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NEWSLETTER #47
December 8, 2003
The DC Sniper Trial, Part III
(http://www.davesweb.cnchost.com/nwsltr47.html)
(Part I: http://www.davesweb.cnchost.com/nwsltr45.html)
(Part II: http://www.davesweb.cnchost.com/nwsltr46.html)
[Reader response to this series of newsletters has been decidedly mixed.
Some of you have written to offer thanks. Others have wondered, as did
one recent letter writer, why I am "so distracted by this obvious
distraction." To those readers, I pose the following question: Do you
honestly believe that court proceedings that successfully erased the
line between crime and 'terrorism,' establishing the legal precedent
that domestic criminals can be labeled 'terrorists' and treated
accordingly, is just a distraction? Or have you perhaps mistaken John
Allen Muhammad for Michael Jackson?]
The legendary Bushmaster rifle was purportedly found behind the hinged
rear seat of the Snipermobile, but there are lingering questions about
exactly how, and when, ownership of that weapon transferred from
Bullseye Shooter Supply to John Allen Muhammad. Since that rifle has
been referred to as "the most important silent witness in this case,"
those questions are begging for answers -- answers that were not
provided by any of the evidence introduced by the state.
When investigators recovered the rifle, it was loaded and the safety was
disengaged, but whoever had loaded it and disengaged the safety had done
so without leaving prints on the weapon. Muhammad's prints were not
found on either the rifle or the detached telescopic sight. Charles
Colman of the BATFE claimed that Malvo's prints were lifted from the
rifle, but those prints were from a position on the gun inconsistent
with him having loaded or fired it.
Brendan Shea, a DNA expert for the FBI, testified that although
Muhammad's fingerprints were not found on the rifle, his DNA was.
According to Shea, Muhammad's DNA was likely on the rifle's scope as
well. That isn't surprising, I suppose, since Muhammad appears to have
left his DNA everywhere; according to the L.A. Times, "Muhammad's DNA
was recovered at several murder scenes [according to] law enforcement
technicians."
Media reports made little mention of the purported DNA evidence. No
explanation was given for how Muhammad managed to carelessly leave his
DNA scattered over crime scenes. There is no indication that
investigators recovered any blood, saliva or other bodily fluids. None
of Muhammad's hairs were recovered. So where did the alleged DNA come
from? Was Muhammad some sort of modern-day Johnny Appleseed who happily
sprinkled individual strands of his DNA wherever he went?
Malvo allegedly left a hair behind, at a location where artifacts of a
crime were found. The bank bags that had been stolen from victim Paul
LaRuffa were, not unlike the handgun in Alabama, discovered a full month
after the crime was committed. Along with the bags was, inexplicably, a
shirt that contained the hair. The hair was not on the bank bags
themselves, mind you, but on the shirt that was with the bags ... the
shirt that was with the bags that were found, oddly enough, in the woods
directly behind the law offices of Virginia State Senator Thomas V.
Miller.
Investigators discovered that a notch had been cut in the trunk of the
Snipermobile, and that notch, together with the hinged rear seat,
constituted what police creatively described as a "mobile sniper's
nest." Stuffed inside that notch, experts testified, was a glove -- and
that glove, believe it or not, matched another glove that happened to
have been found just two days earlier at the scene of the Johnson
murder.
Holy OJ, Batman! I think we've heard this one before! Somebody get "Mr.
Johnnie" on the phone! If it doesn't fit, they must acquit!
Recovered from a shelf above the rear seat of the Caprice were a number
of books, including a copy of Black Power and two copies of The Tao of
Health, Sex and Longevity. There was no mention of any copies of The
Catcher in the Rye.
Also allegedly recovered from the Snipermobile were ammunition, a pair
of walkie-talkies, an electronic Global Positioning System, and a
notebook computer that had been stolen from victim Paul LaRuffa. FBI
computer experts testified that that computer, in addition to linking
Muhammad to the LaRuffa shooting, provided investigators with an
incriminating electronic trail. John Hair of the FBI informed the jury
that maps of six of the sniper shooting sites were marked with a skull
and crossbones icon.
Those files, of course, could have been created by anyone. They could
have been created by, for instance, an FBI computer expert. Hair claimed
that the files were created by a user identified as "L." That user was
identified elsewhere on the computer as "Muhammad" -- although that
would, one would think, defeat the whole purpose of using the pseudonym.
There were no fingerprints recovered from the computer.
Muhammad and Malvo, it should be noted, did not know that they were
facing imminent arrest, and they were reportedly sleeping when taken
into custody. It would seem then that they had neither reason nor
opportunity to wipe away incriminating fingerprints, and yet neither of
the two items that prosecutors maintained most directly tied the
defendant to the crimes bore his fingerprints, even though both were
allegedly recovered from his car, and both were purportedly handled
frequently.
