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Judge tried to persuade Muhammad out of self-representation

Muhammad, left, listens to Judge LeRoy Millette Jr., facing camera, Monday as stunned prosecutors look on.
Muhammad, left, listens to Judge LeRoy Millette Jr., facing camera, Monday as stunned prosecutors look on.

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CNN's Jeffrey Toobin on Muhammad's decision to represent himself.
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CNN's Jeanne Meserve on John Allen Muhammad's day in court.
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A look at the evidence against Muhammad.
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VIRGINIA BEACH, Virginia (CNN) -- The following is a transcript of the conversation Monday between John Allen Muhammad, Judge LeRoy Millette Jr. and various attorneys as Muhammad requested to represent himself.

Appearing in the transcript are prosecutors Paul B. Ebert, Richard A. Conway, and James A. Willett, as well as defense attorneys Peter D. Greenspun, Jonathan Shapiro, and Christie Leary.

JUDGE LEROY F. MILLETTE JR.: I understand that there is a motion that I need to address at the bench, so if you all will approach and do that. Mr. Muhammad, I understand you have a motion.

MUHAMMAD: Yes, sir. Can I represent myself?

MILLETTE: That is a motion that I think I am not required to grant constitutionally because --

THE COURT REPORTER: I can't hear.

MILLETTE: I don't have to grant the motion because I think you've -- yourself once the trial began, so I will have to consider certain factors before I decide. My first question to you is, Why do you want to represent yourself?

MUHAMMAD: Because --

COURT REPORTER: I can't hear him. I can't hear him.

MUHAMMAD: Because I feel like I can speak better on my behalf.

MILLETTE: When did you come to this conclusion?

MUHAMMAD: This is not the first time I mentioned this to my lawyers. I've talked to them about this before.

MILLETTE: OK. You didn't bring it to my attention before though, did you?

MUHAMMAD: I've asked them.

MILLETTE: You've asked them to bring it to my attention?

MUHAMMAD: Yes, sir.

MILLETTE: When did you do that?

MUHAMMAD: Three, four months ago.

MILLETTE: And what were they doing or not doing at that time to make you think you could speak better for yourself than they could?

MUHAMMAD: Because I always felt like I could speak better on my behalf.

MILLETTE: Why is that?

MUHAMMAD: Because I know me, and I know what happened, and I know what didn't happen.

MILLETTE: Do you understand that there are rules of evidence that you must follow?

MUHAMMAD: I understand.

MILLETTE: Specifically, for example, in an opening statement, you cannot testify. You can't testify in your opening statement. You won't be under oath. Do you understand that?

MUHAMMAD: Yes, sir.

MILLETTE: You cannot use an opening statement as an alternative way to get in front of the jury and tell them your side without being subject to cross-examination.

MUHAMMAD: I understand.

MILLETTE: You've talked to your attorneys about all this?

MUHAMMAD: We discussed it back in the back.

MILLETTE: Just today? Just this morning? ... OK. But you say you've been talking to them about this all along?

MUHAMMAD: No. I've been asking them.

MILLETTE: OK. When did you come to the conclusion you wanted to do this?

MUHAMMAD: A long time.

MILLETTE: When did you decide that you were going to tell me this morning as opposed to some other time?

MUHAMMAD: When I asked them is when I decided. And I asked repeatedly to be able to talk to the judge.

MILLETTE: OK. Tell me about your background. What is it in your background that makes you think you can adequately represent yourself in the trial? These men have been trained for years and years and years. You told me the other day you were not dissatisfied with their representation. Is all that correct?

MUHAMMAD: That's correct, sir.

MILLETTE: OK. Tell me what it is in your background that makes you think you can adequately represent yourself.

MUHAMMAD: Sir, I don't think I can adequately represent myself. I know I can.

MILLETTE: Tell me how you know you can.

Muhammad, at podium, delivers his opening statement to the jury on Monday. Prosecutors are in the foreground.
Muhammad, at podium, delivers his opening statement to the jury on Monday. Prosecutors are in the foreground.

MUHAMMAD: Because I know me.

