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Jeffrey Toobin: Muhammad likely 'will not see another decade'

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CNN's legal analyst Jeffrey Toobin

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A Virginia jury recommends death for convicted D.C.-area sniper John Allen Muhammad in connection with one of the killings. (November 24)
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Jury foreman Jerry Haggerty answers questions about the jury's decision to recommend death for convicted sniper John Allen Muhammad (November 24)
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(CNN) -- The jury that convicted Washington-area sniper John Allen Muhammad of murder recommended Monday that he be sentenced to death for one of 10 fatal shootings that terrorized the area last year.

CNN anchor Carol Costello spoke with CNN legal analyst Jeffrey Toobin about the verdict. This transcript is a portion of their conversation.

COSTELLO: Jeff, this jury came back so fast, is it surprising?

TOOBIN: Not really. This has been a pretty overwhelming case and a case where the defense is not, has not had much to work with, let's just put it way. In terms of the guilt phase, they had the fact that there was no evidence proving that Muhammad was the gunman, the triggerman on any of the murders. But in terms of the sentencing phase, John Muhammad did not have a particularly sympathetic story. He was not someone who the jury is likely to have a great deal of sympathy for.

The one thing very much in the defendant's favor is a note that the jury sent out last week, last Friday, that suggested there was some division and they asked what if we can't come to a unanimous verdict. Obviously, they seem to have gotten around that problem rather quickly, but all of this seems to argue rather badly for the defendant at this point.

COSTELLO: Because even if the jury finds he does present a future [danger] and he is suffering from depravity of mind they can still give him life, right?

TOOBIN: Well, that's the only choice available to them it seems is life or death. He's not going anywhere, that's for sure.

COSTELLO: Well, they did convict him on a terrorism charge and that would be a first, wouldn't it, in the state of Virginia?

TOOBIN: Right. There are avenues for appeal here on both of the theories. One theory is that this terrorism statute, that said he attended to cause a terrorist threat to the community by killing more than one person. That is a new law. That was passed in the light of 9/11 and no one has been sentenced much less executed under that law, so there ... may be grounds for appeal there.

The other theory, Virginia has a so-called triggerman's statute. The judge in this case used a somewhat novel theory because there was no evidence suggesting that Muhammad was the gunman or no proof that he was the gunman. The judge said to the jury, you can find he was the triggerman if he was involved in using the car, the automobile, that was the weapon because, as you recall, there was a sniper's nest built into the trunk and... the judge said that is a weapon as much as the gun was a weapon. That is something that might be challenged on appeal, as well.

COSTELLO: Let's talk about the history of Virginia juries. They have a history of often handing out the death penalty, don't they?

TOOBIN: This is a tough state. Virginia is really right in the very second rank. It tends to trade places with Florida for the second most executions after Texas. Texas is in a league by itself. This is a state that sentences people to death and executes them. California is a state where there are lots and lots of people sentenced to death -- there are more than 500 people on death row in California -- but there're almost no executions. Virginia has executions. There was just one in April and they're usually several a year. So, if you get sentenced to death in Virginia, you're very likely to be executed.

COSTELLO: His alleged accomplice Lee Boyd Malvo is currently on trial. Will whatever the decision the jury comes to matter in his case?

TOOBIN: It shouldn't. One, the judge in the Malvo case has already asked the jurors whether they were aware of the guilt verdict in the Muhammad case and he asked them very specifically -- the two I believe, who knew of the verdict -- can you set that aside? And, the jurors said, yes. Surely, once this verdict is known in the penalty phase the judge in the Malvo case will go back to the jurors there, find out who, if anyone knew about the verdict and then question them to see whether they could make an independent judgment.

COSTELLO: And, the Malvo case is proceeding very quickly, too, isn't it?

TOOBIN: You know, northern Virginia is known as the rocket docket. But, all of Virginia has very fast trials, and as someone who has covered trials in Virginia only occasionally, I have been astonished at how quickly both the Muhammad and the Malvo cases have gone, but that is apparently par for the course in Virginia.

