- The Washington Times - Sunday, October 19, 2003

VIRGINIA BEACH — The murder trial of sniper suspect John Allen Muhammad will proceed today with the prosecution team scheduled to give an unusually long opening statement that tries to link Mr. Muhammad to evidence in the slaying of Dean Harold Meyers and at least 10 other similar killings.

Prosecutor James A. Willett, Prince William County assistant commonwealth’s attorney, is expected to give a 90-minute statement in the case against Mr. Muhammad, about an hour longer than a typical opening statement in Virginia.

“You want to give the jurors a road map of the evidence,” he said. “You want to do it in a clear way, emphasizing the points you want them to focus on. This one will be longer because there’s so much evidence to discuss, not just at the crime scenes but also forensic and circumstantial.”

The defense team will answer with an opening statement from Fairfax attorney Peter D. Greenspun. Neither Mr. Greenspun nor fellow defense attorney Jonathan Shapiro would comment on their trial strategy. However, they asked jurors during last week’s selection process whether they would consider Mr. Muhammad’s past — including abuse as a child — if they had to choose between giving him the death penalty or life in prison without parole.

But first, the 12 jurors and three alternates must decide whether Mr. Muhammad is guilty of two counts of capital murder for the 13 sniper shootings that killed 10 and wounded three in the Washington area one year ago.

Capital murder trials in Virginia are essentially split into two separate trials.

If jurors rule the defendant is guilty during the first part, called the guilt phase, they enter the penalty phase to decide between a death sentence or life in prison without parole.

Mr. Greenspun is expected to argue most or all of the guilt phase. He is known as an intelligent and precise litigator. If there is a conviction, Mr. Shapiro will argue the penalty phase.

While Mr. Greenspun could attack the prosecution’s case during opening statements, he is likely to present sympathetic factors in Mr. Muhammad’s past.

Mr. Shapiro told one jury candidate during the selection process that such factors would include Mr. Muhammad’s childhood, abuse and neglect, his adulthood, and his failures and successes.

Learned Barry, Richmond deputy commonwealth’s attorney, expects the defense team to present sympathetic or mitigating factors “from the first moment.”

He said Mr. Greenspun is also expected to emphasize to jurors that the prosecution must prove the defendant’s guilt beyond a reasonable doubt and that Mr. Muhammad is entitled to a jury that presumes his innocence.

Mr. Muhammad is on trial for the Oct. 9, 2002, slaying of Mr. Meyers, 53, at a Manassas gas station. He is charged with one count of capital murder under Virginia’s new and untested antiterrorism statute. Prosecutors say the 13 shootings in the Washington area and 10 others in Washington state, Arizona, Alabama and Atlanta were part of a plan to extort $10 million from the federal government.

The second count is for committing more than one murder in less than three years. Mr. Muhammad is also charged with conspiracy and illegal use of a firearm.

The trial of co-defendant Lee Boyd Malvo, 18, is scheduled to begin Nov. 10 in nearby Chesapeake. The trials were moved to southeastern Virginia after a judge agreed with defense lawyers that Northern Virginia residents were too traumatized by the sniper shootings to be unbiased jurors.

Mr. Barry said opening statements are crucial because jurors are fresh and excited.

“They’re pretty much a clean sheet of paper,” he said. “Opening statements really set the tone. A lot of times people remember opening statements a lot more than they remember the evidence you present.”

Though prosecutors have plenty of evidence, they do not have an eyewitness. Therefore, they must rely on circumstantial evidence such as logs showing Mr. Muhammad made calls from pay phones near the crime scenes and fingerprints from a map found near the Manassas shooting.

Other crucial evidence includes the Bushmaster rifle and laptop computer found inside the Chevy Caprice in which Mr. Muhammad and Mr. Malvo were captured outside Frederick, Md., on Oct. 24. Ballistic experts have linked the rifle to the bullets used in the shootings, and the computer has information about the suspects’ travels and reconnaissance.

Some legal analysts say a shorter opening statement with fewer details — including the inventory of evidence — might be a better strategy.

“You can only absorb so much,” said Mr. Barry, who played rugby with Mr. Willett while in law school at the University of Richmond.

Warren Von Schuch, Chesterfield County deputy commonwealth’s attorney, also said 90 minutes was excessive.

“They must have a darn good case,” he said.

Mr. Willett remains committed to the plan.

“I want [the jury] to get a complete picture of what they’re going to see in the next six weeks,” he said.

Washington lawyer Joseph Bowman, who has defended capital cases in Northern Virginia and federal cases in New Jersey, said Mr. Muhammad’s trial seems long to veteran Virginia lawyers only because those in commonwealth courts move so fast.

“Other people around the country … are used to these tomes from lawyers in California and will think it’s pretty short,” Mr. Bowman said. “Willett’s opening statement is really going to be what their evidence will show and not much more. He’ll have some expression and emotion, and he’s going to point to the defendant in some way, but it’s really going to be an itemization of the evidence.”

He also said it would be a mistake for Mr. Greenspun to act “sanctimonious and outraged” about the prosecution’s case.

“It’s important for the defense to have a different attitude during the opening, not to enrage the jury but enlighten the jury,” Mr. Bowman said. “Display the facts and maintain calm. It’s so important for the defense to keep its credibility with the jury.”

Mr. Shapiro will likely keep a low profile during the trial to preserve that credibility for the penalty phase.

“You want someone quieter, capable of talking about remorse and about giving the defendant the mercy he didn’t give others,” Mr. Von Schuch said.


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