Every Juror A Victim?

John Lee Malvo headshot, suspect in Washington DC area sniper shootings, photo 2002/11/19
Attorney Andrew Cohen analyzes legal issues for CBSNews.com and CBS News.

If you were caught in bad traffic during one of those police dragnets last fall, do you consider yourself a victim of the D.C.-area sniper spree? What if you were one of those people shopping at the Fairfax County Home Depot along with FBI analyst Linda Franklin last October when she was gunned down in its parking lot? How about if you were one of those countless people who ducked down behind your car to shield yourself from a rifle blast as you filled your gas tank? Or if you were a parent who refused to permit your child to go outside?

These are not ethereal questions that some pale, pointy-headed law professor will mull over in his classroom next fall. They go to the heart of an important issue in the Lee Boyd Malvo sniper trial; an issue that almost certainly will decide whether Malvo gets tried in Fairfax County or somewhere else in Virginia. Malvo's attorneys have asked his trial judge for a change of venue, arguing that since the Commonwealth has charged Malvo with terrorism, "every citizen of Fairfax County is a member of the victim class and would not be a disinterested trier of fact."

The defense may be stretching the argument a bit. Obviously not every terror case precludes the possibility of impartial jurors. But Malvo's prosecutors are wrong to take the argument as lightly as they have. The sniper shootings were materially different from any other crime spree in our nation's history. And so they do create extraordinary problems for Fairfax County Circuit Judge Jane Marum Roush to contemplate as she considers whether Malvo can get a fair trial in her county. In an eye-poppingly short brief, prosecutors Thursday called the defense argument "factually preposterous." I'm not so sure.

It's not preposterous to say that the sniper spree last fall affected in monumental ways millions of people in and around Maryland and Virginia. First, unlike the Oklahoma City bombing or even the terror attacks on New York and the Pentagon, it was a crime that continued for several weeks. So there was no single episode after which people in the area could breathe easier; no one who survived one shooting could feel absolutely safe from a future shooting. Also the randomness of the attacks made them different from other crimes. People were being shot and killed doing any manner of things — routine things — things potential jurors did and do every day.

The sniper spree also generated a police response that materially affected people's lives. Drivers were stuck for hours at roadblocks. Sporting events were cancelled or moved. Talk to people who live in those two states, or in the District of Columbia, and they will almost invariably tell you that they lived in absolute fear while the spree was under way. People paid others to pump gasoline for them in order to avoid being a target at the pumps. People scanned wooded areas near parking lots to see if they could spot a silhouette. Even more than half a year later, people all over the region remember with a cold shudder what it was like to live and work and play with the thought that an unknown, unseen assailant could be aiming at them.

So it seems entirely reasonable to me that most potential jurors eligible to sit in judgment on Malvo would feel a personal link to the case that would preclude them from being objective and unbiased and open-minded during trial. I don't know about you but if I were so scared last fall that I had to pay someone to pump gas for me I would have a hard time not resenting anyone sitting in the defendant's chair. People in New York didn't wake up on Sept. 12, 2001, thinking that they would be victims of the Sept. 11 hijackers. But people in Fairfax County — Malvo's potential jurors — could have awakened every morning after a sniper shooting thinking that they could be next.

In this sense, the defense is correct when it says that there is an enormous class of "victims" of the sniper spree, even if those victims weren't actually shot. But prosecutors are correct when they say that this designation "raises the notion of 'victimhood' to a totally new dimension, a dimension where one is a victim whether he or she knows it or not. It is a proposed dimension that is insulting to those who are actual victims." So if we recognize that there is a unique class of people out there, but if we cannot fairly call them "victims," what do we call them and how should we treat them? How about if we call them too personally involved in the sniper shootings to fairly judge Malvo? And how about if we preclude them from entering the jury box in his case?

The Malvo venue fight also focuses upon the extensive post-arrest, pre-trial publicity the case has generated. Defense attorneys say that the law enforcement community improperly leaked damaging information about Malvo that already has unfairly prejudiced jurors. Prosecutors say that Malvo's attorneys can't just point to a story or series of stories and claim that jurors are tainted; they have to prove it. And the Commonwealth says this cannot be proven under Virginia law and, even if it could be proven, such proof only can come during voir dire when actual jury candidates testify under oath about their perceptions of the case.

If Malvo's trial does get moved, it probably will get moved toward southern Virginia, toward Charlottesville, Richmond or Virginia Beach. And if it does get moved it will increase Malvo's chance for a fair trial, if only marginally. Of course, the best possible scenario venue-wise simply can't and therefore won't happen: Alas, California and Virginia cannot effect a one-for-one trade wherein Malvo would get tried in Modesto and Scott Peterson would get tried in Fairfax County for the murder of his wife Laci. But wouldn't that solve everything?

By Andrew Cohen