The Center for an Informed America

NEWSLETTER #45 
November 18, 2003
The DC Sniper Trial, Part I

Imagine, if you will, that you are on trial, in the state of Virginia, facing charges of having committed a specific, single act of homicide. And imagine that prosecutors repeatedly call witnesses to the stand to obtain testimony about other murders committed in other states by another perpetrator -- and then they declare you responsible for those crimes. And imagine that you have no idea what is coming next, because owing to an alleged peculiarity of Virginia law, the state is not bound by any of those newfangled disclosure rules; they get to keep their case under wraps. So you don't know from day to day if you will be defending yourself against charges of, say, committing a robbery/homicide in Louisiana, or charges of committing a sniper killing in Washington, D.C.. The charges are subject to change at any moment, sometimes several times a day. Imagine also that on the very week that your non-sequestered jury is seated, a movie is aired on cable television that portrays you as the perpetrator of more than a dozen brutal murders in seven states. And imagine that police are freely violating a court order prohibiting them from discussing evidence with the media. And, finally, imagine that that same media, without exception, has declared the state's case against you to be overwhelming, when a thoughtful examination reveals that the state actually has no case at all.

Would you find any of that just a bit odd? A little troubling, perhaps? Would you find yourself wondering what sort of Kafkaesque nightmare you had awakened to? Would you find yourself pondering the inevitable question: "Who the hell needs 'secret military tribunals' when a high-profile defendant can be railroaded in broad daylight in a public trial?"

The following question needs to be asked, although no one seems willing to ask it: could the trial of alleged 'DC Sniper' John Allen Muhammad possibly be any more of a farce?

There was never any doubt, of course, that any trial would necessarily be an entirely fraudulent affair, since it has been obvious for quite some time that Muhammad and sidekick Lee Boyd Malvo are likely little more than patsies set up to take the fall for what was, by all indications, a government-run covert operation.
(See Newsletter #20, recently updated and re-posted at: http://davesweb.cnchost.com/nwsltr20.html)

But it is still a bit of a surprise, I suppose, that the trial is such an obvious farce.

For those who haven't been following the legal shenanigans, Muhammad, while publicly accused of complicity in as many as sixteen murders in at least seven different states, has been charged with, and is currently standing trial for, exactly one count of first-degree murder. Just one.

And why, you may wonder, has he not been charged with any of the other homicides? For the rather obvious reason that the state has no case. In fact, prosecutors don't even have a case to support the one murder charge that Muhammad is facing. So they have decided to pursue a rather creative legal strategy: they have taken the nearly nonexistent evidence that they have managed to gather/manufacture to support the single murder charge, and they have combined that with dubious bits and pieces of evidence that allegedly link the defendant to a dozen other uncharged murders, and then they have topped the whole thing off with a thick coating of gratuitously graphic, emotionally-charged testimony.

And in case focusing the trial on crimes other than the one that Muhammad is actually charged with is not enough of a judicial outrage, the state has gone one surreal step further: on multiple occasions, prosecutors have subpoenaed Muhammad's alleged accomplice, Lee Boyd Malvo, to appear in court so that he can be identified by witnesses to crimes that neither Muhammad nor Malvo have been charged with.

And these witnesses were not, mind you, called to the stand during Muhammad's trial so that they could identify both Muhammad and Malvo. No, they were called to identify Malvo alone -- to implicate him in crimes committed in Maryland, Alabama and Louisiana -- crimes that appear to have been committed by a single perpetrator. And that perpetrator was not the man sitting stoically at the defense table.

The admission of prejudicial evidence completely unrelated to the homicide that Muhammad is actually charged with has been justified by the media's 'legal analysts' on the basis of another alleged peculiarity of Virginia law that allows prosecutors to pursue a death sentence for multiple murders committed over a three year period, but not for a single act of murder. In order then for the state to seek a death sentence, according to an AP report, "prosecutors will have to prove Muhammad's involvement in the Meyers killing and at least one other fatal shooting."

So even though the defendant is charged with only one murder, the state needs to show that he committed at least two. It is perfectly okay then, so the dialogue goes, for prosecutors to enter evidence completely unrelated to the actual murder charge. Because it is, you see, a death penalty case.

In fact, prosecutors are pursuing two capital charges. The other charge is based on an openly fascistic, post-September 11 'anti-terrorism' law that allows the state to pursue a death sentence if the defendant's crimes were intended to "influence the government or to intimidate the civilian population," according to another AP report. The new law has never been prosecuted. Muhammad is a test case.

