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“They wasn’t there. I was. I know what happened, and I know what didn’t happen,” said accused-sniper John Allen Muhammad during his opening statement. He was there. That will be the buzz persisting in the background of any defense Muhammad’s lawyers offer the jury. He was there. Muhammad’s defense against charges he killed Dean Myers is back in the hands of his court-appointed attorneys now. With the guilt phase of the capital trial expected to last another five weeks, Muhammad’s two-day stint representing himself was insignificant in terms of length. Yet its impact was huge. The task for Jonathan Shapiro and Peter Greenspun is not so different than it was before Muhammad fired them, but an already difficult task now seems Herculean. The prosecution’s theory of the case is that Muhammad was the criminal mastermind calling the shots, if not doing the shooting, during the series of 16 sniper attacks that killed 10 people and traumatized the D.C. region last fall. Prince William County Commonwealth’s Attorney Paul Ebert charged Muhammad with two capital crimes under Virginia law: murder when the defendant has committed more than one murder in three years, and murder as an act of terrorism. The defense team’s original theory of the case may never be known. When Muhammad opted to be his own attorney, his lawyers “irretrievably lost the ability to make an opening statement, which in a case like this is a critical stage,” says James Clark of Alexandria’s Land, Clark, Carroll, Mendelson & Blair. It’s not necessarily hubris that prompts a defendant to go pro se, but the desperation that can come when the best-case scenario is life in prison. In a case like this one, where there is strong evidence of guilt, sometimes the best defense is one that slowly acknowledges the defendant’s guilt over the course of the trial, says Scott Sundby, a professor at Washington & Lee University School of Law. “Then you don’t have that loss of credibility at the sentencing phase, where after saying, ‘I didn’t do it,’ you say, ‘This is why I did it.’ “ Of course, the lawyers may have been planning an affirmative defense all along. But many defense lawyers say their guess is that Shapiro and Greenspun were focusing on the sentencing phase of the two-part trial, trying to save Muhammad’s life. “They were probably saying, ‘OK, let’s try to save your life.’ And he was saying, ‘I want to fight. If I’m going down, it will be on my terms,’ ” suggests Alexandria solo practitioner Frank Salvato. Alexandria solo practitioner Shapiro and Greenspun, a partner at Fairfax’s Greenspun & Mann, did not respond to requests for comment on the case. If what Sundby calls “pleading guilty slowly” was the defense team’s original strategy, Muhammad’s opening statement decimated it. He was there. The defense team’s current strategy must be revealed step by step as the trial unfolds. There is no way to erase any damage Muhammad did, capital case veterans say. But the prosecution does have some weak spots. And there may be ways to mitigate the damage. Although the attorneys cannot cross-examine anew the witnesses Muhammad cross-examined last week, they may call them as their own witnesses after the prosecution rests. Prosecution witness Sgt. Major Mark Spicer, a British sniper expert, is a likely candidate for recall, for example. During his cross-examination, Muhammad failed to address the key reason the prosecution had him on the stand: that Spicer could tie the shootings to “terror” and cushion the prosecution’s weakest spot, Virginia’s so-called triggerman rule. Spicer testified that shooting different targets in different locations and the use of a sound suppressor creates a terror effect. The term “sniper,” he testified, “is the ability of two men to go out and injure or kill people and to spread terror over a wide area.” Spicer’s statements alone may not be enough to convince the jury that Muhammad’s alleged actions meet Virginia’s definition of terrorism. The statute defines it as a crime committed with “the intent to intimidate or coerce a civilian population or influence the policy, conduct or activities of the government . . . through intimidation or coercion.” But the prosecution’s case has just begun. Prince William County Circuit Court Judge LeRoy Millette Jr. is presiding over the proceedings in Virginia Beach, where the trial was moved because of the extensive publicity that surrounded the sniper shootings in Northern Virginia. Prior to taking the bench in 1990, Millette was an assistant commonwealth attorney in Prince William County. It is the triggerman rule that could be the prosecution’s greatest challenge in the case. It gives the jury a reason to reject the death penalty on both charges, even though, as Muhammad told them during his opening statement, he was there. Except in murder-for-hire cases, Virginia law states that only the triggerman is eligible for the death penalty. The prosecution is expected to argue that even if Muhammad’s protégé and alleged crime partner, Lee Boyd Malvo, shot the bullet that killed Dean Myers, Muhammad is still eligible for the death penalty. Malvo’s death penalty trial is scheduled to begin Nov. 10 in Chesapeake, Va. FAVORABLE PRECEDENT Prosecutors may find enough muscle to win their argument in the Augusta County, Va., case of Thomas Strickler. Strickler and a co-defendant were convicted of murdering Leann Whitlock. Strickler, who was tried first, received a death sentence, despite uncertainty about whether he, his co-defendant, or both, issued the fatal blow to Whitlock’s head. Strickler’s participation in the murder, the jury found, was active enough to make him eligible for the death penalty. The Virginia Supreme Court refused to vacate his death sentence in 1995. He was executed in 1999. Spicer testified last week that within a sniper team, the “observer/spotter” is as important as the “shooter.” In other words, the shooter and the spotter are equally responsible for their victim’s death. Muhammad missed the “spotter” issue entirely. “If there is a gray area, that’s where it will be,” says Sundby. He adds, though, that “it’s definitely stretching how the Strickler case has been applied until now.” As much of a boon the triggerman rule is for the defense, the murder-for-hire exception is a potential hurdle. “The idea behind the triggerman rule is that the most culpable person is the person who pulled the trigger,” Sundby says. “The murder-for-hire statute shows that’s not always true. And, arguably, if Malvo were merely following Muhammad, it would be a situation where the most culpable person was not the person who was pulling the trigger.” The defense team had laid the groundwork to face this challenge before Muhammad fired them. During voir dire, the attorneys focused significantly on jurors’ thoughts about teen-agers’ ability to think and act independently. “That shows us pretty clearly that they’re going to try to show that Malvo did a lot of these things on his own,” says James Broccoletti of Norfolk’s Zoby & Broccoletti. If the defense team can convince the jury that Malvo shot the sniper victims of his own volition, and not under the sway of a Svengali-like Muhammad, it could save Muhammad’s life. To that end, Shapiro and Greenspun may call Malvo to the stand, defense lawyers say. In pretrial hearings, Malvo, who is 18 years old, invoked his Fifth Amendment right to remain silent and avoid self-incrimination. He would most likely do that again at trial, if compelled to appear. Malvo’s silence, though, could help Muhammad. “The jury can’t hold Muhammad’s refusal to testify against [Muhammad], but they certainly can hold it against Malvo,” says a defense attorney. If the jury convicts him, Muhammad’s pro se performance probably will not benefit him at sentencing. He was there. Muhammad may have humanized himself in the eyes of the jury during those two days, says Alexandria lawyer Salvato, but probably not enough. When it’s time for the jury to decide on a sentence, Salvato says, the really pro-death penalty people “will be saying, ‘Did you see him during his opening? He had no remorse.’ “ Of course, Muhammad was pro se for only two days. For the rest of the trial, it will be Shapiro and Greenspun who tell Muhammad’s story to the jury. Muhammad’s “best defense is having Jon and Peter representing him,” says Clark, who has tried cases with both of Muhammad’s lawyers. “It’s been my thought,” he adds, that Shapiro and Greenspun “will make enough of a connection with the jury that they won’t execute him.”

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