Convicted murderer vows to stay silent

Lawyers' verbal battles highlight Malvo trial

Toronto Star/December 2, 2003
By Rosie Dimanno

Chesapeake, Va.-- "Dragging John Allen Muhammad into court "literally and figuratively" is the objective at the Lee Boyd Malvo trial.

Literally, by way of subpoena. Except the convicted Beltway Sniper murderer has already indicated he'll assert his Fifth Amendment rights to avoid testifying. So much for all that paternal love Muhammad once allegedly felt for his young co-accused and pseudo-son.

Figuratively, by way of reference and implied blame, as the bogeyman who brainwashed, browbeat and coerced Malvo into committing a slew of shootings around the Washington, D.C., area last year, crimes for which the teenager should not be held legally responsible, the argument central to Malvo's insanity defence.

Except Commonwealth District Attorney Robert Horan gets darn near apoplectic whenever Malvo's lawyers venture in that direction, endlessly objecting to defence witnesses, evidentiary documents and all but the most strictly proscribed hearsay testimony.

"What is the relevance?'' Horan kept demanding with increasing exasperation, popping out of his seat, his face growing florid.

Horan, who rose to object on 21 occasions before the lunch break yesterday - nearly all of the objections sustained by Circuit Court Judge Jane Roush - was particularly incensed with the testimony of two key witnesses: Muhammad's ex-wife, Mildred, and the lawyer who acted for Muhammad after Mildred won exclusive custody of their three children in the summer of 2001, purportedly the defining event that provoked all that followed.

"Thousands and thousands of people lose their kids every year in custody (disputes)," Horan thundered. "And they don't go out and kill. (Muhammad) didn't kill Mildred. He killed other people."

Horan wants this trial to be about Malvo, full stop.

The defence team, headed by Craig Cooley, has different plans, although their tactics have been significantly stymied by Roush's rulings.

The judge is sticking hard by an exacting definition of hearsay evidence rules. And because Muhammad won't testify in this case - though he may be forced to appear next week because Malvo's lawyers want the jury to see him (Roush hasn't ruled on that request yet) - Horan argues, generally with success, that he won't be able to cross-examine him on any of this stuff. Hence, such evidence is not admissible.

This ever-erupting conflict has largely overtaken events in the Malvo trial. The Jamaican-born 18-year-old stands accused of killing FBI analyst Linda Franklin, the 11th sniper victim, and murdering more than one person over a three-week period in what the Commonwealth charges was an act of terrorism as defined under a new Virginia law, never before tested.

The Commonwealth contends that the motive for the killing spree was money, pure and simple. The snipers had demanded $10 million (U.S.) to stop the killing before their arrest on Oct. 24, 2002.

But Cooley, using all his considerable skills, is attempting to demonstrate that the sniper shootings were "cover" for a more dastardly plot - the murder of Mildred Muhammad, hidden within the sniper crime spree, so that custody of their children would revert to their father.

This scenario was never specifically cited at Muhammad's own trial but it was clearly implied, particularly in the sentencing phase. That jury recommended the death sentence.

At this trial, Horan is doing his utmost to keep the Mildred factor out of the courtroom, heatedly arguing that Muhammad's hatred for his ex-wife is irrelevant and an unacceptable distraction for the jury.

Cooley called Mrs. Muhammad to the witness stand but the jury never got to hear the significant part of her testimony. With the jury out of the room, Mildred Muhammad recounted how her then-husband had threatened to kill her in the fall of 1999, vowing he would never allow her to raise their children.

The following March, Muhammad abducted the kids and took them to Antigua, where he met Malvo, a neglected youth desperate for a father-figure.

When Muhammad returned to the U.S. in early 2001, Malvo followed him, court has heard. Authorities ultimately seized the Muhammad children and Mildred - who'd obtained a divorce in her husband's absence - won exclusive custody, immediately disappearing after the court hearing.

In the following months, court has heard, Muhammad set about turning Malvo into a marksman sniper.

Cooley is trying to show how Malvo underwent a complete personality transformation under Muhammad's influence, to the point he could no longer tell right from wrong.

Mildred Muhammad spoke to her ex-husband's controlling nature, describing how different her children were when they came back to her. John Jr., then 12, refused to hug his mom for six months afterward.

Her older daughter, she said, had assumed the role of mother. And the youngest child couldn't sleep. The kids, Mildred said, were terrified of losing her again.

But the jurors didn't hear any of this. They wereallowed to hear an audio tape of the Sept. 4, 2001, custody hearing in which Muhammad lost his kids.

At the time, Muhammad did not know Mildred had divorced him. Nor did he know, according to his then-lawyer, John Mills, that a pre-existing order had already been issued, essentially giving full custody to Mildred - an order that had not been enforced because no one, his ex-wife included, had known of Muhammad's whereabouts.

The custody hearing was held the day after the children were seized and Mills told the court Muhammad had no time to even file paperwork objecting to the custody order.

At one point, Muhammad is heard asking: "Your honour, can you please tell me what's going on?"