Muhammad Faces The Mountain
Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
The John Allen Muhammad sniper trial reminds me of the line used countless times by comedians and hucksters: "Who are you going to believe? Me? Or your own eyes?" The sniper suspect's prosecutors want jurors to believe their own eyes that Muhammad was, at a minimum, an equal partner with Lee Malvo in last fall's heinous shooting spree. Defense attorneys want jurors to believe them that Malvo was not just the triggerman who shot Dean Meyers last Oct. 9 but also the criminal catalyst for any and every sniper shooting.
This dichotomy explains why Malvo's expected appearance at Muhammad's trial this week will be an important part of the trial. Prosecutors say they are bringing Malvo into court in order to have him identified by witnesses who apparently will say that they saw him with Muhammad around the time of the shootings. But prosecutors are no dummies. They know that jurors will take one look at Malvo and immediately compare him with the much-older Muhammad in order to determine for themselves whether it is possible that the baby-faced Malvo could really have been the grizzled Muhammad's leader.
I've seen Malvo in court. He looks like he is 12 or 13 years old, not 18 years old. He looks so young, in fact, that it will be hard for jurors to take a look at him and then believe the defense theory that Malvo was the Lone Ranger of Evil while Muhammad was merely his Tonto. Defense attorneys, of course, have to push this theory because it's about the only way they can spare their client's life if he is convicted. If jurors believe that Muhammad and Malvo were truly a team, truly integral as individuals to the success of the operation, Muhammad is pretty much a dead man walking. So who are you going to believe, prosecutors are going to ask jurors: Muhammad's attorneys or your own eyes?
That's just one of the many quandaries defense lawyers face as the first of many, many sniper trials opens up in Virginia Beach, Va. There is the illogic involved in believing that a young kid could direct a former Army veteran. There is the circumstantial case against Muhammad that presumably will place him at all the wrong places at all the wrong times last fall. There is physical evidence from Muhammad's car, evidence that will be difficult for defense attorneys to explain away. And there is the fact that the shootings stopped once Muhammad and Malvo were apprehended.
Then there is the makeup of the jury. Not surprisingly, given that Virginia Beach is a military town, Muhammad's jury consists of several ex-military types — people who generally tend to follow orders, trust the government, and take a tough view on crime and punishment. In other words, Muhammad's jurors are precisely the sorts of jurors over whom prosecutors drool. Judging the defendant will be a former Navy captain, the wife of a former Navy sailor, a retired member of the Air Force, an electrical engineer who works on Navy ships, and a retired naval officer now working as a civilian for that branch of the military.
And if you think that Muhammad's military experience — he saw duty in the Persian Gulf War — might make jurors more sympathetic to him, think again. It's a lot more likely that this critical mass on the jury will judge him more harshly than the rest. "I'm ex-military and I didn't turn into a sniper," they are likely to say if convinced that Muhammad had anything at all to do with the shootings. Remember, too, that capital juries tend to skew the government's way anyway since, by definition, no juror who is opposed to capital punishment may sit in judgment in a murder trial in which the death penalty is a possibility.
So does Muhammad have anything going for him as the trial opens up? Not really. He is an immensely unpopular defendant charged with a series of widely publicized crimes. His lawyers will challenge the reliability of the physical evidence. They will keep reminding jurors that there is no proof that Muhammad shot anyone, especially the victim in this case. They will recite like a mantra the name of Lee Malvo in the hope that jurors will come to believe that Muhammad simply could not control his younger colleague. And they will begin, from opening statements forward, to try to humanize their client in the hope they can avoid a death penalty if there is a conviction. This isn't a recipe for defense success. It's called merely doing the best they can with very little to work with.
It isn't hyperbole in this case to say that the deck is stacked overwhelmingly against Muhammad before the first witness has been called. Prosecutors know it. The defense knows it. And Prince William County Circuit Judge LeRoy F. Millete Jr. does, too. Come to think of it, his job might be the toughest of all: to ensure that this defendant gets a fair trial when just about everyone in the world figures him to be guilty as charged.
By Andrew Cohen