Conviction and Sentence of "Beltway Sniper" Upheld; Testimony of Defendant's Mental Health Expert Could Be Excluded When Defendant Refused to Submit to an Examination by the Prosecution's Expert; Also, the Defendant Was Competent to Represent Himself

Article excerpt

First came 9/11, then the "Beltway Sniper." Still reeling from the attacks on the Pentagon and the World Trade Center, the Washington Metropolitan Area, extending along Interstate 95 into Virginia, was virtually paralyzed for three weeks in October of 2002 by what seemed to be a series of random, inexplicable shootings in which ten people were killed and three others critically wounded. It would ultimately be learned that two individuals--41-year-old John Muhammad and 17-year-old Lee Boyd Malvo--were responsible for these and other shootings the previous month in Louisiana and Alabama.

Tried separately, Malvo was convicted and given a sentence of life imprisonment. Muhammad's trial, following his request for a change of venue, was held in Virginia Beach, Virginia. Muhammad was convicted in October of 2003 of capital murder and given a death sentence. Muhammad appealed his conviction and sentence to the Virginia Supreme Court, which upheld the verdict. He subsequently filed a writ of habeas corpus in the federal district court for Eastern Virginia.

Among his various arguments in federal court, Muhammad asserted that expert testimony he wished to introduce had been improperly excluded; that he received ineffective assistance of counsel when his trial counsel failed to adequately contend that Muhammad was incompetent to represent himself; and that the prosecution improperly failed to disclose letters written by Malvo that were exculpatory. The federal district court rejected Muhammad's arguments and upheld the verdict.

With regard to the first issue, during his trial Muhammad notified the prosecutor that he would call one of his court-appointed mental health experts to testify at the sentencing phase to (1) interpret mitigating evidence regarding the defendant's difficult and violent upbringing and troubled youth, and (2) establish his lack of future dangerousness by showing the low statistical probability the defendant would commit serious violent crimes in prison. Pursuant to Virginia law (Va. Code [section] 19.2-264.3:1), the trial court appointed an expert for the Commonwealth to conduct a "reciprocal evaluation" of the defendant. Muhammad refused to be interviewed by this expert under any circumstances. For refusing to cooperate, as provided by state law, the trial court excluded the defendant's expert witness, although the judge offered to hear his testimony regarding future dangerousness outside the presence of the jury and after which he would rule on its admissibility. The defendant did not avail himself of this offer. On appeal, the federal district court ruled that the defendant had waived this argument by not raising a timely objection to the exclusion of this testimony at trial, that he had not offered any cause for his failure to so object, and that he had received an adequate opportunity to present this testimony at trial.

The court also found no constitutional violation associated with the exclusion of this testimony. The court noted that the United States Supreme Court in Buchanan v. Kentucky, 483 U.S. 401 (1987), held that the prosecution is entitled to a fair opportunity to rebut a defendant's mental health evidence. Here, the court found, the defendant refused to submit to the prosecution's mental health evaluation despite multiple warnings from the trial judge that this refusal could result in the exclusion of his expert's testimony. To permit the defendant to proceed with his mental health evidence, the court concluded, would have denied the Commonwealth its opportunity to rebut this evidence.

In addition, the court determined that the defendant had voluntarily and knowingly waived his constitutional right to present expert testimony on mitigation when he refused to submit to an examination by the prosecutor's expert. The court determined from the record that Muhammad was apprised of his rights and understood them and knowingly and voluntarily waived his rights when he deliberately failed to cooperate with this examination. …