- The Washington Times - Tuesday, October 14, 2003

Legal analysts say sniper defendant John Allen Muhammad’s attorneys have likely conceded the question of guilt and are focusing on selecting jurors who won’t sentence their client to death.

“These people were sent to Virginia for one reason and one reason only: to get the death penalty,” said former D.C. homicide detective and criminal defense lawyer Ted Williams. “This case is not about guilt or innocence. This case is being tried to save this man’s life. That’s what the defense team is interested in. They’re hoping for someone who would be opposed to the death penalty.”

Mr. Williams, like other defense attorneys, said evidence tying Mr. Muhammad, 42, to the shooting of Dean Harold Myers in Manassas on Oct. 9, 2002, is circumstantial but overwhelming. And while Mr. Muhammad’s defense team will try to poke holes in the prosecution’s case, they are already planning for the sentencing phase of the trial.

Joseph Bowman, a D.C. lawyer who has defended capital murder cases in Northern Virginia, agreed.

“You can bet that the big focus here is the juror’s attitude toward the death penalty,” he said “A lot of times in these cases, defense attorneys realize there’s going to be a verdict of guilty of capital murder. A lot of what the defense has to do in cases like this is prepare for the sentencing phase.”

Twenty-seven jury candidates must be impaneled. Once those 27 are chosen, each side will have six peremptory challenges, which will leave 12 jurors and three alternates. For a capital murder case in Virginia, a “death-qualified jury” is required. That means jurors must be willing to impose the death penalty, even if they personally oppose it.

“The defense cannot really prevent that from happening. But what they can do is try to seat jurors who are going to remain open-minded,” Mr. Bowman said. “It’s more of an art than a skill.”

Of 123 jury candidates, 53 were excused yesterday for personal or employment reasons.

Earl C. Dudley Jr., a University of Virginia law professor, said the defense team will whittle away at the remaining 70 candidates — 38 white women, 22 white men, five black women, three black men, one Asian women and one Asian man — by asking questions that may reveal their opinions.

“You certainly would want to know whether the person has ever been the victim of crime, whether they’re close to people in law enforcement, how much coverage of the crime they watched in the media. Were they scared for their own lives?” he said.

“I think they’re going to find a lot of people have made up their mind already,” said Stephen Paterson, president of Vinson & Co., a New York- and Los Angeles-based consulting firm that specializes in helping lawyers pick juries. He said the defense team’s top priority should be eliminating jurors who staunchly support the death penalty, and that the case would be won or lost on such efforts.

Stephen Braga, a D.C. criminal defense lawyer, said that even though lawyers are forbidden from directly asking jury candidates about their religion, there are questions designed to reveal whether a juror may be inclined toward mercy and forgiveness.

He said a defense lawyer might ask if a person is a member of any social organizations. The juror might say they belong to a church club.

“Then you know a little something,” he said. “Their main strategy from Day One is to socialize the jurors.”

He said he might also ask jurors if they have any experience with psychiatric conditions or views on psychiatric testimony to see how they might view testimony, but he thought it was unlikely that characteristics, such as age, gender or race, would be a factor in selecting the jury.

“I don’t think so in this case, because unfortunately the snipers’ victims went across the spectrum of those characteristics,” he said.

Mr. Williams agreed that Mr. Muhammad’s race will likely not play a factor in jury selection, but he said that black jurors may be more suited to the defense team’s goals.

“We have found statistically that for the most part African-Americans oppose the death penalty,” he said.

Mr. Braga also said it’s not unheard of in a high-profile case for an overeager jury candidate to give answers he thinks lawyers want to hear.

“That’s a problem for everyone,” Mr. Braga said. “If it’s found out that a juror has misrepresented something, that would be grounds for a new trial,” he said.

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