MILLETTE: OK. But what do you know about the legal system? Cross-examine witnesses? Do you understand how to prepare pleadings? You know that there are certain motions that we've talked about for months in this case. I don't think you could have followed any of those motions. Do you?

MUHAMMAD: No, sir.

MILLETTE: No. There are going to be motions as we go along at trial. What makes you think that you can adequately make the proper motions at the proper time?

MUHAMMAD: Sir, if I don't speak on my behalf, I know I can't.

MILLETTE: Well, representing yourself is not the same thing as speaking on your behalf, is it? You certainly can be a witness and take the stand if you want to do that.

MUHAMMAD: Yes, sir.

MILLETTE: I'm sure you've talked to them about that.

MUHAMMAD: Yes.

MILLETTE: So speaking for yourself is a different thing than representing yourself, isn't it?

MUHAMMAD: Depending on the context, sir.

MILLETTE: Well, I don't know what you mean by that.

MUHAMMAD: Well, it just depends. I mean it all depends on what you are speaking about. Right now I'm talking to you, and I am representing myself.

MILLETTE: You are exactly right, but we're not asking you to prepare instructions for the jury. We're not asking you to select a jury. We're not asking you to examine witnesses or cross-examine witnesses. You don't have any scientific knowledge I assume or DNA experience, do you?

MUHAMMAD: No. I mean that can be assumed, sir.

MILLETTE: So how do you think you can adequately represent yourself without the training that these lawyers have had for -- Let's see. Mr. Greenspun, you've been practicing for how long?

MR. GREENSPUN: Twenty-five years.

MILLETTE: Twenty-five years. Mr. Shapiro?

MR. SHAPIRO: Twenty-nine years.

MILLETTE: That's 49 years of legal experience, and you have zero.

Prosecutor Paul Ebert heads back to his courtroom table Monday after Muhammad was given the right to defend himself.
Prosecutor Paul Ebert heads back to his courtroom table Monday after Muhammad was given the right to defend himself.

MUHAMMAD: And these lawyers are representing who?

MILLETTE: You.

MUHAMMAD: And the experiences that I have about me is a lot more than what they have about me.

MILLETTE: Absolutely. I understand that, but a trial is not the same thing as standing up and telling the jury about you, is it?

MUHAMMAD: No, sir. It's a lot of motions. I understand that.

MILLETTE: A lot of it has to do with the evidence that the Commonwealth -- OK. Well, tell me about your background. Have you ever been in a court proceeding before this?

MUHAMMAD: Yes, sir.

MILLETTE: OK. What kind of court proceeding?

MUHAMMAD: Court marshal in the military.

MILLETTE: And did you represent yourself in that?

MUHAMMAD: I didn't have to speak for myself. No.

MILLETTE: Did you have an officer or attorney representing you?

MUHAMMAD: Yes.

MILLETTE: How long ago was that?

MUHAMMAD: Early 90s.

MILLETTE: Early 90s. OK. How long a process was that? How long a proceeding was that?

MUHAMMAD: About three months.

MILLETTE: It went on for two months?

MUHAMMAD: I'm talking about the whole process. About three months.

MILLETTE: And the trial itself went on for a day I take it or part of a day?

MUHAMMAD: A week.

MILLETTE: OK. Is that the only other experience you've had in court in a legal proceeding.

MUHAMMAD: As far as -- yes.

MILLETTE: OK. Tell me about your educational background.

MUHAMMAD: What do you want to know?

MILLETTE: Did you graduate from high school?

MUHAMMAD: Yes, sir.

MILLETTE: Did you have any college?

MUHAMMAD: No, sir.

MILLETTE: Have you done any special reading of the law or anything else to help you prepare for this trial?

MUHAMMAD: Not yet. No, sir.

MILLETTE: OK. If I do let you represent yourself, you understand that you have to comply with the rules of evidence? Just because you are representing yourself doesn't mean that you get any special treatment.

MUHAMMAD: Yes, sir.

MILLETTE: And if you make an objection that's improper, that will be the end of it. If you can't properly control yourself, then I will not allow you to continue representing yourself.

MUHAMMAD: That's understandable, sir.

