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Defense has challenge in averting death row

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VIRGINIA BEACH, Va. - As they try to persuade a jury to spare their client's life, attorneys for convicted sniper killer John Allen Muhammad must do so without what typically is the centerpiece of a death penalty defense: evidence of the defendant's troubled mental state.

Muhammad, 42, met with psychiatric experts hired by his attorneys for more than 60 hours over the spring and summer, but a judge ruled that none of the information gleaned from those sessions can be used because he refused to meet with a forensic psychiatrist for the government.

That decision, legal experts say, left Muhammad's court-appointed lawyers with a greatly reduced hand as they entered the penalty phase of his trial. Jurors convicted him yesterday on two counts of capital murder and must consider whether to recommend a sentence of death or life in prison.

"I would think the kind of mitigating evidence might be a little like [Oklahoma City bomber] Timothy McVeigh - he was basically a good person who because of his experiences in the Army or losing his kids or whatever, he might have gone a little haywire," said Welsh S. White, a law professor and death penalty expert at the University of Pittsburgh. "But if you don't have a psychiatric witness, that is going to be very hard to do."

Opening the penalty phase yesterday, defense attorney Jonathan Shapiro played down the absence of mental health testimony. He told jurors that "there won't be any psychiatrist here to put this together for you. I don't think you need one."

Instead, Shapiro said, defense attorneys would present friends, neighbors and other acquaintances of Muhammad's who would testify that he is a good person who deserves to live. Defense attorneys also have said they plan to present evidence of "abuse and neglect" in Muhammad's childhood in Louisiana and said they might call a psychiatric expert, though only to offer statistical testimony about the likelihood of a prisoner serving a life sentence to commit another violent crime.

Shapiro told jurors yesterday: "Your decision will put John Muhammad in a box of one kind or the other - one is made of concrete, and one is made of pine."

In Virginia, jurors weighing a death sentence are instructed to consider a defendant's future dangerousness as well as the "vileness" of the crime at issue.

Michael A. Millemann, law professor at the University of Maryland, said the defense can make strong use of nonexpert witnesses to complete the picture of Muhammad's life before the shootings - an important factor in building a case for mitigating circumstances that could offset aspects of the crime that call for a death sentence.

The work of lawyers to prepare such mitigating evidence has been under increasing scrutiny. Ruling in the case of former Maryland death row inmate Kevin Wiggins this year, the U.S. Supreme Court said defense attorneys in that case had not done an adequate job of conducting and presenting background research that might have helped spare his life. The court ordered a new sentencing for Wiggins.

"I think you've got to rely on calling witnesses, lay witnesses, who can testify to acts, things that he did or said that were patently crazy," Millemann said. "I think he's a tough client, obviously. ... [But] juries are extremely skeptical of psychological testimony, even under the best circumstances."

Attorneys for Muhammad did get one key break yesterday. While prosecutors had a number of victims prepared to testify, Judge LeRoy F. Millette Jr. ruled that prosecutors would be allowed to introduce so-called "victim impact testimony" only from the family of Dean H. Myers, who was killed by a shot to the head Oct. 9 last year at a gas station near Manassas.

Millette also ruled that prosecutors could not present evidence about anti-American remarks alleged to have been made by Muhammad. Prosecutors can, however, present evidence about anti-Semitic remarks Muhammad is alleged to have made and a shooting at a Washington state synagogue that investigators link to the Army veteran.

Muhammad was on trial here in the shooting of Myers, although prosecutors presented detailed evidence of 16 shootings as they sought to secure a conviction under Virginia law that makes it a capital offense to kill more than one person in a three-year period.

The prosecution's case included testimony from witnesses such as the daughter of slain FBI analyst Linda Franklin, who was shot as she loaded packages in a car outside a Fairfax County Home Depot store.

Kate Hannum recalled for jurors the middle-of-the-night phone call from her stepfather, William Franklin, telling her that her mother was dead: "I remember screaming and throwing myself on the bed. That's all I could do, was scream."

Shapiro had asked Millette to limit the victim statements, trying to prevent an emotional overload as jurors weigh the death penalty.

"If the court were to allow victim impact testimony of other crimes, then the potential range of victims and victim impact testimony is endless," he said.

Prosecutor Richard A. Conway told jurors yesterday that everything they heard during the guilt phase was fair game for consideration now. He said that "even if you didn't hear another soul testify for the commonwealth," they had enough evidence to vote for the death penalty.

Sun staff writer Stephen Kiehl contributed to this article.

Copyright © 2014, The Baltimore Sun
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