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Are there grounds for reversing D.C.-sniper's guilty verdict?

By Elaine Cassel
FindLaw Columnist
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(FindLaw) -- On November 16 the jury in the trial of John Allen Muhammad returned a verdict of guilty on both murder counts, as well as on related firearms charges, for one of last year's sniper slayings. (The trial of Muhammad's alleged accomplice, 18-year-old John Lee Malvo, is still under way.)

Based on the murder convictions, Muhammad was eligible for the death penalty, and the jury recommended that sentence.

The convictions themselves, however, remain quite shaky. For a number of reasons, they may well be reversed on appeal, and Muhammad may, as a result, be afforded a new trial.

The first ground for appeal: The triggerman rule

The verdict first will be appealed to Virginia's Court of Appeals. Then, it will doubtless be appealed by the losing side to Virginia's Supreme Court, which must review all capital murder convictions. Several important legal points will be raised by the appeal.

The first ground for appeal relates to the so-called "triggerman rule." Under Section 8 of the Virginia death penalty statute, one way for a murderer to be death-eligible is if he is proven to have killed more than one person in the span of a three-year period.

In Muhammad's case, however, there was no proof that the defendant killed anyone, let alone two people. Instead, the evidence suggests that there was another triggerman -- and that person is alleged to be Malvo. All of the evidence against Muhammad was circumstantial, albeit overwhelmingly pointing to his involvement in the crimes.

Prior to trial, Muhammad's lawyers therefore asked the judge to strike the murder charges based on this evidentiary deficiency. But Judge Millette denied the motion, for two reasons.

First, he held -- drawing on several appellate cases -- that the "triggerman rule" doesn't really require that the defendant be a triggerman; it is enough if he is the "immediate perpetrator" or "principal instigator." The law refers to this as being a "principal in the first degree," which is the same as actually being the murderer.

Second, Millette held that in some sense, the evidence did support a conclusion that Muhammad had used a weapon, for he had driven a Chevrolet Caprice retrofitted with a trunk device that allowed the shooter to hide. The car, the judge suggested, was itself a weapon.

Both of these rationales might be rejected on appeal.

The second ground for appeal: Can murder be "terrorism?"

Under Section 13 of the Virginia death penalty statute -- which was enacted in 2002, in the wake of the September 11 terrorist attacks -- a death sentence can also be imposed for "{t}he willful, deliberate and premeditated killing of any person by another in the commission of or attempted commission of an act of terrorism" as defined in another Virginia statute.

That second statute, in turn, defines an act of terrorism to encompass acts of violence "committed with the intent to (i) intimidate the civilian population at large; or (ii) influence the conduct or activities of the government of the United States, a state or locality through intimidation." Prosecutors argued that Muhammad's alleged acts of violence were done with both types of intent.

Prosecutors called a parade of witnesses to describe the fear of the snipers that gripped the Beltway area last fall. They argued that this evidence fulfilled the first prong of the statute -- showing an intent to intimidate the civilian population.

Prosecutors also introduced into evidence a note, allegedly signed by Malvo, that demanded that $10 million dollars be deposited in a bank account. They suggested that the purpose of the note was to intimidate Virginia into paying off the snipers -- fulfilling the second prong of the statutory intent requirement.

On appeal, Muhammad's attorney will likely argue that this provision's purpose and legislative history show that it was only intended to reach terrorism as typically defined -as the perpetration of violence against civilians in the service of a political purpose. And doubtless, they are correct that the legislature that passed this statute was thinking of, for instance, an Al Qaeda sleeper cell, not a duo who were themselves civilians.

In the Muhammad case, the concept of "terrorism" has been stretched beyond its breaking point. Broadly interpreted, without attention to its purpose -- as prosecutors have interpreted it -- the Virginia law would view every crime meant to intimidate the civilian population as "terrorism." But this broad interpretation cannot stand, for virtually every crime is arguably done with this intent.

After all, what violent crime does not intimidate civilians? Who is not afraid of a gun-toting drug ring? What rape does not intimidate the female population in the area in which it took place? And what criminal does not know that these kinds of intimidation will result -- and thus, at least in a sense, intend for it to happen?

Violent crimes are terrible. But they are not always terrorism. It's important that we remember the distinction.

The third possible ground for appeal: Prejudicial evidence

Finally, even beyond these two leading arguments, there is another significant ground for appeal. Trial judges generally have discretion to make judgments about the admissibility of evidence. But in this instance, Judge Millette may have exceeded the bounds of his discretion.

Muhammad was tried for killing one man, Dean Myers, and at least one unspecified victim. That's because, as noted above, the capital death penalty statute (not the "death by terrorism" statute) requires that the prosecutors show that Muhammad killed more than one person in three years.

But Judge Millette allowed families of several sniper victims to testify, even though there was no specific evidence as to the murders. Thus, this evidence is of dubious, if any, relevance and may have been highly prejudicial to jury deliberations related to guilt.

The jury may have assumed the judge would not have allowed the other victims' families to testify if the judge did not think Muhammad had killed those victims. Furthermore, the jury may also have assumed that if the judge thought Muhammad killed the other victims, then the judge probably also thought Muhammad killed the victims for whose deaths he was actually being tried.

These assumptions, if they were made, may have prevented Muhammad from having a fair trial. An appellate court may well rule that the prejudicial effect of the testimony far outweighed any probative value.

In the end, when the proverbial smoke clears, the sniper trials may be remembered as a landmark in the post-September 11 attempt to broaden the term "terrorism." The appeal in the Muhammad case will test whether lawmakers can extend the reach of this emotionally charged term to everyday crimes.

Let us hope the appeals courts narrowly construe the Virginia statute to limit it to its purpose: Targeting genuine terrorists, such as al Qaeda. Otherwise, other jurisdictions may follow Virginia's lead, deem murders and other crimes "terrorism," and argue that these "criminal" terrorists, like their political counterparts, don't deserve the constitutionally protected rights that make our criminal justice system one in which even its critics find much to be proud of.

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Elaine Cassel, a FindLaw columnist, teaches law and psychology and practices law in Virginia and the District of Columbia. Her book, The Other War: The War At Home, a chronicle of the Bush Administration's dismantling of civil liberties since September 11, 2001, will be published in 2004 by Chicago Review Press.

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