- The Washington Times - Monday, December 1, 2003

CHESAPEAKE, Va. — Convicted sniper John Allen Muhammad invoked his Fifth Amendment right not to testify yesterday at the capital-murder trial of Lee Boyd Malvo, but jurors still heard Muhammad’s voice on an audio recording.

Mr. Malvo’s attorneys wanted Muhammad to testify to bolster their case that he had intimidated Mr. Malvo into committing the sniper killings.

Over the objection of prosecutors, jurors listened to the tape of a September 2001 hearing in which Muhammad lost custody of his three children. The defense has said the loss was the impetus for the sniper rampage last year and changed Muhammad from a fatherly mentor into the maniacal leader of a “cult of two.”

Since they began their case last week, defense attorneys have tried to convince the jury that Mr. Malvo is not guilty by reason of insanity. They say Mr. Malvo, 18, was indoctrinated into Muhammad’s “extreme brand of Islam” and brainwashed into participating in the sniper attacks, including a three-week spree in October last year that left 10 persons dead and three wounded in the Washington area.

The defense contends that Muhammad orchestrated the attacks to eventually conceal the murder of his ex-wife and enable him to take custody of his children.

In the recording, Muhammad reacts in apparent disbelief when told that while he had been hiding with his children in Antigua for more than a year the court had granted his wife a divorce and given her sole custody of the children. He also had lost visitation rights.

“Are you telling me the reason I will not be able to keep my children is because I don’t have the proper paperwork?” Muhammad asked the judge.

Muhammad sounded despondent, but his brief comments seemed to lack the emotional effect promised by the defense.

Mr. Malvo’s lawyers said they still wanted Muhammad, 42, to appear at the trial despite his refusal to testify to reveal the contrast between his imposing physique and their scrawny, teenage client.

However, Fairfax County Circuit Judge Jane Marum Roush discouraged the defense from bringing Muhammad into court, saying that transporting prisoners “willy-nilly” around the state posed safety concerns.

Craig S. Cooley, a lead attorney on the Malvo defense team, said Muhammad’s absence would not hurt their case.

“It opens some doors actually on some other stuff,” he said without elaborating.

The defense is not expected to pursue a court appearance by Muhammad until next week, if at all.

Fairfax County Commonwealth’s Attorney Robert F. Horan Jr., the prosecutor in the trial, said bringing Muhammad into court would be “kind of dumb.”

“Why bring him here if he is going to take the Fifth Amendment?” he said. “Everyone knows he is going to take the Fifth. He’s got an absolute right to it. He’s got charges pending in a half-dozen jurisdictions.”

Virginia law does not compel a witness to appear in court to invoke the Fifth Amendment right against self-incrimination. The letter to Mr. Malvo’s defense team from Muhammad’s lawyers stating their decision was enough to keep Muhammad off the witness stand.

Last week, a Virginia Beach jury recommended the death penalty for Muhammad after convicting him on two counts of capital murder for the Oct. 9, 2002, slaying of Dean Harold Meyers, 53, at a gas station in Manassas. One count of capital murder was under Virginia’s new antiterrorism law and the other was under a serial-killer law. He also was convicted of conspiracy and of using a firearm in the commission of a felony.

Mr. Malvo faces the death penalty on identical murder charges in the Oct. 14, 2002, fatal shooting of Linda Franklin, 47, in the parking lot of a Home Depot store in Falls Church. He also is charged with the same gun crime as Muhammad but not with conspiracy.

Neither jury was sequestered, but the Malvo jurors must contend with news coverage of the guilty verdict and death sentence recommendation, which could taint their deliberations.

Judge Roush has told the jurors to avoid news coverage of both trials, and she regularly asks them whether they have seen news reports. After the Muhammad verdict, a couple of jurors admitted learning of the outcome but said it would not influence their deliberations. After the death penalty recommendation, the jurors said they had not learned of it.

As in the Muhammad trial, prosecutors have linked Mr. Malvo to other sniper attacks to prove the capital-murder charges. The cases differ in that prosecutors in the Malvo trial have audio recordings of the defendant confessing to as many as eight killings, often laughing as he describes the assassination-style slayings.

The cases also differ in that Mr. Malvo’s attorneys have mounted an aggressive insanity defense, while Muhammad’s lawyers were hamstrung by an uncooperative client and offered only a couple of days of defense testimony.

Yesterday, the defense continued to build the insanity case with testimony from people who knew Muhammad and Mr. Malvo in Antigua.

Jerome Martin, who owns a radio and television repair shop in Antigua, described how he met Muhammad and Mr. Malvo and thought they were father and son. He described Muhammad as a model father, though he said there was something sinister in the man’s military-style of parenting.

“He was a very caring person,” Mr. Martin said. “He was attentive with the kids. They were very special to him. … [But] they were very tense in his presence.”

The jury also heard from Muhammad’s ex-wife, Mildred D. Muhammad. She told of how Muhammad had stolen the children when they were splitting up, fleeing with them to Antigua from October 1999 until May 2001.

She also testified about Muhammad’s strict discipline of his children and his dominance over her.

“He would stare at you and let you know what that stare meant, so the next time he would not have to say anything to you and you would carry [his orders] out,” Mrs. Muhammad said.

Mr. Horan kept the jury from hearing Mrs. Muhammad testify that her ex-husband had threatened her life during the custody battle. Mr. Horan objected, saying that her testimony about Muhammad’s statements amounted to hearsay, and Judge Roush agreed.

Mr. Horan has succeeded in keeping from the jury most testimony about statements by Mr. Malvo and Muhammad. He also has kept out numerous defense exhibits, such as photographs of Mr. Malvo as a boy or adolescent in Jamaica and Antigua.

Mr. Horan’s has objected consistently that the defense is presenting “irrelevant” testimony or evidence. However, his objection to the audio recording played yesterday was his most impassioned attack on the defense’s insanity case.

“It is absolutely a red herring in this case,” he told the judge in the jury’s presence. “Thousands and thousands of people lose their children in divorce court every year, and they don’t go out and kill a dozen people,” Mr. Horan said.

The judge overruled the objection.

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