The Judge presiding over the Martha Stewart case ruled in her favor today. At issue was an e-mail she sent to her lawyer, indisputably privileged. But, then she forwarded the e-mail to her daughter. Martha argued forwarding the e-mail did not vitiate its confidentiality and the Judge agreed. She upheld it under the attorney work-product doctrine.

Stewart composed an e-mail for attorney Andrew Nussbaum of Wachtell, Lipton, Rosen & Katz on June 23, 2002, outlining her version of events on the ImClone sale. She forwarded the same e-mail to her daughter, Alexis Stewart, the next day ....Analyzing the work-product doctrine in the context of an "unusual set of facts," Southern District Judge Miriam Goldman Cedarbaum said that "although the e-mail to Stewart's daughter does not realistically risk revealing the thought processes of Stewart's attorneys, I conclude that it is protectible as preparation for litigation."

Here is the transcript of sniper case defendant John Muhammed's opening statement today. The Washington Post has this article on why it's rarely helpful for defendants to represent themselves.

We think Muhammed is making a big mistake. He has excellent court appointed lawyers. He can't know what evidence is objectionable or how to preserve error for appeal.

Tomorrow at 3pm ET, in a Washington Post online chat , we'll be discussing the issue of whether Muhammed's self-representation could make a difference in the death penalty phase of the trial (assuming he's found guilty of the murder).

Self-Representation in a death case....Is Mr. Muhammed crazy or crazy like a fox?

Conventional wisdom tells us that sniper case defendant John Muhammed is crazy to represent himself at trial. The evidence against him reportedly is substantial, and the crime is so horrendous that even the most skilled death penalty lawyers would have a difficult time convincing even one juror to vote for life if he is found guilty.

Is there a flip side to the argument? There are ten women jurors on the case. Women may be more empathetic and compassionate in a death case. A major goal in any death penalty trial is to get the jurors to see your client as a human being, to find something about your client that will touch them in a way that makes them unable to vote to kill him. What better way for this to happen than for the jurors to hear and see Mr. Muhammed every day for weeks? Assuming he keeps his demeanor respectful, and doesn't turn hostile and obstreperous, perhaps one juror will say to themselves and their fellow jurors, "I just can't vote to kill him."

If you're online tomorrow between 3 and 4 ET, please join in.

Perhaps taking a page from the Zacarias Moussaoui playbook, sniper suspect John Muhammed asked for and was granted permission to represent himself at his trial. Opening arguments were delayed a bit this morning while the Judge considered the request. His lawyers will remain on as standby counsel.

Update: Real time reporting of opening arguments is here, provided by reporter Kerry Sipes of the Virginia Pilot.

We're scheduled to do an online chat for the Washington Post tomorrow at 3pm EST, subject to change of course depending on breaking events in the case.

The Washington Post got some great quotes from capital defense lawyers in this article on opening statements in the Sniper case trial that will be heard today.

Death penalty trials are as grueling as it gets for lawyers. The initial statements are the first public glimpse of months of behind-the-scenes preparation, so intense that attorneys often turn their neighbors and relatives into sounding boards, alter their diets and forgo sleep. In the days before openings, some attorneys cut themselves off from the world as they prepare. Others wake up in the middle of the night, their hearts racing.

As a defense attorney, it's like being the producer, director and conductor for an opera that will run one night, and if the critics don't like the show they are going to kill your leading man," said South Carolina lawyer David Bruck, a veteran of high-profile capital cases.

Translation: First impressions count. Opening arguments are the first chance the lawyers have to present their case, using themes and theories they will raise again and again throughout the trial. They are often presented using a story-telling format.

Opening arguments are very important. Studies show that 75% of the time the final result in a trial is the same as the tentative conclusion held at the end of opening statement. Utilizing theme and theory, the opening statement is like a preview of coming attractions. It frames the issues, focuses the case, and tells the story in a powerful way that will make the rest of the case highly persuasive.

Our pal Dog the Bounty Hunter, aka Duane Chapman, responsible for the capture of Andrew Luster in Mexico this summer, is hot on his new case. Dog is tracking a Beaverton, Oregon softball coach named Andrew Garver who allegedly kidnapped and ran off with a 15 year old student in September. Police think the girl went willingly, but say she is too young to give legal consent. Dog says the trail leads to Vancouver, B.C. According to Dog (from the first linked article),

The alleged kidnapper's family retained Chapman for the search and the bounty hunter said he is in touch with them every day. Garver has shown suicidal tendencies in the past and Chapman said it is likely the suspect is carrying a weapon and may try to get himself killed by police.

Chapman said the suspect is emotionally unstable and is a "drugstore junkie." Garver takes up to 18 doses of Sudafed per day, drinks copious amounts of Starbucks coffee, and uses chewing tobacco, he said.

Dog is being more careful this time around about grabbing a suspect in another country:

Chapman said he has three or four people in B.C. working for him and looking for the couple. If Garver is spotted, Chapman said he could travel from Hawaii to B.C. in six to eight hours. Chapman said he won't attempt to restrain Garver on his own and has been working with Canadian officials in his search.

