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Muhammad defends self { October 21 2003 } Original Source Link: (May no longer be active)
http://www.washingtonpost.com/wp-dyn/articles/A56117-2003Oct20.htmlhttp://www.washingtonpost.com/wp-dyn/articles/A56117-2003Oct20.html
A Legal Move That Rarely Helps Defendants
Ignorance of Court Rules Will Impede Muhammad
By Scott Higham
Washington Post Staff Writer
Tuesday, October 21, 2003; Page A01
VIRGINIA BEACH, Oct. 20 -- Sniper suspect John Allen Muhammad's decision to defend himself will severely limit his ability to fend off the prosecution's case and its heavy reliance on circumstantial and scientific evidence, legal experts said Monday.
With only a high school education, no formal legal training and little time to learn the complicated rules of criminal evidence and procedure, which favor the prosecution in Virginia, Muhammad won't necessarily know when to object or why if he chooses to confront the witnesses who take the stand against him.
He won't know how to keep the jury from seeing evidence or hearing testimony if he decides to challenge their admissibility. And for the remainder of what was thought to be a six-week-long trial, Muhammad's every move, mannerism and utterance will be scrutinized by the jurors.
For the most part Monday, Muhammad was calm and reserved, even on cross-examination. He objected two or three times, and at one point he was given some consideration by the judge. In questioning a prosecution witness who testified that she saw him near a shooting scene, he asked whether she actually saw him shoot anyone. She replied no.
In the end, though, defendants who serve as their own lawyers -- a list that includes Ted Bundy, Colin Ferguson, Jack Kevorkian and Zacarias Moussaoui -- rarely benefit, the experts said. They could not recall a case in which a murder defendant who chose to represent himself won an acquittal. In one of the more recent national cases, Ferguson, who was charged in a shooting rampage on a Long Island Rail Road commuter train in 1993, was found guilty and received the maximum penalty of life in prison.
"It will add more pain to every part of the trial," said Rod Leffler, a prosecutor-turned-defense attorney who practices in Fairfax County. "I feel sorry for every lawyer in that courtroom, including the one wearing the robe on the bench."
Prince William County Circuit Court Judge LeRoy F. Millette Jr. did not have much choice when Muhammad asked to serve as his own counsel, several experts said. In 1975, the U.S. Supreme Court ruled in Faretta v. California that defendants have the right to represent themselves if they are considered competent to stand trial. Muhammad waited until the last minute to make his request. Millette could have denied the motion, telling Muhammad that the trial had begun. But legal experts said that ruling could have been overturned on appeal and the trial would have to start over.
For more than a year, Muhammad's court-appointed attorneys, Peter D. Greenspun and Jonathan Shapiro, have been filing scores of pretrial motions, trying to preserve the judicial record for a possible appeal on a number of legal fronts and preparing for their opening statement. Now, Greenspun and Shapiro will sit at the defense table as standby counsel, ready to give Muhammad advice if he requests it.
But they can no longer openly participate in the public trial. In fact, Millette rebuked Shapiro twice when he tried to get involved. Muhammad could later ask that his case be handed back to his lawyers, or the judge could reappoint the attorneys if he determines that Muhammad is acting inappropriately in court. For now, however, Muhammad is on his own, and legal experts said anything can happen.
Some said the trial will take longer because Muhammad will stumble through the complexities of the case. Others said it could end quickly, particularly if Muhammad decides not to vigorously cross-examine prosecution witnesses. Many lawyers who are following the case said they once believed that Muhammad's best defense was Greenspun and Shapiro's series of skillful cross-examinations of witnesses.
Not only has Muhammad lost that advantage, he has also lost the ability to identify and exploit weaknesses in the prosecution's case and recognize and take advantage of mistakes along the way.
"He will, in all likelihood, fail to identify reversible error, and he will, in all likelihood, fail to develop reversible error," said John K. Zwerling, a criminal defense attorney in Alexandria. "He's not going to know what to look for, and he's not going to know how to lay traps for the prosecution."
Muhammad lost something else.
"The strongest chance he had of avoiding the death penalty was having the jury develop a good impression of his attorneys and develop a sense of fondness for them," Zwerling said. "To spurn them was just a terrible decision."
Much of the prosecution's case relies on scientific evidence -- DNA, fingerprints, ballistics. To introduce that evidence, prosecutors will be calling crime-scene technicians, lab experts and others with years of training in their fields. Defense attorneys usually spend months preparing to cross-examine these witnesses and sometimes bring in experts of their own to help them prepare. Instead, Muhammad has put himself in the position of being an expert, attempting to find holes and inconsistencies in the testimony with little expertise, although he did undergo weapons training while he was in the military.
Defending himself will be next to impossible, legal experts said.
"He's not familiar with procedure. He's not familiar with the law. He's not familiar with the rules of evidence," said Blair D. Howard, a criminal defense attorney in Warrenton. "This is a capital murder case and everything has to be done meticulously. He has taken on a Herculean task."
A decade ago, Ferguson took on a similar task. Charged with killing six people on a commuter train, he told the judge, "I can prove my innocence, and I feel I can be acquitted." His defense attorneys didn't stop him. In fact, they hoped that his request would support their contention that Ferguson was insane and unfit to stand trial. The judge granted Ferguson's request.
One of Ferguson's former defense attorneys said Monday that he was not surprised Muhammad made the same request.
"He's exactly the prototype of the grandiose defendant who wants to represent himself," said Ronald L. Kuby, a defense attorney based in New York City. Unlike in other cases, Kuby said, Muhammad's decision will lead to few courtroom theatrics because much of the case against him is circumstantial and highly technical.
Edward B. MacMahon Jr. is a defense attorney who has been serving as standby counsel to Moussaoui, who was charged as a conspirator in the Sept. 11, 2001, terrorist attacks. The judge in that case permitted Moussaoui to represent himself. MacMahon said that all eyes in the courtroom will be on Muhammad, and the defendant might find himself in the middle of some awkward situations.
"He will become such a focus of the trial, and jurors will be paying close attention," MacMahon said. "If a witness testifies that they saw him, what's he going to say, 'It wasn't me'?"
Staff writers Carol Morello and Sari Horwitz contributed to this report.
© 2003 The Washington Post Company
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