Of all the witnesses called to present the physical evidence in the
case, perhaps the most dubious of the bunch (excluding, I suppose, the
FBI genetic specialist who reportedly insisted that tiny insect
carcasses placed Muhammad and Malvo at one of the crime scenes) was
Walter A. Dandridge, Jr. of the BATFE.
Dandridge claimed that he was able to determine that the bullets from
eleven of the sniper shootings, as well as the shootings in Alabama and
Louisiana, were fired from the Bushmaster rifle allegedly found behind
the hinged rear seat of the Snipermobile, "to the exclusion of all other
firearms." And Dandridge was able to make that determination despite the
fact that, as he acknowledged, most of those bullets, which impacted at
a velocity of about 2,000 mph, were reduced to shredded fragments.
Not to be deterred, Dandridge managed to match each of the individual
fragments to the Bushmaster rifle. Every one of them. That, at least, is
what he claimed: "I was able to determine that each of the bullets and
bullet fragments were fired from the same firearm." The markings, he
said, "were identical from one scene to the next scene to the next
scene." In addition to making those bold proclamations, according to the
L.A. Times, "Dandridge melded his clinical expertise with the emotional
core of the sniper case, slowly reciting the names of the dead."
When your scientific evidence is in doubt, it is always good to throw in
an emotional appeal.
Challenged by the defense (albeit not very aggressively) on the
improbability of matching so many shredded bullet fragments, Dandridge
responded, bizarrely, that he was able to detect on those fragments a
"sufficient duplication of random patterns."
According to a police spokesman who appeared on an A&E Special Report
that first aired last year, investigators suspected after the first five
or six shootings that a high-powered rifle was being used, but they were
not sure. They were unable, in other words, to initially determine the
type or caliber of ammunition being used -- and yet a year later,
Dandridge was able to definitively state that each and every bullet
fragment was a remnant of a .223-caliber round fired by a single
Bushmaster rifle.
BATFE chemist Edward Bender took the stand to testify that he discovered
residue that strongly indicated that a gun had been fired inside the
trunk of the Snipermobile. Unmentioned by prosecutors, or defense
attorneys, is that FBI and Justice Department documents easily obtained
by the Associated Press reveal that the federal government has known for
more than ten years that Bender is an open racist, well known for his
frequent use of such favored terms as "jungle bunnies" and "niggers."
Bender avoided repercussions for his conduct at the FBI when he was
conveniently transferred to the BATFE, which, I guess, is more tolerant
of such things.
Holy OJ again, Batman! First, we had a pair of matched gloves neatly
connecting the perpetrator to the crime scene, and now we find that a
key prosecution witness has a fondness for using the "N" word! Maybe
someone should look into whether Mark Fuhrman has an alibi for the
morning that Muhammad and Malvo were arrested.
The same FBI and Justice Department documents also reveal that Bender is
known to have "sloppy" work habits that call into question the integrity
of his findings, given the potential for contamination. Associated Press
reporters provided Muhammad's defense team with the documentation of
Bender's racism and questionable work habits, but Shapiro and Greenspun
declined to comment. They also apparently opted not to use the evidence
to impeach the witness.
On Thursday of the third week, prosecutors rolled a full-sized replica
of the Snipermobile's trunk into the courtroom, more for dramatic effect
than anything else. The jury was then, according to the Baltimore Sun,
treated to a one-minute videotape "that showed two police officers the
approximate size of Muhammad and Malvo getting into the actual Caprice.
On the video, the officer representing Muhammad climbs into the back
seat, pulls up the back seat, which is hinged at the top, and crawls
into the trunk. A rifle similar to the Bushmaster was placed in the
trunk, and the officer grabbed the rifle, pointed it through the hole in
the trunk and fired. The video ends with a puff of smoke coming from the
trunk."
Nice touch. The video did not reveal, of course, if the Muhammad
surrogate was able to actually hit anything firing from such an awkward
position, and with such limited visibility.
Prosecutors finished out the week by calling witnesses from Washington
state who were questioned about the level of control that Muhammad
exerted over Malvo, but the witnesses had other interesting
recollections to share with the jury as well.
Albert Archer, the director of a homeless mission where Muhammad
frequently stayed, testified that throughout his thirty-one years as
director of the institution, Muhammad was the only resident to have his
own travel agent. Archer grew so suspicious of Muhammad's frequent
travels that he reported him to the FBI in October 2001, a year before
the sniper shootings.
Robert Holmes, an Army buddy of Muhammad's from Tacoma, testified that
Muhammad had pointedly introduced Malvo to him as "a sniper." Holmes
also said that he saw the Bushmaster rifle in Muhammad's possession. His
buddy, Holmes claimed, had spoken to him about the damage that the rifle
could do, and he had made at least two failed attempts at fashioning a
silencer for it. Muhammad also, Holmes recalled, frequently took his
young partner out to the shooting range.
