- The Washington Times - Thursday, November 13, 2003

VIRGINIA BEACH — Defense teams for both sniper suspects have effectively conceded the guilt of their clients and are concentrating instead on trying to save their lives, legal experts said.

But the two defense teams are going about it in different ways.

John Allen Muhammad’s attorneys have tried to poke holes in the prosecution’s case and prepare for appeals that could stretch out over a decade if their client is found guilty today.

Lee Boyd Malvo’s attorneys are trying to save their client’s life right now with a defense they said will last three weeks. Mr. Muhammad’s defense, which began and ended Wednesday, lasted less than two hours.

“I think neither defense team harbors any real hope that a jury is going to find that they’re not culpable,” said Joseph A. Bowman, a D.C. defense lawyer who has handled capital murder cases in Northern Virginia. “The objective here is really just to avoid the death penalty. I think they both settled on this some time ago.”

Mr. Bowman said Mr. Malvo has a chance of avoiding the death penalty.

“What he’s got going for him is that he’s a juvenile,” Mr. Bowman said. “It’s difficult for any jury to impose a death penalty in any case, [but] it’s especially difficult when the defendant is a juvenile.

“This argument that Malvo was manipulated and controlled by Muhammad may get some serious consideration by this jury.”

During the second day of jury selection in the Malvo trial, one potential juror expressed reservations about sentencing the 18-year old defendant to death, even though he indicated he thought the young man was guilty.

“I would not want to give him the death penalty. I would want to give him life in prison, if that’s what it came to,” Juror No. 72 said to defense attorney Michael S. Arif.

Because jurors in capital murder cases must be able to consider the death penalty, Juror No. 72 was excused.

Mr. Muhammad, 42, and Mr. Malvo have been linked to the 13 sniper shootings that killed 10 and wounded three in the Washington area last fall. They also have been linked to nine other shootings in five states.

Both are charged with two counts of capital murder, one under Virginia’s new antiterrorism law and one for murdering two or more people in three years.

Mr. Muhammad is charged in the Oct. 9, 2002, fatal shooting of Dean Harold Meyers, 53, at a Manassas gas station. Mr. Malvo is on trial for the Oct. 14, 2002, slaying of Linda Franklin, 47, at a Falls Church Home Depot.

The Muhammad defense strategy against the prosecution’s mostly circumstantial case is straightforward. Defense attorneys Peter D. Greenspun and Jonathan Shapiro “are going to put their efforts into the sentencing phase,” Mr. Bowman said.

“Muhammad’s guys are going to say, ‘I don’t know if they’ve proved their case, and even if they have, there’s no constitutional basis for this type of charge,’” said Learned Barry, Richmond deputy commonwealth’s attorney.

Mr. Barry said that because Mr. Muhammad is the first defendant to be tried under the antiterrorism law, which was designed to target “evil masterminds” such as Osama bin Laden, his attorneys will have many issues with which they can drag out an appeal.

Prosecutors in the Muhammad case presented 136 witnesses over three weeks and rested their case Monday, saying the circumstantial evidence did not prove the defendant ever fired a shot but that he was responsible for planning and directing the shootings.

Mr. Malvo has pleaded not guilty by reason of insanity. His attorneys are arguing that the elder suspect, an Army veteran and drifter who lost his children in a custody battle, took the younger man under his wing and manipulated him into believing he was part of a race war.

Mr. Muhammad trained Mr. Malvo to shoot during the fall of 2001 and spring of 2002, and then the two set out on their murderous rampage in the fall of 2002, the defense is arguing.

“It’s dangerous because you have to admit to the jury that you committed these acts,” Mr. Bowman said.

“Rather than losing credibility with the jury by saying he didn’t do it, he’s conceding, ‘Yes, he did do it, and here’s why,’” Mr. Barry said. “[Malvo defense attorney Craig S.] Cooley’s saying, ‘You got me, I’m not going to fight you, and I’m going to get credibility right from the beginning.’”

“He obviously feels like he has a good chance,” Mr. Barry said.

Most lawyers familiar with the case “feel like Cooley’s doing the right thing,” Mr. Barry said. “But the crimes are so bad, and there’s so many of them, that I think it would surprise the legal community if [Mr. Malvo] didn’t get the death penalty.”

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