By Andrea F. Siegel and Kimberly A.C. Wilson
November 13, 2003
Two homemakers, a first-grade teacher and a Coast Guard veteran are among those picked for the panel of 12 jurors and four alternates. The prosecution and the defense will give their opening statements to the jury this morning.
Reflecting variety in its makeup, the nine-woman and seven-man panel is composed of seven white women, four white men, two black men, two black women and one Asian man. Half of the jurors are in helping professions, some with children, seen as a boon for the defense.
In addition to the Coast Guard veteran, the panel includes three blue-collar workers and three people in sales work. Nearly all are parents.
The oldest member is a retired teacher, 70, and the youngest is a 22-year-old sales representative. After spending Monday and Tuesday selecting 28 qualified potential jurors, lawyers reduced the group to 16 yesterday, with each side eliminating six within 15 minutes.
Defense lawyers said they based their strikes on body language and minor distinctions.
Prosecutors would not comment, other than to say that one potential juror who appeared to have a grand larceny conviction but failed to admit it when questioned was among those they rejected - and will be reported to authorities.
Four of the 16 selected will be alternates. But they will not be told they are alternates until the deliberations begin.
Pleased with the makeup of the jury, defense lawyers said it is more diverse than they would have seen in Fairfax County, where Linda Franklin, 47, was gunned down Oct. 14, 2002, in a Home Depot parking lot.
She was one of 10 people killed by a sniper's bullets in the Washington area last fall, where authorities say the murderous rampage ended with the Oct. 24 arrest of Malvo and his alleged companion, John Allen Muhammad.
Malvo, 18, is pleading not guilty by reason of insanity to two counts of capital murder and a weapons violation in Franklin's death. To find jurors less affected by the three-week sniper rampage, the trial was moved to Chesapeake, a city of about 200,000 in the Tidewater area of Virginia.
"Generally, diversity is a good way to achieve fairness," said Craig S. Cooley, one of Malvo's five lawyers.
Fairfax County Commonwealth's Attorney Robert F. Horan Jr. said he would not discuss the case.
Legal experts said the jury probably is as good for Malvo as he can expect. Virginia ranks second only to Texas in executions, and in recent years it has executed three men who, like Malvo, were juveniles at the time of the crimes.
U.S. Attorney General John Ashcroft said the law and facts were key to his decision that the first trials of sniper suspects Malvo and Muhammad, 42, would be in Virginia, and he sent their cases to the state's two most experienced prosecutors. Closing arguments are today for Muhammad in Virginia Beach.
Steven D. Benjamin, a Richmond criminal defense lawyer, said it's significant to have parents and teachers on the jury, given that Malvo's lawyers are contending that Malvo was under a Svengali-like influence of Muhammad at the time of the shootings.
Jury diversity, he said, "is good for both sides" because it typically expands the number of viewpoints on a jury.
But, he cautioned, it would be insulting and inaccurate to presume that minorities would sympathize with Malvo, who is black and Jamaican-born.
Robert J. Cleary, the lead federal prosecutor in the trial of Unabomber Theodore Kaczynski, said the jurors selected in Malvo's trial seemed generally favorable to the defense: "If I were the defense, I would want to have jurors with children, and preferably people who had teen-age children, to identify a little with Malvo."
"These are gross generalizations, but having women would be good," he said.
The defense team rejected four men and only two women. Prosecutors cut five women and one man. The fact that few people with military experience or connections to law enforcement survived the selection process was a loss for prosecutors, Cleary said.
"The prosecutors would want to have military types," he said. "They tend to be very conservative, much more of an eye-for-an-eye temperament."
University of Virginia law professor Anne M. Coughlin said it's hard to judge who will benefit from the picking of a jury.
"It's not a science," Coughlin said. "You have stereotypes that you rely on ... but if they can get into that room and listen and work together, anything can happen."
Malvo has been doodling and sketching on a yellow legal pad in court, sometimes drawing the courtroom, and has been actively speaking with his lawyers, often smiling broadly. His attire of crew-neck sweaters over button-down shirts and slacks lets him look young and clean-cut.
On Friday, Judge Jane Marum Roush renewed her decision to bar photography in the courtroom throughout the trial.
Today's opening statements by Horan and Cooley, two courtroom veterans, are expected to last at least an hour each, giving Horan the opportunity to launch into emotional testimony by Franklin's husband.
Horan is likely to preview his contention that Malvo was half of a killing team - two confessions were unveiled during pretrial hearings - and his plan to mesh the evidence he will present with the capital murder charges.
The charges allege that Malvo killed more than one person in three years and that Franklin's killing was part of a scheme to extort $10 million from the government.
Cooley will display maps to try to show the jury that Malvo's mother bounced him from one Caribbean island to another and from one caretaker to another so that he could not form long-term bonds.
Cooley said that made the youth so susceptible to Muhammad's brainwashing that Malvo converted from Seventh-day Adventist to a form of Islam that Cooley said might have been peculiar to Muhammad.
Horan expects to take about a week to present about 50 witnesses. The defense, still trying to finalize travel arrangements for witnesses from Antigua, will call about 70, starting Nov. 21.
Cooley made an unsuccessful bid to dump the jury panel, contending that it eliminated a significant part of the population because people who would not impose a death penalty were ineligible to sit as jurors.
Horan countered that people who would vote only a death sentence were also ruled out because anyone who cannot consider both possible penalties cannot be a juror in a capital case.
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