The Center for an Informed America

NEWSLETTER #47
December 8, 2003
The DC Sniper Trial, Part III

[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.)

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