SNIPER SUSPECT SPEAKS FOR HIMSELF
John Allen Muhammed took his free-speech rights rather seriously today and insisted on his right to defend himself in his trial on charges of capital murder. In his opening statement, Muhammed seemed to be laying the groundwork for a defense that he had nothing to do with the shootings that terrorized the Washington area a year ago. Perhaps Muhammed has been reading his press clips a little too uncritically.

Some news outlets, for example, have made much of the "triggerman rule" on capital murder in Virginia, which, in the formulation most favorable to the defense, says: "One who is present, aiding and abetting the actual murder, but who does not actually fire the fatal shot, is a principal in the second degree and may be convicted of no greater offense than first-degree murder." So said the state supreme court in Frye v. Commonwealth back in 1986. Seems clear enough. If that's all there is to it, Muhammed could simply claim that his young companion, Lee Boyd Malvo, fired the shot, and at least that would keep him off death row.

But not so fast: The court has also ruled that "[t]here may be more than one principal in the first degree" in a murder case (Hancock v. Commonwealth), and has further stated that if "two or more persons take a direct part in inflicting fatal injuries, each joint participant is an 'immediate perpetrator' for the purposes of the capital murder statutes" (Strickler v. Commonwealth). That's not so clear. If Muhammed bought the gun and the car, taught Malvo to use the weapon, planned the crime, bought a map, drove to the shooting site, and drove the getaway car, doesn't that go well beyond "aiding and abetting" to the point of joint responsibility?

Since a death penalty conviction is automatically appealed to the state supreme court, the court will have the chance to clarify its position on the matter, but Virginia is notorious as a hanging state and Muhammed shouldn't count too much on the "triggerman" defense. The court would very likely find him equally responsible for the murder.

Nor should he be counting on another word being misused in the news coverage, and that is "circumstantial." CNN has repeatedly described the case against Muhammed as "circumstantial" because there is no witness. But the "circumstantial" means a case in which there mere circumstances point to guilt -- that a certain person was known to be in a certain location at a certain time, and that the fatal shot could only have been fired from that spot at that time. That isn't the case at all. In fact, the state has hard evidence -- fingerprints and ballistics -- that link Muhammed to the crime. There was a case in northern Virginia some years ago in which a man was convicted of murder based on a single boot print in the snow; in comparison, prosecutors have plenty of evidence against Muhammed.

One can only wonder why Muhammed decided to defend himself. Presumably he is following the example of Zacarias Moussaoui, who has quite successfully tied the legal system in knots while defending himself against a 9/11 conspiracy charge. But Moussaoui got a big boost from the government, which refused to let him interview potential witnesses. Muhammed won't have that luxury. And Moussaoui's successful machinations will probably do him little good, anyway, since the government will probably just declare him an enemy combatant and fly him off to Guantanamo Bay, never to be seen again.

Muhammed might better have studied the example of Colin Ferguson, who acted as his own attorney during his trial for killing six people on the Long Island Railroad in 1993. Ferguson made a hash of his defense and was convicted and sentenced to 200 years in prison.