VIRGINIA BEACH, Va. - Attorneys began - and ended - their defense of John Allen Muhammad yesterday morning by attacking small parts of the state's case without challenging the heart of the evidence against the alleged mastermind of last fall's sniper shootings.
Closing arguments are scheduled for this morning, and the jury is expected to begin deliberations on Muhammad's guilt or innocence this afternoon. If he is found guilty of capital murder, the same jury will sentence Muhammad to life in prison without parole or death by lethal injection.
Muhammad's lawyers said last week that they expected their case to take two or three days. But yesterday, they called just five witnesses and their case lasted less than three hours. Outside court, the lawyers hinted that their strategy had changed within the past week.
"You have to keep an open mind and remain fluid and make decisions based on the circumstances as they're presented," said defense attorney Peter D. Greenspun. He would not say whether they had planned to put Muhammad on the stand; in a bench conference, Muhammad said he knowingly waived his right to testify on his own behalf.
At the start of the day, Judge LeRoy F. Millette Jr. denied defense motions to strike the two capital murder charges against Muhammad for lack of evidence. The lawyers said there was "zero evidence" that Muhammad, 42, fired the shot that killed Dean H. Meyers on Oct. 9, 2002, at a gas station near Manassas, Va.
But Millette said the state need only prove that Muhammad was an "immediate perpetrator" of the killing, not the triggerman.
"It is clear there is evidence to support the commonwealth's position that Mr. Muhammad is an immediate perpetrator," Millette said. "The inference that
can be drawn is that [Lee Boyd] Malvo and Mr. Muhammad were involved in not random shootings but a purposeful series of shootings leading up to the extortion demands."
A note left in the woods near one of the last sniper shootings demanded $10 million for an end to the killings. The note was found in a bag bearing the DNA of Malvo, the teen-age co-defendant whose own trial began this week in nearby Chesapeake, Va.
Millette also said the Meyers shooting - for which Muhammad is on trial here - cannot be viewed as an isolated incident but must be seen in the context of the 15 other shootings in September and October last year that prosecutors have linked to Muhammad and Malvo.
"A fair inference can be drawn that they perfected their ability to shoot people and perfected their ability to shoot them and escape," Millette said, adding that Muhammad's car was key to doing so. "It took two people to position that vehicle in situations so that they could complete the shooting and escape undetected."
The judge's comments were made before the jury was brought into the courtroom. When they were seated, they heard from five defense witnesses whose testimony was intended to discredit the accounts of prosecution witnesses who said they saw Muhammad or his car near three shootings.
Prosecution witness Patricia Bradshaw had said she was eating breakfast at a Waffle House in Fredericksburg, Va., shortly before Kenneth H. Bridges was killed Oct. 11, 2002, at a nearby gas station. Bradshaw testified that she saw Muhammad's Chevrolet Caprice drive past the Exxon station and into a hotel parking lot on the other side of the station from the Waffle House.
Defense investigator John Nenna showed photos yesterday that he took from the Waffle House's front booth toward the hotel, which appeared barely visible. He testified that he could hardly see traffic on the street next to the Exxon station and that the distance from the Waffle House to the street where Bradshaw said she saw Muhammad's car was 297 feet.
Nenna also took photographs outside the Bowie middle school where Iran Brown was shot Oct. 7, 2002. Prosecution witness Gerald Driscoll had said he was stopped at an intersection outside the school one hour before the shooting. He said he saw Muhammad and Malvo in the Caprice at that intersection.
But Nenna, who re-created the scene on Oct. 7 this year, said it would have been impossible to see into the Caprice from Driscoll's position at the intersection. He also said the sun had just risen at the time that Driscoll said he saw sunlight illuminating Muhammad's face.
In what was perhaps an effort to undercut the close ties prosecutors allege between Muhammad and Malvo, a defense witness testified that she saw Malvo by himself in a hotel room the day before the two suspects were arrested. The hotel was the Best Value Inn along Interstate 95 in Prince William County, Va.
"A housekeeper told me there was a man in one of the rooms, and I told her to kick him out because the room wasn't paid for," said Jade Bolling, the inn's manager. She said she then decided to take care of it herself. "I talked to him in the hallway and told him that he had to pay for the room."
She said that she escorted Malvo to the lobby and that he walked out of the hotel toward U.S. 1 by himself. She said she did not see Muhammad.
Muhammad is charged with two counts of capital murder in the death of Meyers, a 53-year-old civil engineer from Gaithersburg. One count is under Virginia's anti-terrorism law, which makes it a capital offense to kill someone while in the commission of an act of terrorism. Prosecutors say the fear caused by the killings and the demand for $10 million constitute terrorism.
The other count is under Virginia's multiple-killings law, which makes it a capital offense to kill more than one person in a three-year period. That law requires proof that the defendant was a "direct participant" in the crime. Defense lawyers have argued that the prosecution has fallen short of that standard, even assuming Malvo was the shooter.
"Mr. Malvo has the opportunity to say, 'Wait a minute. This is crazy. I'm not doing this,'" Greenspun said. "You have two people in the car together, and one has the absolute ability to stop this."
The defense has subpoenaed about a dozen witnesses from Baton Rouge, La., where Muhammad grew up, and Washington state, where he raised a family and ran a business. None of those witnesses took the stand yesterday. They are expected to appear during the sentencing phase of the trial, should Muhammad be convicted.
Looking toward that part of the trial, the defense won the right yesterday to put on the stand a mental health expert who would testify about Muhammad's future dangerousness. The expert is expected to say that based on Muhammad's background, there is little chance he would attack other inmates or guards in prison.
Also yesterday, lawyers and the judge worked out the wording of the instructions the jury will be given before closing arguments. The defense wanted to instruct the jurors that they must find that Muhammad was the "trigger man" to convict him of capital murder under the multiple killings law. But prosecutors wanted to use the phrase "joint participant."
Millette sided with the prosecutors. He also agreed with prosecutors in the wording of instructions regarding the terrorism law. Jurors will be told that Muhammad can be convicted of capital murder if the evidence shows someone else committed the killings under the "direction or order" of Muhammad.