Muhammad Team Attacks Death Penalty

The death penalty is fraught with errors and is skewed by issues such as race and politics, which leads to the execution of innocent people, attorneys for Washington area sniper suspect John Allen Muhammad wrote in court papers released yesterday.

In a broad attack on capital punishment, Peter D. Greenspun and Jonathan Shapiro asked Prince William Circuit Court Judge LeRoy F. Millette Jr. to declare executions unconstitutional. Although their motion is a long shot, Greenspun and Shapiro are asking the judge to take a bold step and spare Muhammad the possibility of a death sentence before his capital murder trial begins.

In a separate motion, Muhammad's attorneys asked Millette to allow them to hire a renowned jury consultant to help pick a fair jury in Virginia Beach. They said choosing jurors will be particularly difficult because of "the nature of the charges, the extreme publicity, the strongly held opinions in the community and the fear" evoked by the sniper shootings.

The 75-page death penalty document makes a broad argument against using capital punishment at all, calling it state-sanctioned murder and saying it is inherently flawed. The court papers essentially make the long-standing anti-death penalty argument, encompassing issues of finance, problems with capital juries, race, politics, the evolving standards of decency in the United States and the impact of new technologies.

"There is little, if any, positive benefit to the citizenry by seeking, and if ultimately successful, carrying out the planned death of Mr. Muhammad," Greenspun and Shapiro wrote. "Capital punishment prosecutions . . . carry huge personal and financial costs, do not deter others from serious criminal conduct and strain the moral elasticity of the community. . . . The death penalty system always has been and remains broken."

The attorneys' argument comes about nine weeks before Muhammad's scheduled Oct. 14 trial. Muhammad, 42, is charged with capital murder in the Oct. 9 slaying of Dean H. Meyers, 53, at a gas station north of Manassas, one in a string of 13 Washington area sniper shootings that terrorized the region last fall. Muhammad's alleged co-conspirator, Lee Boyd Malvo, 18, is charged with capital murder in Fairfax County in the Oct. 14 slaying of Linda Franklin outside a Seven Corners Home Depot store.

Citing recent studies that found errors in death penalty cases across the country, Muhammad's defense team argued that there is no way to administer a death sentence that will ensure the right outcome. The attorneys argued that the system is burdened with too many problems to put a defendant's life in its hands, saying that the normal legal standard of "beyond a reasonable doubt" isn't a high enough bar when a person's life is on the line.

"As death is final, the only truly fair and reliable burden of proof is beyond all doubt," the attorneys wrote.

Paul B. Ebert, the Prince William commonwealth's attorney who is prosecuting Muhammad and has sent more people to Virginia's death row than any other prosecutor, said yesterday that he believes the motion is baseless. "The Supreme Court has ruled repeatedly on these issues," Ebert said. "No system is totally infallible, but from my experience in every capital case I've ever handled, there is absolutely no room for question. If there's any room for question as far as legality or factual elements of the case, the court has always erred on the side of the defendant."

Greenspun and Shapiro specifically pointed to the rates of error discovered by a 2000 study performed by Columbia University Law School professor James S. Liebman.

That study found that 68 percent of all capital cases in the United States contained serious error and were overturned in the appellate process.

All told, the attorneys wrote, 56 percent of all capital cases ultimately resulted in defendants not deserving the death penalty, with 5 percent found innocent altogether.

Looking at Virginia, the attorneys argued that there is an "unsettling trend:" Virginia's capital cases are overturned for error by state courts 13 percent of the time, well below the national average of 47 percent. They asked whether that means Virginia's cases are done flawlessly or whether the courts ignore problems. Virginia also has one of the fastest death penalty systems, with some executions less than five years after a defendant's sentencing.

The defense motion also referenced Attorney General John D. Ashcroft's decision to try the sniper suspects first in Virginia, which he based partly on the state's success in attaining and carrying out death sentences.

"After all, in the midst of a system where individuals are exonerated every year due to mistakes, and in the midst of a system with evolving standards of decency making a valid execution today invalid tomorrow, a decision was made to prosecute in the jurisdiction that could get the job done swiftest," Greenspun and Shapiro wrote. "Although the epicenter of alleged activity occurred in Maryland, the state of Maryland could not offer the same assurances of conviction and execution in the most swift and efficient fashion."