Now I will readily admit that I am not a lawyer, and I have not really spent a great deal of time studying Virginia law, but it seems to me that if the state wants to execute someone for being a multiple murderer, then the state's burden should be, at the very least, to actually convict that person of committing at least two specific murders. It just seems like the right thing to do -- because in a death penalty case, you generally want to keep the bar set fairly high.

The state claims that there are as many as sixteen separate murder counts that Muhammad could be charged with. Prosecutors need prove him guilty of just two of those crimes to achieve their goal. Wouldn't then the reasonable, and legal, approach be for prosecutors to pick out the two homicide counts for which they can build the strongest cases and then bring Muhammad to trial on those two murder charges? And isn't it fairly obvious to anyone with a rudimentary knowledge of the American criminal justice system that if it is a specific penalty that prosecutors wish to pursue, then the proper time to do that would be during the penalty phase of the trial? Isn't it, as a general rule, a good idea to actually convict someone before pursuing a penalty?

Is it not the burden of the state, even in Virginia, to prove the defendant guilty of the specific crime for which he has been charged? And if the state succeeds in that initial goal, then isn't it during the penalty phase that follows, and only then, that evidence of other crimes should be allowed into evidence in support of the prosecution's request for a sentence of death?

As I noted previously, however, the state of Virginia has a problem: it cannot put together a prosecutable case on any of the individual murder charges. Not one. Nevertheless, the state really, really wants to execute John Allen Muhammad. And so prosecutors are basically saying to the jury: "Look, folks, we're claiming that this guy committed a whole string of cold-blooded murders, but we've only charged him with one, and we can't really even prove that one, so we're just going to throw out everything we have and let each of you pick whichever two murders you like best so that we can get on with executing this guy, who everyone already knows is the DC Sniper. And please remember that, whatever else you do, don't anyone think about watching DC Sniper: 23 Days of Fear, premiering this Friday night on the USA network at 9:00 PM Eastern time and featuring a stirring performance by Charles S. Dutton as Virginia's very own Chief Charles Moose."

It is important to fully appreciate the mockery of justice currently on display in a public courtroom in Virginia, because if it can happen to a suspect with the name recognition of John Allen Muhammad, then it can happen to anyone. Let's review then some of the highlights of Muhammad's trial.

The first witness called by the state was Mark Spicer, identified as a sergeant major in the British army with considerable expertise as a sniper. Spicer's job as a witness was to sell to the jury the dubious proposition that professionally trained snipers always work in two-man teams. The intent was to present Muhammad and Malvo as an inseparable, two-headed beast. Any subsequent evidence implicating Malvo, therefore, would also necessarily implicate Muhammad -- even when it didn't appear to.

Muhammad, who briefly served as his own attorney - after demanding just prior to opening statements that he be allowed to exercise that right, much to the consternation of the judge, the prosecutors, the media, and Muhammad's own defense attorneys, Peter Greenspun and Jonathan Shapiro - lodged two perfectly reasonable objections. He first objected on the grounds that he had not been given notice of Spicer's testimony. Prosecutor Paul Ebert responded that he was not, it being Virginia and all, required to provide such notice. Judge LeRoy F. Millette, Jr. quickly agreed. Muhammad next objected on the grounds that Spicer's testimony was not relevant, unless the witness was prepared to show that Muhammad had received the type of training that Spicer was describing. Again, the objection was overruled.

Prosecutors did not, needless to say, offer any evidence that Muhammad had received such training -- nor did they offer any explanation for why they had to journey all the way to the UK to find a witness who could establish a key element of their case.

Prosecutors then presented their evidence, such as it was, in support of the charge that Muhammad shot and killed Dean Harold Meyers outside a Prince William County gas station on October 9, 2002. Police officer Steven Bailey testified that he stopped Muhammad and spoke briefly with him as the defendant was attempting to exit a restaurant parking lot from which police claim the fatal shot was fired. Bailey said that this encounter occurred a half-hour after Meyers had been killed.

You don't say? So the master sniper picked off a victim and then sat there - in his Snipermobile, cradling his scope-equipped sniper rifle, and checking his Global Positioning System and notebook computer - for a full 30 minutes, while he waited for a massive police response? While he waited for a checkpoint to be established at the exit to the very parking lot that he was sitting in, in his Snipermobile? And then he casually drove away through a phalanx of officers, pausing briefly to chat with officer Bailey? I never would have guessed that.