Muhammad, center, listens to court testimony Tuesday as his standby counsel, Peter Greenspun, left, and Jonathan Shapiro listen.
Muhammad, center, listens to court testimony Tuesday as his standby counsel, Peter Greenspun, left, and Jonathan Shapiro listen.

MILLETTE: I have to say that I think it's a mistake for you to do this, and I'll tell you the reason why. This is an extremely complicated case. You've already heard us talk about that time after time in court. It goes over vast geographical boundaries and time periods, and it's taken these attorneys months and months to acquire what information they have about the case, so I think it's a tremendous mistake if you to try to represent yourself. You understand that?

MUHAMMAD: That's the third time I've heard it today. Yes, sir.

MILLETTE: OK. Maybe I'll say it three or four more times.

MUHAMMAD: I'm not talking about from you. I'm talking about from them.

MILLETTE: OK. Mr. Greenspun, is there anything you want to say?

MR. GREENSPUN: Your Honor, Mr. Muhammad has brought up --

THE COURT REPORTER: I can't hear. I just can't hear anything. Let me put my machine up here and see if this will work better.

MILLETTE: Go ahead.

MR. GREENSPUN: Mr. Muhammad has asked about speaking to the court earlier on in this matter, and we've discussed it, we being both Mr. Shapiro and myself, at some length with Mr. Muhammad at different times. I felt that we were long through that process; and there were different strategies discussed, different theories discussed and so on. We -- I'm not sure if I'm in a position to be able to object to it but strongly, strongly advise Mr. Muhammad against this step. We're prepared for trial and can represent his interests. I'm not quite sure without getting into privileged issues what more I can say at this point. I believe that the standard is a discretionary one at this point under the Singleton case, which I think we passed up to Your Honor.

MILLETTE: You've spent quite a few months on this. The trial has clearly started.

THE COURT REPORTER: I ...

MILLETTE: You've spent months and months with him. Do you think that he can competently represent himself?

MR. GREENSPUN: Judge, you're asking me a question that's contrary to what I think is in his best interest. I can tell you this, that all attorneys don't send their clients every piece of paper in the case. Mr. Muhammad has had every pleading, every correspondence, every everything from the beginning, and I'm satisfied that he doesn't just put them in a pile in the corner of his cell, that he has reviewed them; and I do not believe that he has the -- the courtroom skills necessary to match 70 or so years of prosecutorial experience including many, many capital cases and the backup of the task force and all that kind of thing that these prosecutors have; so I don't think that Mr. Muhammad has the skills to do that -- legal skills to do that -- but that's not the end of the question though for the court I don't think.

MILLETTE: Will you switch places with Mr. Shapiro?

MR. SHAPIRO: I can't add very much except to say that there's some confusion about what our duty is at this point. Mr. Muhammad wants to represent himself, and it may be that we should help him accomplish that goal. There is -- I think Mr. Greenspun and I have both found him to be a very bright man; and as Mr. Greenspun has said, we -- he's had the benefit of every piece of paper we've gotten and has gone over most of it with us, so he's certainly familiar with the parameters of the case.

It is a discretionary matter we think with the court at this time; and my personal view, as we've expressed to Mr. Muhammad, is that this is a mistake. He has raised it from time to time. We always thought we got past it. Mr. Muhammad, you know, may not share that view. It may be that this is always what he wanted to do and just never knew how to raise it with the judge himself before. If the court sees fit to grant his motion, we would certainly request to be appointed as standby counsel and to be able to play as full a role as the court will allow.

I don't know if Mr. Muhammad intends to do everything himself or to pick and choose. We're willing and able to step in at any point, and I think the court knows as well from the cases that we've handed up that the right to self-representation can be forfeited because of events at trial, and we would be available to step right back in at the court's direction if necessary to do so.

MILLETTE: I'll give you a chance to say something. Mr. Muhammad, what role do you -- are you asking me to have the attorneys play if I let you represent yourself?

MUHAMMAD: Well, whatever is necessary for them to assist me.

MILLETTE: Well, what does that mean exactly? That they sit there next to you and that you can ask them questions about things?

MUHAMMAD: Yes.

