Sniper trial strategies, logistics intertwine

Muhammad could provide answers in Malvo's case

November 16, 2003|By Gail Gibson | Gail Gibson,SUN STAFF

VIRGINIA BEACH, Va. - The intersecting lives of John Allen Muhammad and Lee Boyd Malvo collided again last week. As the older man's trial in last year's sniper attacks was winding down, the younger man's began in a courtroom just 15 miles away. In ways large and small, one very much was a presence at the other.

There were logistical issues. As jurors hearing the case of Muhammad began deliberations Friday morning, they took with them more than 400 pieces of evidence to examine. That put the Malvo trial, where prosecutors will rely on many of the same items in building their case, on hold until at least tomorrow.

But the overlapping timing and geography of the two cases also spotlighted more fundamental issues of strategy and history.

In each man's trial, defense attorneys have sought to focus the jury on the culpability of the defendant not in the room, a move made simpler in some ways by proximity. For observers, the back-to-back trials offer the rare possibility that questions left hanging in the first trial could be swiftly answered at the second - possibly by Muhammad himself, who has been subpoenaed to testify.

Lawyers outside the case said there are signs that although the Muhammad case shaped up to be an exhaustive presentation of what happened during the sniper attacks in the Washington region last fall, Malvo's case could explore why.

"The Muhammad trial, I suspect, when it's over will prove to be a frustrating exercise in that we will be no closer to understanding why and how this happened," said Steven D. Benjamin, a defense lawyer in Richmond, Va. "By contrast, I think we have a very good chance of getting those answers we very much want in the Malvo trial."

The close timing of the two cases leaves open the possibility that some of the answers could come from Muhammad, 42, who has been called to testify by attorneys for the 18-year-old Malvo. The older man could invoke his constitutional right against self-incrimination. But some legal experts say it remains a distinct possibility that Muhammad could choose to testify to help spare the life of the younger man he refers to as his son.

Malvo, who was 17 at the time of last year's attacks, is charged with two counts of capital murder in the fatal shooting of FBI analyst Linda Franklin outside a Home Depot store in Fairfax County, Va., on Oct. 14. Prosecutors are expected to present evidence of a boastful confession to the killing by Malvo, but his attorneys say there is no evidence that Malvo fired the shot to the head that killed Franklin.

They say Malvo was so brainwashed by a domineering Muhammad that he took credit for crimes he did not commit, lying in part to protect a man he called his father.

"Muhammad could be the one guy that could save Malvo's life," said Jonathan Turley, a George Washington University law professor.

"If he decides he has nothing to lose, he could supply a personal account of what happened to this young boy."

Turley described the decision as a personal choice for Muhammad, one that could offer a "single noble act after so much destruction." The decision will probably come after the sentencing phase in Muhammad's trial, if he is convicted. That second portion of the trial would begin immediately after a guilty verdict.

Muhammad is on trial for the fatal shooting of Dean H. Meyers outside a gas station in Manassas, Va., on Oct. 9 last year.

The jury in that case deliberated for about four hours Friday morning before recessing for the weekend. It is expected to resume deliberations tomorrow.

In closing arguments last week, defense attorneys for Muhammad suggested to jurors that they knew little about the relationship between the two men and hinted that descriptions of Malvo as an obedient follower were not fully accurate.

At a courthouse down the road, defense attorneys opening Malvo's case pointed the finger in the other direction.

"John Muhammad changed him. He indoctrinated. He made him his child soldier," Craig S. Cooley, one of Malvo's court-appointed attorneys, said in opening statements.

After Cooley's presentation, though, the trial came to a sudden pause.

Attorneys in Malvo's case agreed to wait until tomorrow to begin presenting evidence in the case because many of the items prosecutors plan to introduce are with the Muhammad jury.

To get around the problem this week, officials have taken photographs of pieces of evidence to introduce as placeholders until the items can be brought to Chesapeake once there is a verdict in Virginia Beach.

How a verdict in Muhammad's trial could affect the jury in Malvo's case is unknown. The judge in Malvo's case, Fairfax County Circuit Judge Jane Marum Roush, warned jurors that even if they learn of the outcome in the Muhammad case, under Virginia law, a co-defendant's verdict is not admissible as evidence.

"It is to play no role in your deliberations of this case," she said.

But defense attorneys acknowledged earlier that it could seep into consideration. Cooley said one possible outcome is that if the jury in Virginia Beach recommends a death sentence for Muhammad, the jury in Malvo's case might feel that "if one death penalty is achieved, that's enough."

Or, he said, Malvo's jury could conclude that if Muhammad "doesn't get a death penalty, then a child shouldn't." But, he added, "You could have the reverse of that."

Sun staff writer Andrea F. Siegel contributed to this article.

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