THE SNIPER CASE

 (These news items covered our criminal defense partner Jon Katz's legal analyses of  the Washington sniper trial, the Sami al-Arian trial, the Kobe Bryant trial, drug defense, child pornography defense, and obscenity defense; and Jon Katz's defense of the Plowshares case.)

Of Justice and Snipers 

NOTE: This article is adapted from a message sent to two activist lawyers' e-mail listserves on October 24, 2002. Therefore, the factual basis for this article is limited to the information publicly available through October 24, 2002. 

Two sniper suspects have been arrested in Montgomery County, MD. I underline, SUSPECTS. I've heard a lot of talk about "catching 'em" ever since the first shooting, and little talk of preserving suspects' and criminal defendants' Constitutional rights. Now comes seeing how much justice will/won't be done from hereonin. Was it just for cops to stop white trucks left and right these past three weeks (the two suspects weren't even in a white vehicle), and then, two mornings ago, go as far as to try to search every car driven by a man near the scene of the last sniper killing? NO. 

Will it be just to execute either of these arrested suspects if found guilty? NO; the death penalty is wrong. 

Interestingly, the Gulf War, which I vehemently opposed and marched against as being premature at the least, trained Timothy McVeigh to kill, and suspect John Allen Muhammad to kill. Does violence beget violence, no matter how much the violent actor thinks s/he's on the side of angelic defense? How much does the U.S. military and the rest of the U.S. warmaking apparatus consider that when training and deploying soldiers? How much reasonable doubt will the arrested suspects' attorneys be able to show? If the suspects say nothing to the cops, and if they told nothing to anybody else, it's all circumstantial evidence, and will the prosecutors be able to rule out that nobody else did any of the killings, and that it wasn't somebody else who exclusively used the suspect's vehicle and the weaponry found inside to do any shootings? 

As we all know, it's in times of danger like with these multiple sniper murders that too many people are willing to give up too much liberty. My own script when the police want a consent search is "No. No. I won't tell you why I'm refusing. I won't tell you why I'm refusing to tell you why I'm refusing. Am I free to leave?" 

The sniper murders were horrendous. There's no question about that. The shooting victims are not honored if the Constitution is not honored during all these investigations and coming prosecutions.

October 24, 2002

Univision Television News, Channel 30 (October 14 2003). Univision television news interviewed partner Jay Marks about the commencement of the sniper trial against John Allen Muhammad in Virginia Beach, Virginia. Univision, which is the Washington area's primary Spanish language television station, repeatedly turns to Jay for legal commentary on topics running from immigration law to criminal law to foreign affairs and individual rights. Jay is fully fluent in Spanish, and has been providing broadcast legal commentary for many years. On this October 14 interview date, both of Marks & Katz's partners provided broadcast interviews on the sniper case (see next). 

WMAL Radio - Washington, DC (October 14, 2003). WMAL's Charlie Warren Show interviewed Jon Katz at length about the commencement of the sniper trial against John Allen Muhammad. Jon's points included: (1)The sniper suspects likely will not get a fair trial because of al the months of intensive and extensive pretrial news coverage; therefore, the alternative is to seek the least unfair trial possible. (2) Suspect John Malvo is taking a big risk by pleading insanity; if he is found insane he may spend the rest of his life incarcerated in a mental hospital; if he is found sane, he will face substantial exposure to the death penalty. (3) The jury selection stage is critical not only for increasing the fairness of the selected jury, but also to provide the defense the opportunity to start trying to persuade the jury towards a favorable verdict. Fortunately, Virginia permits lawyers to question potential jurors directly, whereas this is not required and usually not permitted in the neighboring courts in Maryland and Washington, DC, nor in the federal courts, where the lawyers must submit written questions to the jury. 

-November 11, 2002- Live. Fox News brought back partner Jon Katz to discuss additional aspects of the sniper case. The interviewer focused Jon and a former prosecutor on the events following John Malvo's seven-hour discussion with law enforcement personnel, which included alleged confessions that he committed some of the sniper shootings. Jon confirmed that Mr. Malvo's statements from this discussion cannot be presented to the jury without proof that he lawfully waived his Constitutional right to remain silent. The authorities were obligated to advise Mr. Malvo that he had the right to remain silent and the right to have an attorney present; the police had the obligation to cease all questioning immediately upon Mr. Malvo's choosing to remain silent or to have an attorney present. Unfortunately, Mr. Malvo's statements will not be thrown out of court merely if his guardian or lawyer told the police not to speak with him; those words had to come from Mr. Malvo's own mouth or from his own silence. Mr. Malvo's statements cannot be used against his co-defendant John Muhammed. Mr. Malvo will not likely testify against Mr. Muhammed without assurances that he will not receive a death sentence in any court. A death sentence  is possible without proving that the defendant pulled the trigger, at least if the jury decides beyond a reasonable doubt that the defendant was engaged in an act of terrorism or a continuing criminal enterprise. Jon asserted that Virginia's definition of an act of terrorism is too overbroad to be deemed Constitutional.

-November 3, 2002- Live. Fox News's Page Hopkins asked partner Jon Katz to assume the role of sniper suspect John Malvo's attorney. Jon focused on the importance of Mr. Malvo's distancing himself as far as possible from the killings. Mr. Malvo's defense team should show how isolated he was in the United States, perhaps knowing only his co-defendant John Muhammed, and fearful of deportation if in the United States in violation of the immigration laws. Under that posture, Mr. Malvo would have been afraid to call the police even about any killings he knew to have been caused by Mr. Muhammed. 

Univision Television News, Channel 30 (October 30, 2002). Spanish-language Univision interviewed partner Jay Marks for legal analysis on the Washington-area sniper case. Click here for further information on Jay Marks's news appearances. 

CTV (Canadian Television) (October 25, 2002). Canadian national television news interviewed partner Jon Katz and a criminal law professor about prosecutors' moves against the recently arrested suspects in the Washington-area sniper case. Jon said that information publicly available at that time did not show that a conviction was a slam dunk. Thus far, reports showed the two suspects being found in a car with a weapon used in most of the murders, and a hole that could have been used for shooting, but had not ruled out that only one of the two occupants was involved with the shootings, nor that the suspects were never in the car during the shootings. Jon emphasized that a juror's finding of reasonable doubt of guilt prevents a conviction.  

FOR OUR CRIMINAL LAW NEWS COVERAGE, PLEASE CLICK HERE. 

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Marks & Katz's Wins for Criminal Defense (Each case is different (e.g., with a different set of facts, law, and adjudicators), and this listing is by no means meant to indicate the results Marks & Katz, LLC, will obtain for future clients. Our goal, of course, is for winning advocacy at every turn).

Mounting the Medical Marijuana Defense (October 17, 2003). 

Opposing Embarrassment Sentences (2001)

Opposing Unjust Prosecutions of Political Speech - Marks & Katz's pro bono amicus brief for the DC National Lawyers Guild chapter, in Sassower v. U.S. 

Opposing Unnecessary Fattening of the Criminal Code (March 2006)

The Plowshares (2000)

Pretrial Preparation on the Road to Victory (2005)

Protecting Immigrants in Criminal Court (2003)

The Sniper Case (2002)

When First Amendment Rights Prevent Criminal Convictions (1995)

Your Rights and the Police (ongoing)

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