Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
So far, substance over style.
You can't help but pity the prosecutors in the John Allen Muhammad capital murder trial. During a week in which the Commonwealth began to present its ballyhooed circumstantial case against the older sniper suspect, all anyone wanted to talk about were the many courtesies the defendant offered witnesses and jurors during his brief stint as his own lawyer.
Talk about counter-spin. While Virginia was interspersing evidence and emotion, while prosecutors were relentlessly tying Muhammad to Lee Malvo, the younger sniper, and then tying the pair to a string of murder and mayhem, the great debate at the trial in Virginia Beach was over whether Muhammad had helped or hurt his cause by taking the reins of his own defense. Sometimes, though, the most interesting thing that happens during a trial is not nearly the most important thing. This is one of those times.
While Muhammad may have gotten the bulk of Week One's headlines, his foes got in the bulk of their evidence. And although jurors are likely to remember Muhammad's opening statement for the rest of their lives – it's not every day an accused mass murderer looks you in the eye and then speaks politely – they are much more likely to remember Virginia's evidence when they begin to deliberate Muhammad's fate a few weeks from now. So all other things being equal, I suspect that Prince William County Commonwealth's Attorney Paul B. Ebert is a lot happier about where things stand trial-wise today than are Muhammad's two fine defense attorneys, Jonathan Shapiro and Peter Greenspun, now back in the saddle for Week Two and beyond.
Why? Because of how far prosecutors have gone in stitching together the case against Muhammad. From Prince William County police officer Steven Bailey jurors learned that the defendant drove his Chevrolet Caprice out of a parking lot from where authorities believe the shot that killed Dean Harold Meyers was fired. Witness Bailey also told jurors that he found a map in that parking lot; a map that prosecutors say has the suspects' fingerprints on it.
From witness Linda Thompson, jurors learned that Malvo and Muhammad were seen outside her bank an hour or so before Meyers was shot. The bank is near the Sunoco gas station where Meyers had gone to pump gas last October 9.
From a military sharpshooter, jurors learned that there are sound reasons why snipers often work in teams.
Paul LaRuffa, a Maryland tavern owner, told jurors that money and his laptop computer were stolen in September 2002 during a violent assault that prosecutors say was led by Malvo. LaRuffa's computer, jurors later learned, was found in Muhammad's Chevy. Jurors also learned that the bank bags that contained LaRuffa's money were later found with what prosecutors say was Malvo's hair on them. Not incidentally, when Muhammad himself questioned LaRuffa, at least one juror reportedly "rolled her eyes as others looked down." That's not a good sign for the defense.
Nor is it a good sign for the defense that Muhammad Rashid, a liquor-store employee, identified Malvo in court as the person who shot and robbed him last September. Prosecutors say that they can and will link the bullet from the Rashid shooting to shootings more directly relevant to the Muhammad case. Meanwhile, two witnesses from Alabama identified Malvo as an assailant in a September 2002 attack on a liquor store that left one dead and one wounded. Again, prosecutors say they can link that attack to the murder of Meyers and thus to Muhammad. That's because Emily Ward, a medical examiner, told jurors Friday that the woman killed in the Alabama robbery was shot by a high-powered rifle and not the handgun witnesses say Malvo was carrying at the time.
Prosecutors themselves would candidly concede that the evidence so far does not compellingly point to Muhammad's guilt. In fact, in some ways, it's hard to discern exactly who is really on trial in the case; so much of the evidence so far seems to incriminate Malvo more than Muhammad. But cases like this resemble a jigsaw puzzle; disparate pieces begin after a while to come together – or not, as the case may be – to form a coherent whole. And despite Muhammad's best efforts, and the honorable efforts of his attorneys, prosecutors put a great many pieces of the puzzle together in fairly short period of time. What happens to Muhammad from here on in depends entirely upon how many more pieces prosecutors have to fit into place, and what jurors perceive about how well they fit together.
That's not to say it was a rout for Virginia in court this week. Both Muhammad and his defense attorneys were successful on several occasions in reminding jurors that the defendant was not seen firing a weapon at anyone at any time. For example, a witness who saw Meyers lying in a pool of blood told jurors he did not see Muhammad in the area. And Officer Bailey told jurors he did not see Muhammad with a weapon on the night the two men's paths crossed. Apparently there are no eyewitnesses to the Meyers' murder and it's fairly clear that if prosecutors could prove that Muhammad actually shot Meyers we would have heard about it by now. And even if prosecutors convince jurors that Muhammad is guilty and deserves to die, there is still the crapshoot of appeal, where reasonable interpretations of Virginia's new anti-terrorism law and it's triggerman rule may help spare Muhammad from death row if he is convicted.
Week One is done. Muhammad is back where he belongs – mute and at the defense table. His attorneys are back where they belong – on their feet challenging the government's case. And prosecutors never left their place to begin with. Week Two of the first of many sniper trials promises to be a little less dramatic but no less significant.
By Andrew Cohen
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