Prosecutors bicker over venue. Police complain about an interrupted interrogation. Washington state looks into an unsolved killing. Louisiana files new murder charges, expanding the sniper case to yet another jurisdiction. Outlook asked four knowledgeable observers for their views on the complications that have already arisen in what first appeared to many to be an open-and-shut prosecution.
Never Cut Short
David Simon, who produces the police drama "The Wire" for HBO, is the author of "Homicide: A Year on the Killing Streets," a nonfiction account of life in the Baltimore homicide unit.
If the suspect is talking -- if he's saying anything at all, no matter how inconsequential -- you sit there and let him talk. And there isn't a competent criminal investigator anywhere in America who will ever say otherwise.
In the back-and-forth this past week between U.S. Attorney Thomas M. DiBiagio, Maryland's top federal prosecutor, and Montgomery County State's Attorney Douglas F. Gansler, there is much that can be dismissed as a simple, if unseemly, turf fight for possession of a high-profile criminal case.
But the claim by local officials that they had to cut short an interrogation of accused sniper John Allen Muhammad because DiBiagio insisted that federal officials take custody -- this, if true, would be enough to slacken the jaw of any veteran prosecutor or police detective.
Defending himself, DiBiagio is quoted in this newspaper as saying: "There was no indication throughout the day that either of the individuals were yielding any useful information."
Another federal law enforcement official, unidentified, was quoted elsewhere as arguing that with a ballistics match in the bag, a confession or statement by the suspects was unnecessary: "Tell me what more we need from them?"
Well, perhaps it would be nice to learn if the two suspects can be implicated in other crimes nationwide. And, for that matter, information about which suspect was the triggerman in which offense would be helpful.
Any criminal prosecutor on the planet will tell you that it is always better to go into court with more evidence rather than less. It is simply shocking for a law enforcement official to contend that a criminal confession, or even a statement that falls short of confession, is ever beside the point.
As for DiBiagio's argument that the suspects hadn't said anything worthwhile yet, I can only quote from something I wrote after following some very good Baltimore detectives through a year's worth of casework:
"In the interrogation room, it requires hours of prolonged effort to break a man to the point where he's willing to admit a criminal act. . . . Even under the best conditions, four to six hours of interrogation are required . . . and eight or 10 or 12 can be justified as long as the man is fed and allowed the use of a bathroom."
If a suspect is talking -- even if his statements are exculpatory, or argumentative, or gibberish -- a detective worth his overtime does everything possible to keep that man talking. An exculpatory statement may in itself offer investigators additional details, an alibi may be broken down, a small, but significant detail may get blurted out. And all the while, the detectives and the suspect are interacting on a personal basis, establishing trust and camaraderie, so that the conversation -- hour by hour -- takes on a life of its own.
If, as DiBiagio now claims, he did not demand custody of the suspect until Muhammad had lawyered up and the interrogation was dead-ended, he is owed an apology by local officials alleging otherwise. But if the U.S. attorney for Maryland intervened to end a continuing interrogation, then either his competence or his priorities are fairly at issue.
Make Sure That Justice Is Served
Steve Tucker is the prosecuting attorney for Spokane County, Wash.
I have watched the evolving prosecution of the sniper case with great interest -- and not just because John Allen Muhammad and John Lee Malvo have a history here in Washington state. I'm also remembering a case that I prosecuted two years ago -- one with its own issues of competing jurisdictions and the desire to invoke the death penalty.
Robert Yates was charged with the murder of eight women from 1996 through 1998. My experience as a Washington state trooper and as prosecuting attorney had strengthened my belief in the death penalty, and I had no compunction in pursuing it. As the deadline for filing a capital case approached, Yates's defense attorneys came to me to see what, if anything, could deter me.
We spoke with the victims' families, held discussions with police and researched the status of our death penalty. Surprisingly to me, two-thirds of the victims' relatives were in favor of a life sentence, which they seemed to think would be a greater punishment than lethal injection. Not surprisingly, the police were in favor of execution. As for the status of the death penalty, I learned that only one person had been executed against his will in Washington state in the past 22 years. Three men had been executed after waiving their appeals and saying they wanted to die; 13 were (and still are) on death row; all other death sentences had been overturned on appeal.
This was the defense attorneys' proposal: Yates would agree to plead guilty to eight additional murders, including the case of a couple killed while picnicking in 1975. He would also reveal the location of a body missing in one case. After negotiation, Yates also promised to undergo what we call "free talk" with police and to meet with FBI profilers -- helping law enforcement officers gain insight into criminal thinking and behavior. He said he would not seek any appeal. We were ready to announce a deal.
But that's not how it worked out.
