VIRGINIA BEACH, Va. - To send John Allen Muhammad to death row, jurors here must weigh two factors: what danger the convicted sniper killer might pose in the future and whether the crimes he committed were "outrageously or wantonly vile."
That language has often been challenged by capital defense lawyers in Virginia, who contend that the concept of "vileness" in the state's death penalty statute is overly broad. But while similar language in other states has faced scrutiny by appeals courts, it consistently has been upheld in Virginia.
"I'll tell you that the Virginia Supreme Court, if you look at their cases, they stretch that definition - it's unbelievably elastic," said Gerald T. Zerkin, a criminal defense attorney in Richmond. "It is the rare case that can't fit into the vileness definition."
The jury in Muhammad's case could begin deliberations today about what punishment to recommend for the 42-year-old Army veteran. The panel convicted Muhammad this week on two counts of capital murder in connection with the slaying of Dean H. Meyers on Oct. 9 last year at a gas station in Northern Virginia.
Jurors will face two options. They could recommend that Muhammad be put to death or that he be sentenced to life in prison without the possibility of parole. Under state law, Judge LeRoy F. Millette Jr. could reduce a jury's recommended death sentence to a life sentence. But he cannot hand down a death sentence if the jury recommends life.
In a note to Millette yesterday, jurors sought guidance on what factors they should be considering as they listen to testimony in the trial's penalty phase. He told them to listen to all of the evidence and assured them that they would receive more detailed instructions before they begin deliberations.
But defense attorneys in Virginia have long contended that the standard instructions for jurors at the penalty phase of a capital case offer scant guidance. Jurors are told to determine whether the government showed that the killing was "outrageously or wantonly vile, horrible or inhuman" in that it involved torture, depravity of mind or "aggravated battery" of the victim.
At issue in the case of Muhammad - and, if convicted, his alleged teen-age accomplice, Lee Boyd Malvo - will be how those definitions fit within the sniper attacks that spread fear across the Washington region last fall and left 10 people dead and three wounded.
As early as May, defense attorneys for Muhammad contended that there is no evidence to prove that the crimes fall within the legal definition of "vileness," noting that there was no torture and no excessive force connected with the deadly shootings.
Prosecutors have countered that the method in which the random shootings were carried out suggests depravity of mind. They pointed specifically to the shooting hole created in the trunk of the Chevrolet Caprice, which allowed the suspects to fire and then slip away unseen.
"To sit at a safe distance, to pick out a wholly innocent victim, to kill that victim for no better reason other than he was at the wrong place at the wrong time, can only be described as the act of a depraved mind," prosecutors said in court filings.
Government lawyers also have said that the high-powered Bushmaster semiautomatic rifle used in the killings was evidence that the suspects were "bringing to bear more capacity to kill than is necessary." And they said the randomness of the shootings had a "torturous effect" on the population.
In death penalty deliberations, jurors in Virginia must consider a defendant's future dangerousness in addition to the question of the crime's vileness. Either aggravating factor can be grounds for a death sentence, although a jury can find that there is future dangerousness or that a crime was particularly vile but not impose a death sentence.
This year, Virginia Gov. Mark R. Warner granted a three-week reprieve for death row inmate Bobby Wayne Swisher so his attorneys could argue that Swisher was entitled to a new sentencing hearing because the jury that recommended a death sentence was not told that a life sentence without parole also was an option.
The sentencing form used by that jury later was ruled invalid by the Virginia Supreme Court in another case. But the court declined to hear Swisher's appeal, saying the deadline for making such an argument had passed. He was executed in July.
Zerkin, the Richmond lawyer, said the state's appeals courts also have shown little patience with arguments that the vileness factor is too vague. The result, he said, is a gray zone for jurors on a key question in capital punishment - an issue where the U.S. Supreme Court has said states have a responsibility to narrowly tailor their laws and to apply them in a consistent way.
"The Virginia sentencing statute I've always described as a big pot - and when you read the verdict form, or the one we have traditionally used, you just dump all the stuff into the pot and say [to jurors], 'Go ahead and figure it out,'" he said.
In Maryland, jurors weighing a death sentence must consider a list of highly specific aggravating factors - that the victim in a killing was a police officer, for instance, or that the killing was committed along with another violent felony such as a kidnapping or a rape.
The U.S. Supreme Court's leading ruling on statutory aggravators in death penalty cases comes from a 1980 case, Godfrey vs. Georgia, where a death row inmate challenged as unconstitutionally vague that state's statute allowing capital punishment if an offense was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim" - language identical to Virginia's.
The defendant had shot to death his wife of 28 years and his mother-in-law after a domestic argument. He admitted the killings and was convicted. In recommending a death sentence, the jury found that the double slaying met the standard for "vileness."
On appeal, defense lawyers argued that there was no evidence of torture or aggravated battery in the case because each victim died from a single bullet. The court agreed and sent the case back for a new sentencing proceeding.
"A person of ordinary sensibility could fairly characterize almost every murder as 'outrageously or wantonly vile, horrible and inhuman,'" the court said in its ruling. "There is no principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not."