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Odds Slim Judge Will Overturn Muhammad Verdict

Aired November 24, 2003 - 14:36   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.


MILES O'BRIEN, CNN ANCHOR: As we've been reporting, convicted sniper John Allen Muhammad is facing a jury recommendation of death in the first trial arising from last year's killing spree in the D.C. suburbs. A judge will have the final word and he's given himself almost three months to think about it.
While we're waiting, we'll bring in CNN legal analyst Jeffrey Toobin. Jeff, good to have you with us.

JEFFREY TOOBIN, CNN LEGAL ANALYST: Hi, Miles.

O'BRIEN: First of all, is it likely the judge will overturn the jury's feelings in all this?

TOOBIN: It's extremely unlikely. It's virtually certain that he will ratify what the jury said and Muhammad will be sentenced to death.

O'BRIEN: Why wait three months just to rubber stamp?

TOOBIN: He will want to get briefs from both sides. This is a time for both sides to catch their breath. Muhammad isn't going anywhere. Basically all that will happen is the sentence will be pronounced by the judge, then the appeals process, which will begin.

And the average length of time between sentence and execution in the state of Virginia is about 7.2 years, which is fairly quick by death penalty standards.

O'BRIEN: Let's talk about how this verdict, this trial, might have an impact on the other sniper trial. Not too far away, Lee Boyd Malvo, the alleged accomplice of the D.C. sniper John Allen Muhammad. First of all, how much does that jury know about what we've been talking about today?

TOOBIN: The jury has been instructed to stay away from press coverage. But in the course of the Malvo trial Muhammad was convicted in the guilt phase. Two jurors came forward and said, We heard about this. The judge then asked those Malvo jurors, Can you put that information aside?

I would assume a similar number or more would know that Muhammad had been sentenced to death. So the question will be, can those Malvo jurors keep Muhammad's sentence out of their minds?

O'BRIEN: I'm trying to get inside the heads of a jury. Getting into dangerous territory here. But nevertheless, you could make a case that this actually helps Malvo's defense in the sense that their defense is that Muhammad was the mastermind, the Svenghali, if you will. And a jury not far away has in fact said he was the mastermind of all of this, and therefore the next step is just to prove that the younger Malvo was under his spell.

TOOBIN: That would be the theory of the defense if the defense had to have that fact before the jury. The idea that, Look, we said he was the mastermind, the other jury said he deserved the death penalty. Thus, we were right.

That's, frankly, I think a less likely scenario. I think what's more likely is that if the jury knew that Muhammad had been sentenced to death, the Malvo jury would say, This crime was so awful, one guy got the death penalty, they're both more or less equally culpable, give them both the death penalty.

If I'm the defense lawyers I want the Muhammad verdict and sentence kept as far away as possible.

O'BRIEN: Now that Muhammad has been convicted, can he be compelled to testify in the Malvo case? In other words, do you have a Fifth Amendment right against incriminating yourself even if you've been convicted of the crime?

TOOBIN: You know, counselor, you came up with a great question. I was struggling with that one.

I think the answer is no, he cannot be compelled to testify. The theory that says he should be compelled to testify is that since he's already been sentenced to death, he has no more exposure, and thus he can't incriminate himself any more than he's already been incriminated.

But I think given the fact that there are potentially other criminal prosecutions out there for Muhammad, prosecutions in Maryland, Alabama, federal courts, also this conviction could be overturned, Muhammad would not be forced to testify.

I don't think any judge would say, you've given up your Fifth Amendment right or lost it at this point. I think the Malvo lawyers will have to proceed in this case without Muhammad as a witness.

O'BRIEN: All right, Jeffrey Toobin, who called me "counselor," thank you. Jeffrey Toobin, Esquire.

TOOBIN: I don't know if that's an insult or a compliment. But given what people think of lawyers...

O'BRIEN: When you're a journalist, it's an upgrade.

TOOBIN: For you it was a compliment.

