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CNN BREAKING NEWS

Decision on Muhammad Sentence to be Read Shortly

Aired November 24, 2003 - 10:42   ET

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

CAROL COSTELLO, CNN ANCHOR: To update you once again on the D.C. area sniper trials, at least one of them, John Allen Muhammad's trial, of course, he has already been convicted of being a D.C. Sniper. And the jury has come back with its decision on whether he will live or die. We want to head live to Virginia Beach, Virginia and Patty Davis once again.
And as you were telling us before, Patty, the jury was not out very long.

PATTY DAVIS, CNN CORRESPONDENT: That's right. Just a little bit over an hour today, and that's on top of about four hours on Friday. We do expect to hear that decision within about 15 minutes. At about a quarter till 11:00 Eastern Time. John Muhammad was found guilty of two counts of capital murder last week by that same jury, and then they into this sentencing phase.

Now what they have to do tome poise a death penalty on Muhammad is they have to find aggravating circumstances, either the evidence of future dangerousness or depravity of mind.

Now, the prosecution presented the evidence. He's on trial for the killing of Dean Myers outside of a Sunoco gas station in Manassas, Virginia last October. But prosecutors presented evidence in 15 other shootings and murders, not only in the D.C. area during that string of sniper shootings, but all around the country.

The defense, meanwhile, is saying that John Muhammad is a caring, gentle man. They presented witnesses that testified to his character, and said he does not have a criminal record, he does not deserve to die in this case, let him live this out in jail for the rest of his life. If they choose life, there will be life with no parole.

There are two counts of capital murder here. One is the terrorism count. That is for intimidating the public, apparently. That is what they convicted him of last week. The other one is capital murder, killing more than one person in a three-year period. They found him guilty of both. Now the question before that jury, which they apparently have decided and we're awaiting word on, will John Muhammad live or die?

Carol.

TOOBIN: All right, Patty, we're going to break away so you can get ready to receive the decision. Jeffrey Toobin, our legal analyst on the phone right now.

Are you there, Jeffrey?

JEFFREY TOOBIN, CNN LEGAL ANALYST: Yes I am.

COSTELLO: That this jury came back so fast, is it surprising?

TOOBIN: Not really. This has been a pretty overwhelming case and a case where the defense is not -- has not had much to work with, let's just put it that way. In terms of -- the guilt phase, they had the fact that there was no evidence proving that Muhammad was the gunman, the triggerman on any of the murders.

But in terms of the sentencing phase, John Muhammad did not have a particularly sympathetic story. He was not someone who the jury is likely to have a great deal of sympathy for. The one thing very much in the defendant's favor is a note that the jury sent out last week, last Friday, that suggested there was some division and they asked what if we can't come to a unanimous verdict. Obviously, they seem to have gotten around that problem rather quickly, but all of this seems to augur rather badly for the defendant at this point.

COSTELLO: Yes, because even if the jury finds he does present a future dangerous and he is suffering from depravity of mind, they can still give him life, right?

TOOBIN: Well, that's the only choice available to them, it seems, is life or death. He's not going anywhere, that's for sure.

COSTELLO: Well, they did convict him on a terrorism charge, and that would be a first, wouldn't it, in the state of Virginia?

TOOBIN: Right there are avenues for appeal here on both of the theories. One theory is that these terrorism statute, that said he intended to cause a terrorist threat to the community by killing more than one person, that is a new law. That was passed in the light of 9/11 and no one has been sentenced, much less executed under that law, so there is -- there maybe grounds for appeal there.

The other theory, Virginia has a so-called triggerman statute, and the judge in this case use add somewhat novel theory, because there was no evidence suggesting that Muhammad was the gunman or no proof that he was the gunman. The judge said to the jury, you can find he was the triggerman if he was involved in using the car, the automobile, that was the weapon because, as you recall, there was a sniper's nest built into the trunk and they -- the judge said that is a weapon as much as the gun was a weapon. That is something that might be challenged on appeal, as well.

COSTELLO: Let's talk about the history of Virginia juries. They have a history of often handing out the death penalty, don't they?

TOOBIN: This is a tough state. Virginia is really right in the very second rank. It tends to trade places with Florida for the second most executions after Texas. Texas is in a league by itself. This is a state that sentences people to death and executes them. California is a state where there are lots and lots of people sentenced to death, there are more than 500 people on death row in California, but there are almost no executions. Virginia has executions. There was just one in April, and they are usually several a year. So if you get sentenced to death in Virginia, you're very likely to be executed.

COSTELLO: His alleged accomplice, Lee Boyd Malvo, is currently on trial. Will whatever the decision the jury comes to matter in his case?

TOOBIN: Well, it shouldn't. And, one, the judge in the Malvo case has already asked the jurors whether they were aware of the guilt verdict in the Muhammad case, and he asked them very specifically the two, I believe, who knew of the verdict, can you set that aside? And the jurors said yes. Surely, once this verdict is known and the penalty phase, the judge in the Malvo case will go back to the jurors there, find out who, if anyone, knew about the verdict and then question them to see whether they could make an independent judgment.

COSTELLO: And the Malvo case is proceeding very quickly, too, isn't it?

TOOBIN: You know, northern Virginia is known as the rocket docket. But all of Virginia has very fast trials, and as someone who has covered trials in Virginia only occasionally, I have been astonished as how quickly both the Muhammad and the Malvo cases have gone, but that is apparently par for the course in Virginia.

COSTELLO: Yes, because the prosecution has already rested, and the defense has started its case today, right?

TOOBIN: They are moving quickly in the Malvo case, and that's how prosecutors like it, and prosecutors tend to do very well in Virginia.

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