounted numerous unsuccessful attacks on Virginia’s death-penalty laws, laying a foundation for possible appeals.

“The main defense strategy, right now, from what we know, will be looking down the road to sentencing,” said Anne Coughlin, a criminal-law expert at the University of Virginia.

Lawyers for Malvo, 18, have been unabashed in saying they plan to portray him as an impressionable teenager brainwashed by a man 24 years his senior. They plan to mount an insanity defense, but Muhammad’s lawyers have been much more circumspect about their plans.

Peter D. Greenspun and Jonathan Shapiro, Muhammad’s court-appointed lawyers, have offered glimpses of their legal strategy. They have contended Malvo fired the shot that killed Meyers, and they have raised the possibility that Muhammad, a Gulf War veteran, was exposed to chemicals that subsequently drove his alleged homicidal behavior.

But their effort to prevent Muhammad from getting the death penalty has been complicated by a judge’s ruling prohibiting lawyers from introducing any evidence about Muhammad’s mental health. The decision came after Muhammad refused to be interviewed by the prosecution’s mental-health expert.

Muhammad has talked to three defense mental-health experts, and Greenspun and Shapiro were planning to use their testimony during any penalty phase of the trial. They hoped such evidence could blunt the prosecution’s portrayal of Muhammad as a cold-blooded killing machine unleashed on a community that cowered in fear for three weeks.

The judge’s decision to ban mental-health evidence strips Muhammad’s lawyers of potentially compelling evidence they could have used. Coughlin said Muhammad’s refusal probably has left his lawyers “scrambling.” In capital cases, more than any other, “the issues are likely to boil down to mental issues,” she said.

Muhammad’s lawyers still might be allowed to introduce evidence, as they indicated they might, about his Gulf War service and his possible exposure to chemicals, she said. But they apparently will not be permitted to call expert witnesses who could testify to its potential impact on his mental state.

“Without the context, without the experts to tie it all together, the defense has very little room to maneuver,” she said.

Coughlin said jurors could draw their own conclusions about the possible impact, but she added that jurors are instructed to resist such impulses and base their decisions only on evidence presented in court.

In the absence of mental-health evidence, Muhammad’s lawyers must now try to humanize him in the eyes of the jury.

“It would be a challenge to any defense lawyer,” Benjamin said. “You have a series of random, violent crimes. If he is convicted of capital murder, what evidence can be presented to a jury that would convince them the death penalty is not appropriate?”

“It’s hard to imagine a sympathetic story,” Coughlin added. But the defense could seek jury sympathy for “the fact that he served his country and was maybe exposed to things that caused some break or rupture with ordinary thought processes.”

The major hurdle faced by prosecutors lies in the fact that while they have built a compelling circumstantial case, they have little direct evidence linking Muhammad to Meyers’ death. No witness saw him fire the fatal shot. The rifle bore the fingerprints of only Malvo. Prosecutors have hinted that even they believe it was Malvo who squeezed the trigger and shot Meyers to death.

That lack of direct evidence against Muhammad might provide the best hope for defense lawyers to spare their client the death penalty. Virginia law generally provides that only the shooter in a gun-related killing can be convicted of capital murder and thus get the death penalty. But the law contains numerous exceptions, such as murder for hire.

Prince William County Commonwealth’s Attorney Paul B. Ebert plans to exploit one of those in his effort to win a capital conviction and the death penalty for Muhammad.

Specifically, Ebert will argue that Muhammad, while not firing the shot that killed Meyers, was a “principal in the first degree,” so deeply involved in the sniper attacks that he is just as culpable as the shooter. During a pre-trial hearing, one of Ebert’s assistants, Richard A. Conway, called Muhammad the “captain of a killing team.”

Benjamin believes that prosecutors face a difficult task in trying to expand the scope of the state’s capital-murder law.

“The statute is clear,” he said. “You have to be the triggerman. If you tell someone to pull the trigger, that’s a principal in the second degree, which is still punishable by life in prison. It’s not up to lawyers and courts to change the law. That’s up to the General Assembly.”

Judge LeRoy F. Millette Jr. has agreed to allow Ebert to argue the point that Muhammad is a principal in the first degree, though Millette has not indicated how he will ultimately rule on the question. Other opportunities for Muhammad to avoid execution may lie in the appeals process, legal experts said.

Muhammad also faces a possible death sentence under Virginia’s anti-terrorism law, which was enacted after the Sept. 11, 2001, terrorist attacks. This case is its first use. Some legal experts have predicted that the law and the sniper case eventually will wind up before the U.S. Supreme Court.

Prosecutors say the new law fits the sniper case because Malvo and Muhammad allegedly sought to influence the government by demanding $10 million to stop the shootings. Muhammad’s lawyers counter that the anti-terrorism statute is being misapplied. Because of the way the law is written, they say, the maximum penalty should be life in prison.

“Courts are inclined to resolve these questions in the defendant’s favor,” Coughlin said.

Muhammad and Malvo also are each charged under a separate capital-murder provision that alleges the killing of more than one person within three years.

Greenspun and Shapiro have painstakingly laid the groundwork for appeals during the past several months, calling into question the untested anti-terrorism statute, the state’s application of the death penalty, as well as the triggerman issue.

So far, Millette has denied the defense’s pre-trial motions on each of those issues, but they remain ripe for appeal. Under court rules, the defense must raise each of these issues during pre-trial proceedings so they can later argue them to an appellate court.

As for a motion the defense team did win, moving the trial from the crime zone in Northern Virginia, the effect it will have on the outcome is unclear. “Sometimes, the community you know is better than the community you don’t know,” Coughlin said.

Paul Bradley and Kiran Krishnamurthy are staff writers for the Richmond Times-Dispatch.