Holmes informed the jury that he had reported his suspicions about
Muhammad after the shooting of Linda Franklin. On October 15, 2002, he
said, he had first called the FBI to inform them that John Allen
Muhammad and Lee Boyd Malvo, a self-described sniper team, were
traveling together in the Washington, D.C. area, armed with a
scope-equipped Bushmaster .223-caliber rifle. Having received that tip,
FBI agents would have, presumably, run Muhammad's name and quickly
discovered that he had been stopped by police at the scene of a shooting
just a week before. It is rather odd then, to say the least, that
Muhammad did not become a suspect in the case for another full week;
according to Chief Moose, Muhammad and Malvo did not become "potential
suspects of interest" until the afternoon of October 23, just hours
before they were arrested.
On Monday, November 10, prosecutors called a few witnesses whose
testimony was intended to emphasize the public fear provoked by the
shootings. After that, the state rested. Prosecutors had questioned over
one hundred witnesses and introduced more than 400 evidence exhibits.
But none of the testimony and none of the exhibits, as the state
reluctantly conceded, indicated that John Allen Muhammad fired the shot
that killed the one man whose murder he was charged with.
When court resumed on Wednesday (Tuesday was Veteran's Day), Judge
Millette first ruled on a motion to strike the death penalty. Defense
attorneys had entered the motion on Monday, arguing that the state had
not met its burden. Millette sided with prosecutors. In announcing his
decision, the neutral arbiter of justice commented:
"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 fair inference
can be drawn that they perfected their ability to shoot people, and
perfected their ability to shoot them and escape."
Judge Millette, it appears, is not comfortable with the use of the word
"allegedly."
Following that predictable ruling, the jury was brought in and it was
the defense team's turn to step up to the plate. Shapiro and Greenspun
called five witnesses, introduced into evidence a handful of photographs
-- and then called it a day. Spectators were stunned. With their
client's life clearly on the line, the crack defense team rested after
just two-and-a-half hours.
Legal pundits offered any number of rationalizations and apologias for
the failure to mount a defense, but the reality was that Muhammad was
clearly sold out by his defense team (thus illustrating, it should be
noted, the defendant's initial wisdom in choosing to represent himself;
it is unclear why he later reversed that decision).
The almost complete lack of a defense might be somewhat more
understandable had the defense team challenged the state's case as it
was being presented. But that didn't happen. As Greenspun acknowledged,
"We asked few or no questions of most of the witnesses. It just would
have been inappropriate to cross-examine many of these people."
Greenspun was certainly correct in that assessment. What he should have
added, however, was that it was not only inappropriate to cross-examine
most of the state's witnesses, it was inappropriate for prosecutors to
have called them as witnesses in the first place, and it was
inappropriate for the judge to have allowed them to be called. Most of
the witnesses offered testimony that was rich in prejudicial value, but
completely devoid of probative value, so there was nothing to challenge
them on through cross-examination.
But that does not excuse the defense team from presenting a rigorous
defense of their client, especially given that the state's case was
built entirely on a house of cards. But that, perhaps, was precisely why
'defense' attorneys avoided posing any direct challenge to the case
assembled by prosecutors, choosing instead to call a few token witnesses
to knock down a few straw men.
Jade Bolling, a motel manager, testified that on the night of October
23, 2002, she threw Malvo out of a room in her motel that he hadn't paid
for. She escorted him all the way out to the street, she recalled, and
never saw Muhammad (the two were arrested together just hours later).
Bolling's testimony was supposed to challenge the notion that the sniper
team was inseparable -- but that was of questionable value considering
that an overwhelming majority of the state's own witnesses had reported
seeing the suspects separately, including all of the police officers
called as witnesses.
Private investigator John Nenna cast doubt on some of the civilian
sightings of the Snipermobile, particularly the claims made by Gerald
Driscoll and Patricia Bradshaw. But those witnesses had largely
discredited themselves already.
There were, to be sure, any number of things that the defense could have
done. They could have called an independent ballistics expert to
challenge the ridiculous claims made by Dandridge. They could have
called an independent DNA expert to challenge the state's phantom DNA
evidence. They could have called an independent chemist to challenge the
claims made by Bender. And while they were at it, they could have
subpoenaed officials from the Justice Department to discuss how Bender's
findings were tainted by his racism and sloppy work habits. They could
have retained the services of a few professionally trained snipers to
test the theory that a human target could be reliably picked off from
hundreds of yards away with a shot fired through a notch in the trunk of
a Caprice. They could have called, because he might have had an
interesting story to tell, Matthew Dowdy. They could have called the
owner of Bull's Eye Shooter Supply, Brian Borgelt, to have him explain
how the Bushmaster rifle, and more than two hundred other weapons,
disappeared from his store in just the last two years. They could have
hired an independent computer expert to take a look at Paul LaRuffa's
notebook.