COSTELLO: The prosecution has already rested and the defense has started its case today, right?

TOOBIN: They are moving quickly in the Malvo case and that's how prosecutors like it, and prosecutors tend to do very well in Virginia.

COSTELLO: I have often wondered why family members want to sit in the gallery watching the proceedings, hearing in detail what's happened to their loved ones. But they feel a need to do that, don't they?

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John Allen Mohammed appears in court Monday.

TOOBIN: Well there is really a tremendous division among crime victims' families on that. We tend to know those of the victims' family who want to be there, but there are often victims' families who don't want to be there.

COSTELLO: Jeffrey, what happens now after they made all of their decisions on all counts?

TOOBIN: Well, the judge has to formally impose sentence. That will actually be later. ... But that is mostly a formality. And then the appeals process begins.

What is unusual about the Muhammad case, among many things, is that he is facing several other trials. The Justice Department and the Maryland and Virginia prosecutors are going to have some difficult decisions to make now that he's been sentenced to death about whether they will want to try him in all those other cases because this was just the Myers case that was before this jury even though ... there was evidence of the other crimes before them.

Whether there will be a federal case against him. Whether there will be Maryland prosecutions plus the earlier crimes in the South. Those...

COSTELLO: Jeffrey, just to interrupt for a second. The jury has just read its decision. Death for the capital murder charge, as well. And go on with your thoughts.

TOOBIN: I guess once they found one it is sort of unlikely they would change their mind in the second. His legal ordeal is far from over. ... There is a lot more to come.

COSTELLO: Jeffrey, you know, at the beginning of this trial, Muhammad represented himself. Some said that might present a more sympathetic character to the jury, but apparently it did not.

TOOBIN: I guess that didn't work too well, did it? I think in the context of a case like this, a day or two of him representing himself probably had very little impact one way or the other. The judge was very careful to warn him not to do it, to instruct -- to say that he was better off not doing it. And, so I think it is unlikely to be an issue on the appeal, that the judge let him do this for a day or two.

An interesting fact that -- the average time on death row between sentence and execution in Virginia is 7.2 years. So, that is by death penalty standards, fairly quick. So, I think it is likely that John Muhammad will not see another decade.

COSTELLO: We just got word that the judge has set February 12 for the formal sentencing date. And, of course, we probably can guess what that will be. You mentioned before that he faces many other trials -- not just in Virginia, but in Maryland as well. How likely is it that those trials will be waved because he received the death penalty in this case?

TOOBIN: That is a very interesting, difficult question, and I really don't know the answer to it because there are a lot of competing factors at work. Every murder, obviously, is extremely important both to the immediately family and to the community where it took place. And, many communities want to see Muhammad tried for that crime.

COSTELLO: You know, I can certainly understand it, but there are political factors here as well, aren't there?

TOOBIN: There are political factors. Although, it's hard to think that it's much of a political negative anywhere to be trying one of the beltway snipers. They don't have many supporters. It's extremely expensive to try these cases. I think that may be a factor.

Just collecting all this evidence, summoning the experts, bringing the witnesses together, dealing with changes in venue, which are likely in cases like this. It's extremely expensive. And, some of these communities may not wish to shoulder that burden given the fact he's already been sentenced to death.

COSTELLO: Yes, many, many millions of dollars. Even to put on the trial that went on just a short time ago for John Allen Muhammad.

TOOBIN: That's right. There were 130-plus witnesses in this trial for the prosecution. It's a tremendous amount of work to gather all those people together to pay for their travel expenses put them up, and because ... remember, this trial was moved to the Virginia Beach area, so, none of the witnesses were local and that's likely to happen in any further trials.

But, you know, Attorney General [John] Ashcroft, and by the way, it is worth pointing out that this verdict is a victory for Attorney General Ashcroft because he said he wanted this case tried in Virginia first, because the death penalty was available there. And he got what he wanted.


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