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CNN Live Today

Sniper Trials: Insight & Analysis

Aired November 18, 2003 - 11:06   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


DARYN KAGAN, CNN ANCHOR: As jurors weigh life and death on one trial, and lawyers argue guilt or innocence in another, let's get insight from our legal analyst Jeffrey Toobin. He's joining us by phone from New York.
Jeff, good morning once again.

JEFFREY TOOBIN, CNN LEGAL ANALYST: Busy day.

KAGAN: It is a busy day. First, let's talk about the penalty phase of the Muhammad trial. What can defense attorneys do to try to save his life?

TOOBIN: Boy, this is not an easy defense, because unlike Malvo, who is, you know, a kid and presents certain surface sympathetic issues, Muhammad has none of that.

Basically, the defense focused on the fact that he comes from a very deprived background. His mother died when he was just -- when he was very young. He was raised by a sibling. His father wasn't in the picture. He was poor. That's about it. They don't really have much else to work with.

And they do have the fact that he was not apparently the triggerman on these murders, although that has not been definitively established. It's a very tough sell to a jury that has already conflicted him and has already said during jury selection that they could impose the death penalty.

KAGAN: Let's look at the difference between the two trials. With Lee Boyd Malvo, there's a 911 tape that was played to the Muhammad trial, but the judge in the Malvo trial saying she's not going to allow that to be played.

TOOBIN: It is unusual to have the same piece of evidence ruled admissible in one trial, inadmissible in the other. I don't think ultimately it will have that much significance, because the murders here are so awful and there are so many of them, that one 911 call is not going to be the determining factor about whether there's a conviction or not. But the real big difference between the two trials is that Malvo is essentially not contesting that he was involved in these murders. He's simply saying that he was brainwashed, and insane because of his relationship with Muhammad. That's the real difference.

KAGAN: It would be kind of hard to do that, since with Malvo, as opposed to Muhammad, there's physical evidence, and those five hours of confessional tapes that he made with the detectives in Fairfax County.

TOOBIN: It would be very difficult for him to deny involvement.

Interestingly, there was interviews with the jurors today by the judge in the Malvo case, how many of them knew about the verdict in the Muhammad case, and Two jurors said they did know about the verdict, but they said they could set that aside in their consideration. That's one reason why I think a lot of judges would have tried to put some space between the two trials. But Virginia believes in speedy trials, and they're getting to them.

KAGAN: Another interesting part about it being in Virginia, this terrorism law that both are charged with, this violation. In the Muhammad case, prosecutors talk about terror of the population at charge. In the Malvo case, they're making it look as if it was more aimed at the government. Why would there be that difference in tactic?

TOOBIN: Well, it is in part, because this terrorism law is so new and prosecutors and judges simply don't know exactly how courts will interpret it. This was a law passed in the wake of 9/11. There have been, as I understand it, no prosecutions other than Muhammad and Malvo. So the two prosecutors are taking different tact in how to apply the law. It could have implications down the road in appeals courts in how they treat convictions, if there are two sets of convictions.

KAGAN: Jeff, thanks again for doing double duty.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com






Aired November 18, 2003 - 11:06   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
DARYN KAGAN, CNN ANCHOR: As jurors weigh life and death on one trial, and lawyers argue guilt or innocence in another, let's get insight from our legal analyst Jeffrey Toobin. He's joining us by phone from New York.
Jeff, good morning once again.

JEFFREY TOOBIN, CNN LEGAL ANALYST: Busy day.

KAGAN: It is a busy day. First, let's talk about the penalty phase of the Muhammad trial. What can defense attorneys do to try to save his life?

TOOBIN: Boy, this is not an easy defense, because unlike Malvo, who is, you know, a kid and presents certain surface sympathetic issues, Muhammad has none of that.

Basically, the defense focused on the fact that he comes from a very deprived background. His mother died when he was just -- when he was very young. He was raised by a sibling. His father wasn't in the picture. He was poor. That's about it. They don't really have much else to work with.

And they do have the fact that he was not apparently the triggerman on these murders, although that has not been definitively established. It's a very tough sell to a jury that has already conflicted him and has already said during jury selection that they could impose the death penalty.

KAGAN: Let's look at the difference between the two trials. With Lee Boyd Malvo, there's a 911 tape that was played to the Muhammad trial, but the judge in the Malvo trial saying she's not going to allow that to be played.

TOOBIN: It is unusual to have the same piece of evidence ruled admissible in one trial, inadmissible in the other. I don't think ultimately it will have that much significance, because the murders here are so awful and there are so many of them, that one 911 call is not going to be the determining factor about whether there's a conviction or not. But the real big difference between the two trials is that Malvo is essentially not contesting that he was involved in these murders. He's simply saying that he was brainwashed, and insane because of his relationship with Muhammad. That's the real difference.

KAGAN: It would be kind of hard to do that, since with Malvo, as opposed to Muhammad, there's physical evidence, and those five hours of confessional tapes that he made with the detectives in Fairfax County.

TOOBIN: It would be very difficult for him to deny involvement.

Interestingly, there was interviews with the jurors today by the judge in the Malvo case, how many of them knew about the verdict in the Muhammad case, and Two jurors said they did know about the verdict, but they said they could set that aside in their consideration. That's one reason why I think a lot of judges would have tried to put some space between the two trials. But Virginia believes in speedy trials, and they're getting to them.

KAGAN: Another interesting part about it being in Virginia, this terrorism law that both are charged with, this violation. In the Muhammad case, prosecutors talk about terror of the population at charge. In the Malvo case, they're making it look as if it was more aimed at the government. Why would there be that difference in tactic?

TOOBIN: Well, it is in part, because this terrorism law is so new and prosecutors and judges simply don't know exactly how courts will interpret it. This was a law passed in the wake of 9/11. There have been, as I understand it, no prosecutions other than Muhammad and Malvo. So the two prosecutors are taking different tact in how to apply the law. It could have implications down the road in appeals courts in how they treat convictions, if there are two sets of convictions.

KAGAN: Jeff, thanks again for doing double duty.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com