Sniper Fights Death Sentence
Lawyers Argue Muhammad Had Mitigating Factors
Saturday, April 26, 2008; Page B01
Jurors might not have sentenced convicted sniper John Allen Muhammad to death if they had known that he was abused as a child, that he has brain damage and that there were conflicting witness accounts to some of the shootings, Muhammad's appeals lawyers argued in court papers this week.
The lawyers are asking the federal court in Alexandria to overturn the death sentence Muhammad received in Prince William County for killing Dean H. Meyers near Manassas in October 2002, one of 10 sniper slayings in the Washington region that month.
Slayings in Alabama and Louisiana were also linked to Muhammad and Lee Boyd Malvo, but Prince William prosecutors did not share with the defense evidence in those cases that was "the linchpin" to the state's cases in the individual shootings, the court papers said.
Prince William Commonwealth's Attorney Paul B. Ebert said yesterday that if evidence was not turned over to the defense, it was because it was not exculpatory, meaning it did not tend to show Muhammad's innocence. He said the Virginia Supreme Court had already rejected arguments about the evidence of Muhammad's abusive past.
Muhammad and Malvo were arrested in a blue Chevrolet Caprice at a Maryland highway rest stop on Oct. 24, 2002. A .223-caliber Bushmaster rifle was found in the trunk, and ballistics linked the gun to nine of the 10 sniper slayings. In a separate trial in Virginia, Malvo was sentenced to life without parole. In Maryland, Muhammad and Malvo each received six life sentences.
During Muhammad's first trial in Prince William, attorneys Peter D. Greenspun and Jonathan Shapiro were blocked by the court from having a forensic psychologist, Mark D. Cunningham, summarize the lasting impact of a traumatic upbringing, lawyers James G. Connell III and Jonathan P. Sheldon said in their court filing in U.S. District Court.
Greenspun and Shapiro wanted to present testimony that Muhammad's mother died of cancer when he was 3. They also wanted to show that he and his five siblings then lived with their aunts, who whipped them regularly, left them home alone without food and did not give them Christmas or birthday presents. One uncle who also beat the children later went to prison for killing a boy in a juvenile home, the defense found.
The defense lawyers told then-Prince William Circuit Court Judge LeRoy F. Millette Jr., that they wanted to use Cunningham's expert testimony only to put the family's recollections in context for the jury -- to explain Muhammad's lowered "moral culpability" for the slayings.
But Millette ordered Muhammad to submit to an examination by a prosecution expert. When he refused, Millette said the defense could not use any of its experts. The defense argued, in vain, that the prosecution was not entitled to its examination because the testimony was not related to mental health.
Greenspun and Shapiro decided not to call any of Muhammad's siblings to discuss his upbringing, because their testimony "would really just be a bunch of loose ends which wouldn't make a lot of sense" without Cunningham's testimony, Shapiro later argued. So the jury did not hear what the defense considered the core of its "mitigation" case, in which a defendant tries to show a jury why he should not receive the death penalty.
Defense lawyers also were prevented from showing the jury scans of Muhammad's brain, which they said showed abnormalities linked to mental illness and behavioral problems. But the defense medical experts were also excluded by Millette because of Muhammad's refusal to meet with the prosecution expert.
The federal appeal also argues that Muhammad was not competent to represent himself, which he did for two days at the beginning of the trial, because of the brain damage and that Greenspun and Shapiro were ineffective for not pointing that out to Millette.
Connell and Sheldon also noted that Muhammad's attorneys in Maryland, where Muhammad was found guilty in 2006 of six more slayings, received 30,000 documents from the prosecution that were not provided to the Virginia defense.
Among the documents were statements from seven witnesses who gave conflicting statements about the killing of Pascal Charlot in the District on Oct. 3, 2002. The witnesses saw a burgundy car, not a blue Caprice, speed away from the scene, and several thought the shots came from that car a short distance from Charlot, who was standing on a street corner. Two trial witnesses said they saw a Caprice leave the scene, and a D.C. police officer stopped Muhammad's Caprice two hours before the shooting.
In Alabama, police say a woman who was slain outside a liquor store had been killed by a handgun and that the bullet fragment was "possibly too damaged to compare to a known weapon," newly revealed reports show. After the arrest of Muhammad and Malvo, the Alabama forensic examiner "suddenly found that he could make a definitive analysis" and linked it to the Bushmaster rifle, Connell and Sheldon wrote.