The Dog is a man on a mission. We wish him the best.

Conventional wisdom has it that lawyers for alleged sniper John Muhammed will focus on saving his life rather than trying to convince the jury that he is not guilty.

Opening arguments are set for Monday. We'll be paying close attention as we are scheduled to do a live chat for the Washington Post on the case on Tuesday. More details when we have them.

This strikes us as somewhat odd. The younger of the two sniper suspects, John Lee Malvo, has refused to testify at the trial of his alleged cohort, John Muhammed. So Malvo is being flown to Virginia Beach to be an "exhibit".

Malvo will not be called to testify but will be in the courtroom so that witnesses who say they saw the pair together at a shooting scene may identify them, sources said. Malvo's appearance would allow jurors in Muhammad's trial to see the teenager who authorities allege was under Muhammad's control during the 13 Washington area sniper shootings last year.

Malvo has said in court that he will not testify about anything incriminating, but prosecutors can use him as an "exhibit" against Muhammad by simply subpoenaing him to the courtroom. Prince William Commonwealth's Attorney Paul B. Ebert obtained the subpoena Wednesday, said Michael S. Arif, one of Malvo's attorneys.

In other "sniper" case news, the Judge in the Malvo case has prohibited the use of video testimony, which means defense witnesses from Jamaica and elsewhere will have to travel to Virginia to testify. Malvo's lawyers said this is a setback for the defense. One of the witnesses they wanted to call was Malvo's mother.

It's not just a question of money. On that, we say the state of Virginia better pony up the money to fly these witnesses in. The real problem is that some of the witnesses have been barred from entering the United States.

We also think this throw-away comment by the prosecutor was unnecessary:

"Some of our best witnesses are no longer with us. You don't hear us complain."

Jury selection for Muhammed should be completed tomorrow, with opening statements and testimony beginning Monday.

13 potential jurors have been qualified to sit in the trial of accused Sniper suspect John Muhammed. The Court needs to qualify 27, and then both sides will begin exercising their peremptory challenges. The Virginian-Pilot continues its online reporting from the courthouse. Here's a wrap-up of today's events.

This sounds like very fast jury selection to us, particularly in a death penalty case. The questions focused on juror's attitudes on the death penalty, and whether they felt "victimized" by the sniper attacks. Most jurors said they did not feel victimized as the attacks were 200 miles away.

Testimony is expected to begin Monday in the trial.

The Virginia Pilot is providing virtually real-time coverage of the sniper trial--in blog format. This must be a first, and we think it's great. [link via How Appealing.]

On March 12, 1998, in response to a caller who asked why the Clinton Administration was not fighting illegal drugs with the same effort being used to fight the tobacco industry, conservative talk show host Rush Limbaugh responded with some support of a legalized, regulated drug market (The Rush Limbaugh Radio Show, March 12, 1998):

"[Drug] interdiction doesn't work and the effort to convince people not to do it really doesn't work. In fact, with young people it may even entice them more ...

It seems to me that what is missing in the drug fight is legalization. If we want to go after drugs with the same fervor and intensity with which we go after cigarettes, let's legalize drugs. Legalize the manufacture of drugs. License the Cali Cartel. Make them tax payers and then sue them. Sue them left and right and then get control of the price and generate tax revenue from it. Raise the price sky high and fund all sorts of other wonderful social programs.

Jury selection begins today in trial of sniper suspect John Muhammed.

The trial is taking place in Virginia Beach, 200 miles from the site of the killing of Dean Myers, a 53 year old engineer who was pumping gas at a Sunoco station when he was shot and killed.''

While John Lee Malvo, the younger sniper suspect, apparently is cooperating with his lawyers and planning on using an insanity defense, Muhammed has been much more difficult to get a read on.

The defense team is struggling to overcome not only the government's powerful circumstantial evidence and widespread media coverage, but also Muhammad's taciturn defiance.

It's no suprise that defense costs for the Sniper trial will top $1 Million. The prosecution tab will be far greater.

We disagree with the official who lamented the lack of caps on defense fees. The Constitution guarantees defendants a fair trial, and it is hardly fair to have the awesome and unlimited powers of the Government come down upon you and not be allotted sufficient resources to defend yourself.

One million doesn't even level the playing field, but we recognize its a lot more than Virginia has granted in prior cases, so we won't complain--particularly since defense counsel have said they got almost everything they asked for.

Lawyers for the sniper suspects are working for reduced rates--$125.00 an hour. Their regular law practices are on hold while they do this case. It's a death case. Death is different. And death costs more. If Virginia is upset about the costs, it could drop the death penalty and allow life in prison without the possibility of parole to be the top punishment. That would save hundreds of thousands of dollars, if not millions.

The article makes reference to the Oklahoma bombing trials. The prosecution spent $82 million on the case. McVeigh's defense spent $15 million. We don't see how anyone can complain.

If the defense isn't granted adequate funding for counsel, investigation and experts at trial to test the Government's evidence, then it's not a fair trial and we --as a society--cannot trust in the integrity of any verdict that comes down.