Somewhat similar to the recent snipers, Yates had killed in four different counties: Spokane, Walla Walla, Skagit and Pierce. At the last minute, Pierce County pulled out, and announced it would prosecute -- and seek the death penalty -- in the two cases there.
That caused Yates's lawyers to withdraw part of their offer, including the "free talk" and profiling meeting. Nevertheless, I proceeded with the plea bargain, believing it worthwhile to close several previously unsolved murder cases and to find a body for a grieving family.
In October 2000, Yates pleaded guilty to 13 murders (I dropped charges in one case) and one attempted murder. He was sentenced to 408 years -- something I call "death in prison."
Pierce County won its convictions; just last month, prosecutors there used our 14 convictions in arguing for and winning a death sentence for Yates.
I'm satisfied that some justice has been achieved. True, we lost a chance to gain more insight into a criminal mind. But Yates, no matter when or if ever he is executed by the state, will die behind bars.
Hard to Find Jurors Without Prejudice
Peter Greenspun is a defense attorney in Northern Virginia and a former president of the Virginia College of Criminal Defense Attorneys.
The zeal to convict, I understand; the race to kill, I do not. It scares me, just as the actions of the sniper did.
Under the watchful eyes of the world, we need the American justice system to function at its best. That does not simply mean a fierce and relentless prosecution. We should be paying just as much attention to giving the two suspects the best defense we can muster. John Allen Muhammad and John Lee Malvo deserve it no less than anyone else, no matter what they are charged with doing.
Is this an open-and-shut case? To a defense attorney, it can't be. In my 24 years on the defense side, I've been involved in more than two dozen homicide and manslaughter cases. Sometimes the evidence seems overwhelming. My job -- the job of any conscientious defender -- is to do whatever I can to challenge and test the weight of that evidence. Factual discrepancies, mental health questions, legal technicalities -- the defense attorney finds the tool to use.
In this case, the defense begins with huge and obvious hurdles. First: Who will the defense attorney be? In some jurisdictions, private attorneys are appointed by the court; in others, public defenders are provided. Whoever is chosen must scrupulously examine his own ability to defend those who may have made him feel fear. The judge will face the same challenge.
The jury presents a similar dilemma. It will be nearly impossible to find someone in our area who was not personally affected by the three weeks of fear -- in short, who was not, in some small way, a sniper victim. The jury selection process, always critical, is bound to be particularly deliberate and tedious. The court must ensure the selection of 12 citizens who will be honest about the dread they felt for those three weeks, and who will be able to set it aside. Their verdict must be based only on facts and the law, not on fear or a demand for retribution.
Even then, the playing field isn't level. The prosecution has at its disposal a remarkable arsenal of resources. Court-appointed attorneys, meanwhile, work for rates that do not even cover overhead, while underpaid public defenders are already overworked. They will have to beg, borrow and beg some more to obtain needed resources.
Prosecutors shine in the spotlight, covered in the mantle of doing the people's work. It is the defense attorney who, after the trial, must face the scorn of many he knows, and many he does not, who will surely condemn him for doing his job. Whoever ends up defending these suspects will be protecting the rights of us all.
The Best-Case Scenario Is Federal
David Schertler, a Washington attorney, was chief of the Homicide Section in the U.S. attorney's office in the District of Columbia from 1992 to 1996.
At the core of the debate over where John Allen Muhammad and John Lee Malvo should be prosecuted first is the larger question of what we seek to accomplish by bringing these men into our criminal justice system. Few are arguing that a sentence of death would not fit the horrific crimes the pair allegedly committed.
But should our goal simply be to decide who can impose the death penalty easily and execute it quickly? I don't think so.
Murder demands vindication and justice, both for the family and friends of the individual victims and for the community at large. If the question were limited to which local jurisdiction should prosecute first, one would look to the community most affected -- in this case, Montgomery County, where six people lost their lives. But in this case, we are not limited to the local jurisdictions. The best answer to the "who goes first" debate is the federal government.
The crimes transcended state and local boundaries. The killers intended to terrorize and they relished the terror they inflicted. That terror was not limited to one community, but extended over the entire region. The prosecution must seek justice not only for each individual killed or wounded, but for the millions of people who became victims.
Federal prosecutors can present, at trial, the most comprehensive picture of all the crimes and the evidence related to them. And arresting the suspects was only the first step: There is a lot more investigation to do. Already we have seen links to murders in Louisiana and Alabama and Washington state.
Federal prosecutors and law enforcement agencies are best suited to conduct such a broad-based investigation. Federal prosecutors have the most flexibility, experience and resources at their disposal.
The public bickering over who should try the case first must stop. It insults the tremendous community and law enforcement effort that ended the killings. For now, local prosecutors would do well to put aside their interests -- legitimate as they are -- and defer to their federal counterparts.