MILLETTE: But you're not asking them to be able to stand up and alternately take one witness, you take one witness, sort of a co-counsel situation, are you?

MUHAMMAD: I mean if that's possible; but if it's not possible, no.

MILLETTE: You would represent yourself and just ask them to be standby to assist you in certain things?

MUHAMMAD: Yes.

MILLETTE: You've heard what both of them have said. You've heard that both of them strongly recommended against it primarily because they've got fifty years of legal experience and you have zero. Tell me what consideration their recommendation has played upon you making this decision, if any. In other words, do you think it's a valid point that they've raised?

MUHAMMAD: I think it's a very valid point. Yes.

MILLETTE: Then why do you think that you should represent yourself as opposed to following their advice necessarily?

MUHAMMAD: Because I believe that I can represent myself a lot more adequate than what they can.

MILLETTE: OK. You keep saying that, but you haven't told me how. How can you represent yourself more accurately than they could do?

MUHAMMAD: Because there's just certain things that I know.

MILLETTE: Can't you tell them and they can represent you by knowing that?

MUHAMMAD: I have told them.

MILLETTE: And have they failed to do anything you've asked them to do?

MUHAMMAD: Well, some things, yes. And I don't want to speak specifics because they are here.

MILLETTE: OK. Mr. Ebert.

MR. EBERT: Your Honor, the Commonwealth would strongly prefer that counsel stay in this case; and I do think he had an absolute constitutional right to tell us he'll waive his right to counsel. The question I think the court's got to determine is whether or not it's made timely. If you look at the Thomas case, it's pretty close to this case; and as the court points out, it varies from case to case; so as far as the Commonwealth's position is that, you know, I think, you know, counsels have certainly done an adequate job so far; and from a practical standpoint, I would prefer to have counsel in the case; but, again, this is the defendant's right.

MR. WILLETT: Judge, another thing that might weigh in the court's exercise of its discretion is that the case law including Thomas is pretty clear that Mr. Muhammad cannot enjoy a hybrid situation.

MILLETTE: I know that.

MR. WILLETT: And so it will not be a situation where he can turn to Mr. Shapiro and Mr. Greenspun and say, Hey, you take this DNA witness.

MILLETTE: No. I'm not going to do that at all. Absolutely not. If I let them be standby counsel, they'll simply be there to assist him; but if he represents himself, you have to handle every part of it -- the opening statement, the examination of witnesses, the cross-examination of witnesses. Everything.

MUHAMMAD: I understand, Your Honor.

MILLETTE: I tell you what troubles me, Mr. Ebert, is the testimony that he has asked his attorneys about it for some months; and they thought they had resolved it; but he says that they had not resolved it in his own mind. That certainly weighs a little bit against waiver.

MR. EBERT: I understand that.

MILLETTE: Mr. Muhammad, do you think that you fully understand what I'm telling you? That you have the right to have the attorneys represent you? That I strongly recommend that, and you want to go against that recommendation?

MUHAMMAD: I understand fully what you're saying, sir.

MILLETTE: And that's what you want to do?

MUHAMMAD: Yes, sir.

MILLETTE: And you want to represent yourself?

MUHAMMAD: Yes, sir.

MILLETTE: And that means you will be the only person speaking in the courtroom. They can sit at the table with you, and you can perhaps upon occasion ask them questions, but I don't expect you to ask them every question that's being formulated. That would, I think, unduly hinder the trial process. I would expect you to represent yourself.

MUHAMMAD: That's my intent, sir.

MILLETTE: OK. Despite the court's admonition, you think it is in your best interest to represent yourself?

MUHAMMAD: Yes, sir.

MILLETTE: And you take fully the responsibility for whatever happens during the trial?

MUHAMMAD: Yes, sir.

MILLETTE: OK. Finally, let me tell you this. If I believe that you are using your self-representation as a soap box opportunity to get in inadmissible information or ask inadmissible questions, I may stop it and prohibit you from continuing to represent yourself and have your attorneys represent you; or if your conduct in the courtroom in any way is inappropriate, then I may no longer allow you to represent yourself. Do you understand that?

MUHAMMAD: Yes, sir.