Bailey informed the jury that Muhammad had lied to him that day, claiming that police had directed him into the parking lot. He had accepted that explanation, Bailey testified, and regrettably waved the Snipermobile through -- although you would think that Bailey would have been aware that police were actually barring entry to the lot, not steering cars into it.

Jason Salazar offered an eyewitness account of the shooting. Actually, Salazar offered more of an earwitness account. As prosecutor James Willet acknowledged in his opening statement, the state had "no eyewitness testimony to any of these shootings." Willet was quick to add that that only proved "how clever [Muhammad] is."

Salazar testified that he heard a shot and subsequently saw Meyers slumped in a pool of blood. He didn't see where the shot came from and he had no idea who had fired it; he only saw the bloody aftermath. Salazar's testimony was apparently intended to introduce jurors to the brutality, and the suddenness, of death by gunshot. For the next three weeks, jurors will be bombarded with graphic images depicting the damage that a .223-caliber assault rifle can do to the human body. The images will be designed to shock and disgust, and they will prove quite effective.

No one in the courtroom will mention that, even as jurors and spectators are grimacing at the grisly images, that very same .223-caliber ammunition is ripping apart the bodies of Iraqi men, women, and children. No one will mention that, thousands of miles away, the mayhem depicted in the prosecution's photographic exhibits is an everyday occurrence. And no one will mention that during the three weeks that prosecutors spend presenting their parade of bloody exhibits, the shredded remains of dozens of 'coalition' troops will be shipped home in body bags. Images of that carnage will not be displayed, and so there will be little outrage, and no one will be held accountable. But that, I guess, is another story entirely.

Larry Meyers, a brother of the victim, was called to the stand to eulogize his slain sibling. After doing so, he was shown a photograph of his brother and asked by Ebert: "Does this represent your brother in life?" He was then shown a gruesome crime scene photo and asked: "Does this represent your brother in death?" Larry Meyers had not witnessed his brother's death. His testimony proved only that the prosecution team was perfectly willing to shamelessly exploit the bereaved relatives of victims to inflame the passions of the jury.

Linda Thompson, identified as a bank manager, testified that she saw both Muhammad and Malvo, and their Snipermobile, outside her work not long before Meyers was shot nearby. If her identification of Muhammad was accurate, then her testimony placed him, along with thousands of other potential suspects, in the vicinity of the crime within hours of the time that it was committed.

Having established that, and nothing more, prosecutors then moved on to other, uncharged, crimes. A Clinton, Maryland restaurant owner named Paul LaRuffa took the stand to describe being shot and robbed outside his place of business on September 5, 2002. He did not see who had shot him. Asked directly by Muhammad if he could identify the shooter in the courtroom, he answered "no."

On the third day, the trial took another unexpected turn: after competently representing himself for two days, Muhammad reportedly asked, during a bench conference, that his attorneys be reinstated. An Associated Press account noted that Muhammad's "face [wa]s badly swollen from a chronic toothache" that day in court. The report did not mention why, if the defendant was indeed suffering with a chronic toothache, he had not received treatment for it. The Baltimore Sun reported that Muhammad's decision came "thanks to an abscessed tooth and a little prodding by Judge LeRoy F. Millette, Jr." The trial unexpectedly shut down the next day due to a purported power outage that apparently affected only the courthouse.

Witness Muhammad Rashid took the stand to describe being shot on September 15, 2002 as he locked up the liquor store where he worked in Brandywine, Maryland. Malvo was brought involuntarily to the courtroom by prosecutors so that he could be identified by the witness. The man on trial was not implicated in the uncharged crime, which did not involve the use of the Bushmaster assault rifle; both Rashid and LaRuffa were shot with a .22-caliber weapon.

Witness Kellie Adams provided an account of an attack upon her and a co-worker, Claudine Parker, in Montgomery, Alabama that occurred on September 21, just six days after the attack in Brandywine, Maryland. Adams did not see her assailant, but she offered harrowing accounts of her co-worker's death and her own disabling injuries.

