Legal theories in test at trials

Muhammad prosecutors watched by Malvo defense

Teams' strategies similar

Claim of conflicting stands by state in separate trials

October 19, 2003|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

As attorneys begin their opening statements in a Virginia Beach, Va., courtroom tomorrow in the capital murder trial of sniper suspect John Allen Muhammad, a key question is how their legal strategies will play out in another courtroom.

Prosecutors of Muhammad and defense attorneys for Lee Boyd Malvo, his alleged teen-age companion, share the same notion: that Muhammad masterminded the shootings.

But, at the same time, Muhammad's defense and Malvo's prosecution blame the youth as the shooter.

The finger-pointing in the two separate murder trials has made for unusual - though unplanned - philosophical similarities.

"This case has made for some strange bedfellows," Craig S. Cooley, one of Malvo's five defense attorneys, said in an interview.

Meanwhile, defense lawyers in both cases have complained that judges in these separate Virginia trials should bar the two sets of prosecutors from espousing different theories of the string of crimes.

And if there was a Malvo-Muhammad alliance, it has been torn apart in preliminary court hearings, as each defense team has downplayed its client's alleged participation and talked up the role of the other defendant.

The twists show how complicated strategies can become in trials of supposed companions - each for a separate killing that took place in a different county - in a series of allegedly intertwined crimes.

With Muhammad's trial starting a month before Malvo's trial is to begin, the teen-ager's lawyers say they will closely watch Prince William County prosecutors build their case against Muhammad.

The prosecutors depict Muhammad, 42, as the "captain" of a "killing team" responsible for a three-week series of shootings last fall in the Washington area - just as Malvo's lawyers depict him as being in control of the teen-ager.

"The commonwealth at Muhammad's trial is putting on our defense. They are relying very heavily on the indoctrination aspect of this case," said Cooley. He added, "We want to see what they are putting on."

That situation is favorable for Malvo, said University of Baltimore law professor Jose F. Anderson, a former supervising attorney for the appellate division of the Maryland Office of the Public Defender who handled death penalty cases.

"Malvo is getting to see a trial run in his case before he has to make any of his critical decisions, with the prosecution's best evidence," he said.

Experts say that Muhammad's lawyers can be expected to contend that Malvo was the shooter so that, if Muhammad is convicted, they can ask jurors to spare the life of the less blameworthy defendant. Peter D. Greenspun will present the defense's opening to the jury.

"What you are going to see is the defense of Muhammad - they will be going through the whole thing pointing out all the evidence saying it was Malvo who did it," said Christopher L. Tritico, who was one of Timothy McVeigh's 14 defense lawyers.

But they will need to go beyond that and beyond making the technical legal objections that later form the groundwork for an appeal, Tritico said.

"What they are going to have to explain is, `How was he [Malvo] doing this in your [Muhammad's] car with you driving him around?'" he said.

"So what the defense has got to do, while they are pointing the finger at Malvo, is show to the jury how are you not a party to this offense, even though you are not pulling the trigger."

Muhammad would face the prospect of execution if convicted of killing Dean H. Meyers while the Gaithersburg engineer pumped gas in Prince William County.

Malvo potentially faces a death sentence, too, if convicted of killing Linda Franklin, an FBI analyst, in a Fairfax County parking lot. Both trials were moved 200 miles away to seek jurors unaffected by the sniper shootings one year ago.

Malvo's trial will be in Chesapeake, next to Virginia Beach.

In Malvo's trial, the defense is mounting an insanity defense. It claims that Malvo, 17 years old when apprehended, was brainwashed by the older man.

That is hardly how Fairfax County prosecutors view the Jamaican-born youth they are preparing to try.

Fairfax County Commonwealth's Attorney Robert F. Horan Jr. has called Malvo a bright and clever youth who bragged gleefully about the shootings. A Fairfax County detective testified that in his statements Malvo took credit for killing both Franklin and Meyers.

Muhammad's defense attorneys have latched onto that.

In pretrial hearings, they have argued that only the triggerman can be put to death. If Malvo admitted that he pulled the trigger, the death penalty should be ruled out for Muhammad, they contended.

But Prince William County Circuit Judge LeRoy F. Millette Jr. said he will rule on that issue after he hears evidence during the trial.

Meanwhile, prosecutors can proceed against Muhammad under their theory that any direct participant - not only the triggerman - is eligible for a death sentence.

Prosecutors say they are not philosophically linked with the defense in either case.

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