Sniper-case defense's ordeal

FAIRFAX CITY, Va. - The lawyer steps up to a bouquet of microphones, runs his fingers through his hair, surveys the cameras and looks exasperated.

A few weeks earlier, he had taken on a nationally renowned case in which his client was accused not only of capital murder in Fairfax County, but was a suspected sniper or shooting conspirator in at least 21 shootings, 14 of them fatal.

"All we are asking for is a fair shake," Michael S. Arif was saying after failing last month to persuade a judge to allow him to hire a psychiatrist and experts to help with the defense of his client, Lee Boyd Malvo. "I have a 17-year-old facing death. How much more extraordinary does this have to be?"

To describe the capital murder cases against sniper suspects Malvo and John Allen Muhammad, 41, as extraordinary is an understatement.

The defense's clients are hated around the Capital Beltway - what was the potential victim pool has become the potential jury pool.

The crimes generated a nationwide tickertape of news. U.S Attorney General John Ashcroft and other officials have publicly and adamantly stated that execution is the goal.

It has been widely and repeatedly reported that physical evidence, witnesses and a confession by Malvo link one or both of them to fatal shootings. And each is charged under a new and untested anti-terrorism law. Whatever attorneys do, whatever they say, will be done in a bright light, instantly analyzed and second-guessed.

How do the defense teams - one in Fairfax County for Malvo, the other in neighboring Prince William County for Muhammad - begin to dig out?

Intensely and methodically, say capital defense lawyers.

"The whole dynamics of this case are interesting because there has never been a case quite like it," says Jose F. Anderson, a University of Baltimore law professor and former public defender who has represented high-profile capital defendants in Maryland.

O.J. Simpson's case drew national attention but did not affect many people. Timothy J. McVeigh killed 168 people with his Oklahoma City bomb, but in one brutal act. In the instant news age, experts say, there has never been such a high-profile, emotionally feverish death-penalty case with so many potential complexities as the sniper case.

The U.S. Justice Department determined that the first - perhaps only - trials will take place in Virginia. The state ranks second to Texas in the number of executions - 87, including three juveniles since reinstatement of the death penalty in 1976 - and is widely considered to be pro-prosecution in its court rules and public sentiment.

Malvo is charged in the Oct. 14 death of FBI analyst Linda Franklin, who was shot as she left a Home Depot at Seven Corners. Muhammad is charged in the Oct. 9 fatal shooting of Dean H. Meyers, who was pumping gas off Interstate 66 in Manassas. Defense attorneys and prosecutors in both cases did not return calls seeking comment.

For the defense, a major challenge will be finding an unbiased jury. Instant news, widespread fear and broad post-arrest information mean that court officials may have to cast a net for a larger-than-usual jury pool, Anderson says. Most Maryland capital cases require from 160 to 180 potential jurors, he says.

Washington-area residents were well informed about the case through the media. They felt personally threatened. They hid at home. Their businesses sagged. After-school events were canceled; some days, school was called off entirely. A dark cloud hung over every white box truck. People sat mired in dragnets of traffic, crouched low as they pumped gas and zig-zagged as they dashed from car to store.

The defense probably will explore the possibilities of asking to move the trials from the Washington-Richmond corridor and of seeking a trial delay to let emotions ebb, experts say.

When the trials do begin, the pressure on the attorneys will be intense - it always is in capital cases, defense experts say.

"Every question you didn't ask at trial, every objection you didn't make - when you are thinking about it later on, you think, 'Did I just place that guy on death row?' It's something that if I never have to do it again, I will never miss," says Houston lawyer Christopher L. Tritico, one of McVeigh's 14 attorneys.

And then when it's over, it's not over. The defense attorneys will face constant second-guessing by an ever-widening pool of media consultants, lawyers and observers.

"The first thing that happens is a new set of lawyers comes to grade your papers," Tritico says, referring to appeals. Some of those - such as the case of Kevin Wiggins, on Maryland's death row for more than a decade and pending at the U.S. Supreme Court - focus on whether the defense lawyers made mistakes.

As they prepare for the guilt-innocence part of the case, the defense also must complete work for the sentencing part.

"You are really preparing for two trials," says veteran capital defense attorney Harry Trainor Jr. of Upper Marlboro.

A fine-tooth combing of the evidence by attorneys and hired experts, analysis of the government's case, tests, investigations, pretrial motions and dozens of challenges, usually including a bid to have the death penalty ruled unconstitutional - are part of a detailed process.

"The attorneys will look at every issue - like a statement or an identification procedure, a photo spread, lineup, every search or seizure - and try to determine whether it was done within the Constitution," Trainor says.

Malvo's lawyers say they will try to get his statement - he spent seven hours with police in Fairfax County after being moved there Nov. 7 - thrown out. The grounds could be his youth, lack of attorney as he was whisked out of federal custody and whether police had the right to question him.

Under Virginia court rules, the defense often gets less information from prosecutors to prepare for trial than it does under Maryland law. Northern Virginia defense lawyers refer to it as "trial by ambush."

"You get your best discovery [information from the prosecution about its case] at a preliminary hearing," says Lisa B. Kemler, a criminal defense attorney in Alexandria.

Because Muhammad was indicted he will not have a preliminary hearing to determine whether there is probable cause to go forward with charges. But one is scheduled for Malvo for Jan. 14. That would also be the time for certifying Malvo as an adult and shifting the case from juvenile court to Circuit Court. Muhammad's next hearing will be Thursday, when a judge is expected to set a trial date and hear arguments on a news media request to permit cameras in the courtroom.

Malvo's defense and avoidance of the death sentence, experts say, may hinge on whether evaluations indicate he was under a Svengali-like sway of Muhammad or had a Patty Hearst-like assumption of a captor's traits.

"There's always something there when you get the psychiatrists involved," says David P. Henninger of Bel Air, a veteran capital defense lawyer. "You're not trying the case so much for guilt and innocence but avoiding the death penalty."

With a death sentence looming, lawyers work on developing reasons for sparing their clients' lives, studying mental health and social histories from birth on. They delve into the defendant's past and mind: Was he abused? Undereducated? Overwhelmed? Neurologically damaged? Mentally troubled? What, or who, led him to such troubles?

"People don't like to hear excuses about why people do things, it's often said. But, you know, jurors want to know why people do the things they do," Anderson says. "The why is what turns terrible cases that look like death [sentences] into life sentences."

And then, when all that work is done, the defense has its eye out for one more thing:

Mistakes by the prosecution.