MILLETTE: OK. I'm going to grant your motion and allow you to represent yourself. I am going to direct that Mr. Greenspun and Mr. Shapiro be standby counsel, that they assist you in every aspect in the case; but they cannot represent you any longer. You are going to be the one representing yourself, and I am going to inform the jury that is, in fact, the position of the case. You understand that?

MUHAMMAD: Yes, sir.

MILLETTE: Do you have any questions about anything?

MUHAMMAD: Sir, can we -- may I talk to my lawyers?

MILLETTE: Before I make this decision?

MUHAMMAD: No. No. May I have some time to talk to my lawyers after the decision is made?

MILLETTE: About what?

MUHAMMAD: About certain information.

MILLETTE: Well, we're ready to start the trial right now. We are scheduled to go. Let's select the alternate jurors right now. What we have done, Mr. Muhammad, is we have taken off all the jurors that were among the fifteen; and they have been pulled off these little pieces of paper. I'm sorry. I have the little pieces of paper. These are the jurors that are on the jury list. We have removed the people that were struck, and we will fold them into fifteen small pieces of paper, and we will randomly select three people that are on the jury that will be the alternate jurors so these are the fifteen that are still on the jury now. Do you understand?

MUHAMMAD: Yes, sir.

MILLETTE: Mr. Ebert.

MR. EBERT: Judge, would the court consider telling the jury when it makes the announcement that Mr. Muhammad is going to represent himself --

MILLETTE: Oh, absolutely.

MR. EBERT: I know; but when the court makes that announcement -- The court has explained to Mr. Muhammad the rules of evidence will nevertheless apply to him like any other litigant.

MILLETTE: I'll tell them that.

MR. SHAPIRO: Your Honor, one more thing. I would envision that we can be of great use to Mr. Muhammad and probably to the proper flow of things in court if we were able to have access to him at night at the jail to go over this. I don't know what the sheriff's position in on that; but I'd ask for the court's help if there's any --

MILLETTE: Yeah. We'll do that. Have you not had access to him since you've been here?

MR. SHAPIRO: Oh, no. There's never been an issue, but we haven't been called upon to see him at night.

MR. GREENSPUN: Judge, that's another thing that we were going to bring up to the court with the possibility of having the Commonwealth -- we were going to talk to them first, but we didn't get a chance this morning given these events -- but having the Commonwealth identify the -- their witnesses for the next day or the next fifteen witnesses or something. We have literally 200 or 300 potential witness files; and, certainly, I don't know why that would change at this point.

MILLETTE: Do you-all have any problem with that?

MR. EBERT: Identify ...

MILLETTE: They want to know who's going to come up like for instance the next day just so they can have those files with them -- those potential witnesses.

MR. EBERT: I think we can tell them which scenarios -- which incidents we are going to be presenting.

MILLETTE: He says they can tell you which scenarios or evidentiary areas that they're going to go into. Would that narrow it down for you? OK. You see what they are doing, Mr. Muhammad? They are folding each of those into -- into small little things, and then we're going to randomly pick out people one at a time to be the alternates. Now, we will not tell anybody on the jury who the alternates are until the case is concluded; and then we'll exclude the alternates. I'm directing you not to tell them who they are.

You may lose one during the course of the trial -- one or two of them or more -- and then we'll have the alternates ready to go. All fifteen? OK. How about we put Ms. Leary to work and let her select the alternates. Ms. Leary, you've got a job now. Pick the alternates. Reach in there and take one first at a time. OK. We'll mark this with a 1. This will be the first alternate. Did you get it, Mr. Ebert?

MR. EBERT: No.

MR. SHAPIRO: Is that the jurors' number, Judge, or is that the --

MILLETTE: Yeah. You have to cross reference it to the seat number, but that's the number --

MR. EBERT: This is the seat number.

-- Transcript provided by Ronald Graham & Associates

MILLETTE: This is not the seat number. This is the actual --

MR. EBERT: Their actual number.

MILLETTE: Yeah. Which is what we're going by is the number rather than the name. We're not putting that in the record -- the name. Some of this record may be available to the media. OK. That will be the second alternate. OK. This is the third alternate. OK. You-


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