- The Washington Times - Thursday, December 4, 2003

A judge’s gag order yesterday ended the months-long public relations effort by attorneys for sniper suspect Lee Boyd Malvo to convince the public — and maybe some jurors — that their client had been brainwashed and manipulated by John Allen Muhammad.

But legal analysts said the defense team likely already has accomplished what it intended.

Fairfax Circuit Court Judge Jane Marum Roush yesterday issued a gag order against Mr. Malvo’s attorneys, directing them to stop talking to reporters and holding daily news conferences outside the courthouse in Chesapeake, Va.

“I am increasingly disturbed by this. I think it’s an attempt to reach the jurors or the jurors’ families,” an angry Judge Roush said. “I hate to do it, I’ve never done it before, but I’m going to issue a gag order. … No more talking to the papers, no more having press conferences.”

The jurors in Mr. Malvo’s capital murder trial are not sequestered, which increases the chances of their acquiring information about the case that has not been presented in court.

The Washington Post yesterday published a letter written by Malvo to Muhammad’s niece months before last year’s sniper rampage. The judge on Tuesday had ruled the letter inadmissible as evidence because Mr. Malvo had elected not to testify, which prevents authentication of the document.

Indignant prosecutors demanded that Judge Roush crack down on the defense’s contacts with reporters. Prosecutors and defense attorney Craig S. Cooley denied having leaked the letter, but defense attorney Michael S. Arif declined to answer the judge’s query about the letter.

“I don’t think the jury’s going to be affected one way or another because they’re not supposed to be listening,” said Christopher J. Collins, a veteran Richmond defense attorney who has worked with Mr. Cooley on about a dozen capital murder cases.

Mr. Collins added that he believes the Malvo attorneys “would certainly never intentionally try to poison the jury pool.”

The trial is nearly 4 weeks old, but defense attorneys have been crafting their message since early last summer. They have told the public their client was so influenced by Muhammad that he could not tell right from wrong when he took part in the 13 sniper shootings that killed 10 and wounded three in the Washington area in October 2002.

Muhammad was convicted last month in the sniper attacks.

“At this point I don’t think [the gag order] is going to make any difference because they’ve gotten their message out,” said Learned Barry, Richmond assistant Commonwealth’s attorney, who has known Mr. Cooley since 1978.

“It’s hard to just be completely in a vacuum if you’re a juror and you’re going home every night,” said Mr. Barry, who has opposed Mr. Cooley in court.

For months, Mr. Cooley and Mr. Arif made themselves accessible to reporters, a stark contrast to Muhammad’s defense attorneys, who said nothing during the trial and made only a brief statement when a jury recommended the death penalty for him last week.

Mr. Cooley, who was appointed in January by Judge Roush to join the defense team assembled by Mr. Arif, has been particularly talkative. He gave out his cell-phone number, returned every phone call and spoke at length with reporters about his client’s defense.

“That’s very un-Cooley-like,” said Mr. Collins, who is handling all of Mr. Cooley’s other work during the Malvo trial. “He doesn’t enjoy being in front of the media.”

In late June, the defense presented their “under the spell” theory. Two months later, Mr. Cooley began to talk about a “transformation” in his 18-year-old client, hinting that the young man was breaking free of the 42-year-old Muhammad’s influence after 10 months of separation.

One month before the trial, on Oct. 10, the attorneys announced they would pursue a defense of not guilty by reason of insanity. Since the trial began Nov. 10, the defense team has addressed a phalanx of reporters and answered questions after proceedings finished for the day.


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