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American Morning

Sniper Case

Aired October 07, 2003 - 08:36   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.


BILL HEMMER, CNN ANCHOR: The D.C. area sniper suspects going to see each other yet again today this morning in a courtroom in Virginia. Among the issues that will be talked about in court is whether or not Lee Boyd Malvo will be called as a witness at John Muhammad's trial.
Our legal analyst Jeffrey Toobin stops by now to take us through this.

Good morning to you.

JEFFREY TOOBIN, CNN LEGAL ANALYST: Howdy.

HEMMER: It is said he's pleading the Fifth right now.

TOOBIN: Yes.

HEMMER: If that's the case, is that the end of the argument?

TOOBIN: I think it will be the end of the argument. Sometimes judges say, if it's just non-incriminating material, if what you're asked to testify about has no implication on your own guilty or innocence, they may force you to take -- to testify, even if you try to take the Fifth. But when you consider that Lee Malvo is facing the death penalty himself, I think judges are going to say, if you want to take the Fifth, take the Fifth, we're not going to force you to testify.

HEMMER: Let me ask you this then, prosecutors obviously want his testimony, because they believe they have the goods on both these guys, right?

TOOBIN: Joint effort, right. Yes, I mean, the whole theory of the prosecution case is these guys were in it together, so why not have both testify if you can?

HEMMER: So you believe then, if the Fifth flies, they're going to have to rely on other evidence they've collected? And if you listen to some of the report, the evidence is quite extensive.

TOOBIN: Sometimes we all think we have a tough job. But imagine getting up every morning and defending John Muhammad. This is an incredibly difficult case to defend.

I believe in the presumption of evidence, but I don't believe in the presumption of stupidity. And you know, to present this case as anything other than open and shut seems very hard to do. HEMMER: We had two journalists on yesterday here on AMERICAN MORNING. They've written a book called "Sniper." They have incredible details that they say was based on the transcripts of the interviews of these two men after they were arrested. Another piece of evidence. How critical is that videotape the judge will allow? Explain that to us.

TOOBIN: Well, there's apparently a piece of videotape with John Muhammad at the scene of one of these crimes. Again, very incriminating. But, I mean, forget it -- the car itself with the -- you know, the hole in the trunk -- I mean, the weapon. There is so much evidence in this case. I think really, as we move forward, there's really two issues -- the relatively minor one is guilty or innocence, which I think is going to be very difficult to argue for the defense. But the interesting strategy is going to be how does each one try to avoid the death penalty? And that -- and largely, it seems by blaming each other.

HEMMER: There's a piece today in "The Washington Times," a long, extensive piece on that very issue. Others people have talked about it. They're fighting for their lives right now. Is there a chance that these guys are going to go and turn on one another, which is the suggestion in many articles?

TOOBIN: Malvo, the younger one, has already started through his lawyers, saying he was brainwashed, suggesting that he had lost the will to act on his own, and that is a much more plausible argument than anything John Muhammad will be able to say, because you know, you've got a 40-something-year-old man, 17-year-old boy; it's a lot more sympathetic to say, look, the older guy led me around, rather than whatever Muhammad could say to blame it on Malvo.

HEMMER: Interesting, nonetheless, in court today. And apparently, those who were in court last week, on the second of October when they appeared, there was no contact, if not any glance toward one another.

TOOBIN: And remember, this is just the beginning. You've got Virginia, you've got Maryland, you've got all those other states. I mean, they're going to be in court a long time.

HEMMER: Thanks, Jeff. I know you're going to Colorado to watch the latest in the Kobe Bryant hearing.

TOOBIN: Kobe Bryant hearing, Thursday.

HEMMER: We'll pick things up then, OK.

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 October 7, 2003 - 08:36   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
BILL HEMMER, CNN ANCHOR: The D.C. area sniper suspects going to see each other yet again today this morning in a courtroom in Virginia. Among the issues that will be talked about in court is whether or not Lee Boyd Malvo will be called as a witness at John Muhammad's trial.
Our legal analyst Jeffrey Toobin stops by now to take us through this.

Good morning to you.

JEFFREY TOOBIN, CNN LEGAL ANALYST: Howdy.

HEMMER: It is said he's pleading the Fifth right now.

TOOBIN: Yes.

HEMMER: If that's the case, is that the end of the argument?

TOOBIN: I think it will be the end of the argument. Sometimes judges say, if it's just non-incriminating material, if what you're asked to testify about has no implication on your own guilty or innocence, they may force you to take -- to testify, even if you try to take the Fifth. But when you consider that Lee Malvo is facing the death penalty himself, I think judges are going to say, if you want to take the Fifth, take the Fifth, we're not going to force you to testify.

HEMMER: Let me ask you this then, prosecutors obviously want his testimony, because they believe they have the goods on both these guys, right?

TOOBIN: Joint effort, right. Yes, I mean, the whole theory of the prosecution case is these guys were in it together, so why not have both testify if you can?

HEMMER: So you believe then, if the Fifth flies, they're going to have to rely on other evidence they've collected? And if you listen to some of the report, the evidence is quite extensive.

TOOBIN: Sometimes we all think we have a tough job. But imagine getting up every morning and defending John Muhammad. This is an incredibly difficult case to defend.

I believe in the presumption of evidence, but I don't believe in the presumption of stupidity. And you know, to present this case as anything other than open and shut seems very hard to do. HEMMER: We had two journalists on yesterday here on AMERICAN MORNING. They've written a book called "Sniper." They have incredible details that they say was based on the transcripts of the interviews of these two men after they were arrested. Another piece of evidence. How critical is that videotape the judge will allow? Explain that to us.

TOOBIN: Well, there's apparently a piece of videotape with John Muhammad at the scene of one of these crimes. Again, very incriminating. But, I mean, forget it -- the car itself with the -- you know, the hole in the trunk -- I mean, the weapon. There is so much evidence in this case. I think really, as we move forward, there's really two issues -- the relatively minor one is guilty or innocence, which I think is going to be very difficult to argue for the defense. But the interesting strategy is going to be how does each one try to avoid the death penalty? And that -- and largely, it seems by blaming each other.

HEMMER: There's a piece today in "The Washington Times," a long, extensive piece on that very issue. Others people have talked about it. They're fighting for their lives right now. Is there a chance that these guys are going to go and turn on one another, which is the suggestion in many articles?

TOOBIN: Malvo, the younger one, has already started through his lawyers, saying he was brainwashed, suggesting that he had lost the will to act on his own, and that is a much more plausible argument than anything John Muhammad will be able to say, because you know, you've got a 40-something-year-old man, 17-year-old boy; it's a lot more sympathetic to say, look, the older guy led me around, rather than whatever Muhammad could say to blame it on Malvo.

HEMMER: Interesting, nonetheless, in court today. And apparently, those who were in court last week, on the second of October when they appeared, there was no contact, if not any glance toward one another.

TOOBIN: And remember, this is just the beginning. You've got Virginia, you've got Maryland, you've got all those other states. I mean, they're going to be in court a long time.

HEMMER: Thanks, Jeff. I know you're going to Colorado to watch the latest in the Kobe Bryant hearing.

TOOBIN: Kobe Bryant hearing, Thursday.

HEMMER: We'll pick things up then, OK.

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