O'BRIEN: Thank you very much.

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 24, 2003 - 14:36   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
MILES O'BRIEN, CNN ANCHOR: As we've been reporting, convicted sniper John Allen Muhammad is facing a jury recommendation of death in the first trial arising from last year's killing spree in the D.C. suburbs. A judge will have the final word and he's given himself almost three months to think about it.
While we're waiting, we'll bring in CNN legal analyst Jeffrey Toobin. Jeff, good to have you with us.

JEFFREY TOOBIN, CNN LEGAL ANALYST: Hi, Miles.

O'BRIEN: First of all, is it likely the judge will overturn the jury's feelings in all this?

TOOBIN: It's extremely unlikely. It's virtually certain that he will ratify what the jury said and Muhammad will be sentenced to death.

O'BRIEN: Why wait three months just to rubber stamp?

TOOBIN: He will want to get briefs from both sides. This is a time for both sides to catch their breath. Muhammad isn't going anywhere. Basically all that will happen is the sentence will be pronounced by the judge, then the appeals process, which will begin.

And the average length of time between sentence and execution in the state of Virginia is about 7.2 years, which is fairly quick by death penalty standards.

O'BRIEN: Let's talk about how this verdict, this trial, might have an impact on the other sniper trial. Not too far away, Lee Boyd Malvo, the alleged accomplice of the D.C. sniper John Allen Muhammad. First of all, how much does that jury know about what we've been talking about today?

TOOBIN: The jury has been instructed to stay away from press coverage. But in the course of the Malvo trial Muhammad was convicted in the guilt phase. Two jurors came forward and said, We heard about this. The judge then asked those Malvo jurors, Can you put that information aside?

I would assume a similar number or more would know that Muhammad had been sentenced to death. So the question will be, can those Malvo jurors keep Muhammad's sentence out of their minds?

O'BRIEN: I'm trying to get inside the heads of a jury. Getting into dangerous territory here. But nevertheless, you could make a case that this actually helps Malvo's defense in the sense that their defense is that Muhammad was the mastermind, the Svenghali, if you will. And a jury not far away has in fact said he was the mastermind of all of this, and therefore the next step is just to prove that the younger Malvo was under his spell.

TOOBIN: That would be the theory of the defense if the defense had to have that fact before the jury. The idea that, Look, we said he was the mastermind, the other jury said he deserved the death penalty. Thus, we were right.

That's, frankly, I think a less likely scenario. I think what's more likely is that if the jury knew that Muhammad had been sentenced to death, the Malvo jury would say, This crime was so awful, one guy got the death penalty, they're both more or less equally culpable, give them both the death penalty.

If I'm the defense lawyers I want the Muhammad verdict and sentence kept as far away as possible.

O'BRIEN: Now that Muhammad has been convicted, can he be compelled to testify in the Malvo case? In other words, do you have a Fifth Amendment right against incriminating yourself even if you've been convicted of the crime?

TOOBIN: You know, counselor, you came up with a great question. I was struggling with that one.

I think the answer is no, he cannot be compelled to testify. The theory that says he should be compelled to testify is that since he's already been sentenced to death, he has no more exposure, and thus he can't incriminate himself any more than he's already been incriminated.

But I think given the fact that there are potentially other criminal prosecutions out there for Muhammad, prosecutions in Maryland, Alabama, federal courts, also this conviction could be overturned, Muhammad would not be forced to testify.

I don't think any judge would say, you've given up your Fifth Amendment right or lost it at this point. I think the Malvo lawyers will have to proceed in this case without Muhammad as a witness.

O'BRIEN: All right, Jeffrey Toobin, who called me "counselor," thank you. Jeffrey Toobin, Esquire.

TOOBIN: I don't know if that's an insult or a compliment. But given what people think of lawyers...

O'BRIEN: When you're a journalist, it's an upgrade.

TOOBIN: For you it was a compliment.

O'BRIEN: Thank you very much.

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