Muhammad 'own worst enemy'

USA Today/November 25, 2003
By Laura Parker

Virginia Beach -- It took jurors less time to decide that John Muhammad should be executed than it did for them to convict him last week of engineering last year's sniper attacks that killed 10 people in the Washington, D.C., area. Such swiftness 5½ hours did not surprise legal analysts who monitored Muhammad's six-week trial.

Jury foreman Jerry Haggerty answers questions in Virginia Beach after jurors recommended execution for John Muhammad. By Steve Helber, AP

"If you are going to get a death sentence, this is the pattern," says Scott Sundby, a law professor at Washington and Lee University in Lexington, Va., and a member of the Capital Jury Project, a national research group that studies why juries favor the death penalty. "Multiple, random victims is a huge factor that influences juries. Plus, a complete lack of perceived remorse also pushes juries strongly toward death."

Muhammad, 42, an unemployed auto mechanic and divorced father of three, showed little emotion during the trial. On Monday, his attorney accused the media of wrongly concluding that Muhammad's stoic demeanor meant that he lacked remorse.

Nevertheless, the jury reached that conclusion, too. Jury foreman Jerry Haggerty told CNN that he had watched Muhammad closely to try to discern his mood. "The lack of emotion, his failure to even acknowledge what he had done, played into" the decision to recommend that Muhammad be executed, Haggerty said.

For Muhammad, a Gulf War veteran, the reluctance to show vulnerability in the face of overwhelming evidence - or to explain the slayings - made a difficult defense even more so. It also blocked his attorneys from pursuing several arguments during his trial, and likely during the appeals-court review that death sentences receive.

Muhammad's attorneys had hoped to present testimony about his mental state. But when Muhammad refused to be interviewed by a prosecution psychiatrist, the judge barred any testimony about his mental condition.

That, analysts say, destroyed what was perhaps Muhammad's best chance at avoiding the death penalty. It also eliminated one of his strongest potential issues for appeal.

"He was his own worst enemy," says Steven Benjamin, president-elect of the Virginia Association of Criminal Defense Lawyers. "It's clear that along the way, something happened to John Muhammad. But what? We'll never know."

Death-penalty appeals move quickly in Virginia, where all such sentences are reviewed by the state Supreme Court. The average stay on death row in Virginia is five years, half the U.S. average.

Since the U.S. Supreme Court reinstated the death penalty in 1976, Virginia has executed 89 defendants, second only to Texas, which has executed 310. Virginia's acceptance of the death penalty was a significant factor in U.S. Attorney General John Ashcroft's decision to allow Virginia jurisdictions first crack at trying Muhammad and Lee Malvo, his alleged accomplice.

A frequently used avenue for appeal - a claim that the defendant's lawyers were inadequate - is unlikely in this case. Muhammad's court-appointed attorneys are among the state's best-regarded death penalty lawyers.

Another popular appeal - that prosecutors withheld material that was vital to the defense - rarely succeeds in Virginia, Benjamin says.

Appellate judges reverse about 18% of Virginia's death sentences, compared with 68% nationally, says a 2000 study by capital punishment opponents at Columbia University in New York City.

Muhammad's best hope on appeal, analysts say, stems from two laws:

"The state's new, untested terrorism statute. Passed after the 9/11 terrorist attacks, it carries the death penalty for anyone convicted of murder in the course of a terrorist act. Muhammad was the first person convicted under the law.

Some analysts say prosecutors over-reached in using the law because the sniping attacks appeared to have no political agenda.

But prosecutors say Muhammad's attempts to extort $10 million from authorities in exchange for stopping the killings justified their use of the statute. Now, they must get Virginia's highest court to agree.

" Virginia's "triggerman" rule. The law requires someone who is sentenced to death to have been considered a "principle in the first degree" in carrying out the murder.

Prosecutors offered no evidence that Muhammad actually killed anyone. The fingerprints on the rifle used in the shootings were those of Malvo, who is being tried in Chesapeake, 15 miles from here, for the murder of Linda Franklin.

Still, analysts say Muhammad's attorneys face an uphill struggle to convince Virginia's high court that the circuit court erred in his case.

Sundby says the high court addressed the "triggerman rule" in a 1991 ruling that involved two men who crushed a woman to death with a large stone. The court upheld the death sentence of one of the men.

"The court said ... they were acting in concert together," Sundby says. "Can you apply the same principle to the fact that Muhammad was guiding (Malvo) and driving the car?"

Anne Coughlin, a law professor at the University of Virginia, says she thinks the terrorism statute likewise will withstand any challenge. "This case seems to challenge the boundary of that statute," she says. "It might not be at the core of the terrorism law ... but nevertheless, the statue can apply this far."

The jury's decision on Muhammad's sentence is a recommendation. During a sentencing hearing on Feb. 12, Circuit Judge LeRoy Millette can accept it or reverse the decision and give Muhammad life in prison without the possibility of parole. But that's highly unlikely; Virginia judges rarely reject jury recommendations in such situations.

Muhammad's sentence could wind up helping the defense of Malvo, 18.

Malvo's attorneys watched Muhammad's trial closely because the prosecutors' portrait of Muhammad as the "captain" of a two-man killing team was in line with their claim that Muhammad "brainwashed" his young accomplice into participating in the slayings.

Malvo's jurors have not been sequestered and have been told to avoid media reports about either trial. But analysts say the intense TV and newspaper coverage makes it virtually impossible for the Malvo jury not to have learned about Muhammad's sentence.

"If they should hear about Muhammad, that could push" the jurors toward a life sentence for Malvo if they convict him, Sundby says.

Jurors could think that "a death sentence has been handed down, (Malvo) was a follower, he doesn't need to receive death."

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