Alabama police officer James Graboys identified Malvo, who was again brought involuntarily into the courtroom, as the assailant that he had chased in his police cruiser. He claimed that he had gotten a "very good glimpse" of the attacker, from 10 to 15 feet away. Despite getting that close to the suspect, the officer failed to apprehend him (or shoot him, as might be expected in Alabama when an armed black suspect is seen fleeing a murder scene), as did another officer who testified that he arrived on the scene in time to see a young suspect looking through a purse and then fleeing, with gun in hand.

Another witness testified that she found a .22-caliber handgun a month after the shooting near where Graboys had chased the suspect. No witnesses recalled seeing any gun other than the handgun wielded by the fleeing suspect. And no one saw any other assailants. One would assume then that the two victims were shot with the handgun carried by the lone fleeing suspect.

Medical examiner Emily Ward, however, had a different story to tell. She claimed that the actual murder weapon was not the handgun that witnesses recalled seeing, but an unseen high-powered rifle -- a rifle wielded by, presumably, an unseen John Allen Muhammad. And that wasn't the only strange twist to this particular crime: although the .22-caliber handgun belatedly recovered from the scene played no role in the crime, it turned out to be, believe it or not, the gun that had allegedly been used to shoot both Paul LaRuffa and Muhammad Rashid!

So what we have here is what initially appeared to be a run-of-the-mill, botched liquor store robbery (the two women were shot while locking up the store), committed by a single handgun-wielding suspect who evaded capture by the police, leaving the crime unsolved ... until a month later, when a bizarre phone call inexplicably led to sniper case investigators descending on the Alabama crime scene and suddenly identifying Muhammad and Malvo as the sniper suspects. And at that same time, strangely enough, someone happened to stumble upon a previously undiscovered handgun that connected the unsolved crime in Alabama to two unsolved crimes in Maryland.

Just six days before the shooting in Alabama, Malvo had allegedly used the .22-caliber handgun in Maryland to shoot and rob a victim as that victim closed a liquor store. But in Alabama, although the same assailant, carrying the same gun, was allegedly seen robbing two victims who had just been shot as they closed a liquor store, he wasn't the one who actually shot them. But he was the one who carelessly dropped a .22-caliber handgun, cleverly doing so without leaving any fingerprints on it, even though he had been seen holding it. He wasn't seen, on the other hand, holding a weapons catalogue, but that isn't surprising given that a catalogue isn't the sort of thing that someone would usually bring with them to commit a robbery/homicide. Nevertheless, sniper investigators claim that they recovered from the scene, belatedly of course, a gun catalogue bearing the fingerprints of Lee Malvo.

It is interesting to note that the state's fingerprint evidence was limited to prints lifted from a few easily transportable and (with the exception of the rifle) innocuous personal items. The evidence was incriminating, in other words, only because of where the items were allegedly found.

In addition to the weapons catalogue allegedly recovered in Montgomery, prosecutors introduced into evidence a bag of Cinnaraisins that Malvo had allegedly left behind, complete with fingerprints, at one crime scene. And near the scene of the Meyers shooting, police purportedly recovered a Baltimore-area map bearing both Muhammad's and Malvo's fingerprints.

That map was the only item entered into evidence by the state that bore the defendant's fingerprints. It should go without saying that it would not be at all unusual to find a map of the local area in the vehicle of a driver who was from out of state. It also would not be unusual to find snack food wrappers and maybe a magazine or a catalogue. So if investigators had recovered such items from the Snipermobile, they would have had no real value as evidence. But if those same items somehow turn up near shooting scenes ... well, then suddenly the state has a case.

But here we are really getting ahead of ourselves. The state's physical evidence comes later. For now, we return to the witnesses.

Moving on to another uncharged homicide, the state next called witness Tina Leonard, who claimed that she saw Malvo two days after the Alabama shooting -- standing over the body of slain beauty store manager Hong Im Ballenger in Baton Rouge, Louisiana. Another witness also placed Malvo at the scene. Church Deacon Henry Goins testified that Muhammad and Malvo came to his church the night of the shooting. Michael Cramer, a pathologist, offered graphic testimony and displayed grisly autopsy photos.

The Los Angeles Times provided the following summation of the first week of testimony: "The jury has heard from three survivors of the shootings and seen autopsy photos of three victims. Only one witness has placed Muhammad at the scene of a shooting -- Virginia police Officer Stephen I. Bailey."

Only one witness, in other words, offered testimony relevant to establishing Muhammad's guilt for the crime that he is charged with. All the rest was just smoke and mirrors. And the prosecution team was just getting warmed up.

To be continued ...

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