The defense team could have, in other words, actually defended their
client. But they chose not to. They also chose not to call as a witness
the man who played a starring role during the sniper shootings, and yet
was strangely absent from Judge Millette's courtroom: Chief Charles
Moose.
* "Chief Moose, I have a few questions for you that, admittedly, are
not directly relevant to these proceedings, but since prosecutors have
opened the door to soliciting irrelevant testimony, and since we have
you under oath, I really have to ask: Are you absolutely certain that
you and the defendant, John Allen Muhammad, never crossed paths during
the two years (1994-1995) that the two of you were assigned to the same
Oregon Air National Guard Base in Portland?"
* "As the commander since May 2000 of the D.C. Air National Guard's
security forces squadron at Andrews Air Force Base, tasked with
protecting and maintaining a fleet of F-16 fighter jets, do you have any
thoughts that you would like to share with us today on why none of those
fighter jets were scrambled in response to the 'terrorist' attacks of
September 11, 2001?"
* "We understand that the Ph.D. program that you attended at
Portland State University was largely funded by a controversial
multi-million dollar grant from the Turkish government. We also
understand that one of the professors in that Ph.D. program was a
self-described former Islamic terrorist. After receiving your Ph.D. (and
rather quickly, we might add), we understand that you were appointed
chief of the Portland Police Department by Mayor Vera Katz, whose former
intern, October Martinique Lewis, was just sentenced to a three-year
prison term for her involvement with an allegedly pro-Taliban, Portland
'sleeper cell.' Could you please clarify for us, Chief Moose, whether
you have ever been involved in any U.S. government-sponsored covert
operations aimed at manufacturing phantom enemies through the creation
of 'Islamic terrorist cells'? And if so, could you tell us if John Allen
Muhammad was similarly involved in such operations?"
Richard Conway delivered the state's closing argument. He instructed the
jury to recall the testimony of Spicer (the sniper). "It takes two,"
Conway intoned, "It comprises one deadly killing machine, but it takes
two." Court reporters continued not to notice the incongruity of
prosecutors' repeated assertions that two equals one, and the fact that
the state chose to prosecute Muhammad and Malvo separately.
Greenspun closed for the defense. During his two hour monologue, he
reportedly conceded that he could see how the jury might convict his
client of murder, but not, he argued, of capital murder. Needless to
say, with his own attorney arguing for conviction, Muhammad's chances
for an acquittal were seriously diminished.
But Judge Millette apparently did not think that the deck had been
sufficiently stacked -- so he proceeded to deliver jury instructions
that were wildly inappropriate and obviously designed to virtually
guarantee a conviction. Millette told the jury that in order to convict,
they need not find that Muhammad had actually pulled the trigger, only
that he was an "immediate perpetrator." And in a surprisingly open
acknowledgment that prosecutors had failed to credibly link the
Bushmaster rifle to the defendant, Millette instructed the jury that
they could consider the Snipermobile to be a murder weapon! The
operative strategy seemed to have been: if you can't link the defendant
to the murder weapon, then find something that you can link him to, and
then declare whatever that is to be the murder weapon.
And with those instructions, the jury was sent off to begin
deliberations, and then excused for the day just fifteen minutes later.
The next day was a Friday, which meant it was a half-day in Judge
Millette's courtroom. The jury spent the four hours deliberating. By the
end of the half-day, Millette was already growing impatient, as was
evident in his request to the attorneys: "If we could get this thing
done by Thanksgiving, I'd appreciate it."
Since on Millette's calendar the Thanksgiving holiday apparently begins
on Tuesday rather than Thursday, the judge was allocating exactly
five-and-a-half court days for the jury to finish deliberating
Muhammad's guilt, and for the state and the defense to then present
their respective cases in the penalty phase of the trial, and for both
sides to deliver their closing arguments, and for the jury to then
deliberate the apparently trivial issue of whether John Allen Muhammad
should be executed by the state of Virginia.
The Los Angeles Times reported that Millette "hinted Friday that he
expected a swift verdict, telling jurors they could go all day -- 'if
you need that much time.'" He did not add, although he may as well have,
"Come on, people! Can't you all see how guilty this guy is?"
Millette's message apparently got through; after just two-and-a-half
hours of additional deliberations on Monday morning, the jury reached a
verdict. In just six-and-a-half hours, they had reviewed over 400
exhibits and the testimony of over 100 witnesses. Not bad for (not
quite) a day's work.
Muhammad, to the surprise of no one, was found guilty on all counts.
(In the final installment: strangeness in the jury room, sentencing,
curious parallels, and what it all means.)
(Permission is hereby granted for this material to be widely distributed
and reposted, provided that the content is not altered in any way.)
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