Sniper, Laci Cases: By The Book

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

There is no admissible confession. The eyewitness testimony is a little sketchy. The physical evidence is there but by no means compelling. Yet there are many, many victims. If you are a prosecutor facing this reality in a capital murder trial, you do what John Allen Muhammad's prosecutors are doing in his sniper trial. You do what federal prosecutors did to Timothy McVeigh during the first Oklahoma City bombing trial in 1997.

You weave together for jurors emotion and evidence, pacing the presentation like a good director paces a movie. Notice the jurors starting to drift off a little, starting to allow their mind's eye to wander during a long, complicated case? Then trot out a victim, or the family member of a victim, or play a 911 tape. Nothing like tears in the witness box to generate tears and empathy in the jury box. Nothing like emotion to solder together the disparate parts of a case.

Muhammad is in more trouble today than he was one week ago, because his prosecutors have done a masterful job of choreographing their circumstantial case against him. Like their federal counterparts six years ago, they have made a virtue out of a vice. They have used the sheer scope of the sniper shootings against Muhammad, overwhelming jurors with one sad story after another even as they implicitly concede that the defendant did not actually shoot Dean Meyers, the victim whose murder is the focus of the first sniper trial.

For example, on Wednesday, after the youngest sniper victim and his aunt pounded jurors with waves of emotion, prosecutors immediately tried to link Muhammad to that particular crime scene through the introduction of physical evidence. The message to the jury was not subtle: here is the horror the young man went through — and here is our best guess about who had something to do with it. Commonwealth attorneys thus have been able to push jurors into emotionally linking Muhammad to the crimes even as the legal link remains somewhat murky.

There is absolutely nothing illegal or even improper about this sort of pre-planned courtroom tear-jerking. Of course, it creates enormous disadvantages for capital defendants. But those problems are inherent in just about any multiple-murder trial. The sheer volume of victims simply gives prosecutors the option of interweaving their testimony with the testimony of "drier" witnesses — experts and so forth. McVeigh long lamented the momentous emotion that permeated his trial. I'm sure Muhammad isn't crazy about the emotion that is permeating his. But there is nothing he can do about it. It's just another price he has to pay because the government thinks he is a mass murderer.

Chapter Two

If prosecutors are going by the book in the Muhammad case, Scott Peterson's attorneys also are following Scripture in the preliminary hearing in that case. Knowing that a single strand of hair found in Peterson's boat is a vital part of the prosecution's capital murder case, Mark Geragos spent the better part of two days this week savaging the accuracy and reliability of the test results on that hair. Aside from taking some of the pent-up drama out from under the Laci Peterson saga, Geragos made his stand for several legitimate reasons, all of which presage a long, bitter trial sometime next year.

First, and obviously, Geragos went hard at FBI expert Constance L. Fisher because he wants to get that hair excluded as evidence at trial. This isn't likely to happen — and Geragos knows it. The judge is far more likely to permit the hair to come in as evidence along with the raging dispute between the experts over what conclusions ought to be reached about it. Still, good defense attorneys don't get that way by shying away from a fight they know they are likely to lose.

By simply challenging the conclusions Fisher has reached about the hair — she says it "may" have come from Laci — Geragos has planted a few seeds he intends to reap at trial. When it comes to reaching conclusions based upon scientific evidence, the FBI simply isn't what it used to be after all the controversy that surrounded its work during and after the Oklahoma City bombing investigation. Geragos knows this and almost certainly will bring it up at trial to cast doubt upon Fisher's conclusions. Part of the reason he spent all that time knocking heads with Fisher, then, was because he wanted potential Peterson jurors to be aware, if only mildly, that the "hair" evidence isn't nearly as airtight as Stanislaus County prosecutors would have them believe.

Finally, Geragos did what he did for as long as he did it because every capital case requires defense attorneys to challenge every conceivable aspect of the prosecution's case at every procedural stage of it. Lawyers do this because they want to preserve every possible issue for appeal should their client be convicted and sentenced to death. You just never know what is going to be relevant a few years down the road but defense attorneys like Geragos certainly know that their avenues of appeal have slowly but surely been cut off in recent years by judges and legislatures. The more reluctant appellate courts are to hear appeals, the more detailed a record defense attorneys must create even this early on in a case.

By Andrew Cohen