Potomac News Online | Legal experts say self-defense is disadvantage

John Allen Muhammad might have seized control of his fate by firing his lawyers Monday, but he has little knowledge of court procedure, a disadvantage legal experts are pointing out.

“It is a rare case in which a defendant who represents himself can do so adequately. It almost always results in a circus atmosphere at the trial and incompetent representation,” said Ohio State University law school professor Joshua Dressler.

Muhammad will not know when to object to witness testimony and the prosecutors’ questions, and does not know how to question the admissibility of evidence, several experts said.

Even with all the difficulties of a trial, the biggest hurdles for defendants can be on appeal, when objections raised during the trial are important, said George Mason University law school professor Michael O’Neill. If Muhammad does not make objections at the right times, he will weaken future appeals, O’Neill said.

About the only thing Muhammad has gained is control, said Richmond defense attorney Steven Benjamin, who sits on the board of directors of the National Association of Criminal Defense Lawyers and is author of “The Criminal Law Handbook.”

“This is a man who has a severely inflated assessment ? of his own persuasive abilities,” Benjamin said.

Muhammad, 42, might have been able to control his alleged 17-year-old accomplice Lee Boyd Malvo, but a jury of 12 adults is far harder sell, Benjamin said.

“Ironically, it’s an awful decision for him, but it gives us a better idea of the truth of what happened,” Benjamin said. “The prosecution has always said that this was a case of Muhammad controlling the killing machine that he made of Malvo. The prosecution has always said that Muhammad was the man in control. Muhammad’s move [Monday] is the prosecution’s exhibit one. Muhammad couldn’t stand not having control over his own trial.”

Muhammad is charged with two counts of capital murder, conspiracy to commit murder and a firearms charge for the shooting of 53-year-old Maryland resident Dean Harold Meyers at a Sudley Road gas station north of Manassas.

Legal observers said Muhammad’s lawyers, Jonathan Shapiro and Peter Greenspun, were not preparing to argue complete innocence. They were instead arguing, if he was not the triggerman, he cannot be convicted of capital murder. The belief that he can convince the jury that he had nothing to do with the crimes “borders on psychosis,” Benjamin said.

Muhammad requested he be allowed to defend himself Monday just as the trial was about to begin, and Judge LeRoy F. Millette Jr. gauged Muhammad’s competency to do that by asking him about his education and understanding of legal rights.

The 1975 U.S. Supreme Court ruling in the case of Faretta v. California gives defendants the right to represent themselves under the Sixth Amendment.

As long as Muhammad’s waiving of his right to counsel is a voluntary and informed request that is timely, Millette has to allow it, Benjamin said.

The decision on the appropriateness of the timing was completely up to Millette — he could have denied Muhammad’s request because it came after jury selection, Benjamin said.

Shapiro and Greenspun have been kept on as standby counsel to assist Muhammad with his case preparation outside the courtroom or to take over if Millette rules Muhammad cannot defend himself.

Muhammad objected to two questions Prince William Commonwealth’s Attorney Paul B. Ebert posed to witnesses, saying one was asking for hearsay and the other was a leading question. Both the judge sustained, forcing Ebert to rephrase his questions.

Not major victories, but later when the jury was out of the room, Assistant Commonwealth’s Attorney Richard A. Conway asked Millette to take away Muhammad’s right to defend himself because he said he saw Greenspun directing Muhammad to object.

“It’s apparent the defendant cannot act as his own counsel,” Conway said.

Greenspun said Muhammad asked him questions and he answered; he did not tell Muhammad hearsay or leading questions.

“This is a difficult situation for us and we’re abiding by the court’s order,” he said.

Millette explained to Muhammad he can either have counsel or he can defend himself — it cannot be a team, a decision Benjamin said is at the discretion of Millette because of the timing of Muhammad taking on his own defense.

Millette directed Muhammad’s lawyers to sit away from him at the defense table.

“Mr. Muhammad does appear to be competently defending himself thus far,” Millette said.

Even so, Benjamin said Muhammad is working against a system stacked against him because Virginia does not allow the defense to see the prosecution’s evidence nor know about witnesses beforehand, making it imperative the defense be alert to every line of testimony and piece of evidence.

“I think it’s a horrendous mistake of his and it all but ensures he’ll receive the death penalty,” Benjamin said.

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