Death Penalty Phase Begins for John Muhammad

The death penalty phase is underway in the trial of convicted sniper John Muhammad. Trying to convince jurors to vote for life after a conviction for a heinous crime is always difficult. It is even more so when the defense does not acknowledge committing the crime during the guilt phase. Here's how Muhammad's lawyers plan to proceed:

Jonathan Shapiro, one of Muhammad's attorneys, pleaded for his client's life with a short, somber statement to jurors. Shapiro said that nothing the attorneys say can excuse the crimes, that the defense will explain how Muhammad's life experiences affected him.

Shapiro said evidence will show that Muhammad took the loss of his children "extremely hard" and that he used to live a productive life as a "solid, hard-working guy" who was very attentive to his children. He asked jurors to find something in Muhammad worth saving. "You will put him in a box of one sort or the other," Shapiro said. "One is made of concrete, and one is made of pine."

On one capital count, Muhammad was convicted under Virginia's new terrorism statute. Years of appeals will follow, first in the state and then in the federal courts, over whether this law is unconstitutionally vague and whether it was intended to apply to the kind of crime spree Muhammad and Malvo engaged in. Also, under the terrorism statute, the community at large is the victim. We think that makes everyone in Virginia ineligible to sit on the jury. Another grounds for appeal.

On the other capital count, Muhammad was convicted of killing two or more people during a three year period. The jury wasn't required to specify which people he killed. He was only charged with the killing of one person in Virginia. We expect an appeal over whether the statute can be validly applied to killings for which the defendant has not been previously tried and convicted.

In addition, Virginia law has always required that the death penalty is not available to those who didn't actually pull the trigger. The terrorism statute doesn't have this requirement. The courts will have to decide if the terrorism statute can trump the murder statute. The defense argued (correctly in our view) that the state presented no evidence that Muhammad personally killed anyone.

Another grounds for appeal may be the manner in which Attorney General John Ashcroft decided that Virginia would be given the first shot at Muhammad--rather than Maryland. He forum shopped for the venue most likely to return a death verdict.

Conventional wisdom says that Muhammad will get the death penalty from the jury in short order. We hold out hope that at least one juror will have connected to him as a person during his day of self-representation and be unable to vote for death. The jury must be unanimous on the death penalty--otherwise, he automatically will be sentenced to life in prison. As his lawyers point out, either way he comes out in a box.

Update: Elaine Cassel comments on the appellate issues in the Muhammed case today on Findlaw.

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