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John Allen Muhammad’s Self Defense

October 21, 2003 at 12:00 AM EDT
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RAY SUAREZ: The trial of sniper suspect John Allen Muhammad began Monday in Virginia. He is the alleged mastermind behind shootings that terrorized the Washington area last fall. In a surprising last-minute move, Muhammad asked to represent himself. The presiding judge ruled he could.

He is the latest in a long line of defendants who have forgone counsel and defended themselves. The U.S. Supreme Court ruled in 1975 that defendants could do so, although a judge first has to determine whether the defendant is competent and understands that he is giving up the right to an attorney.

Since then there have been many criminal cases where the defendants have represented themselves, including Dr. Jack Kevorkian, convicted in 1999 of second-degree murder in the death of a patient; Colin Ferguson, convicted in the 1993 shootings on a New York commuter train that killed six people and wounded nine; and Ted Bundy, convicted of killing sorority sisters in Florida.

What are the risks and benefits to self representation? Some answers now from two criminal law professors: Anne Coughlin of the University of Virginia, and Ronald Allen of Northwestern University.

Professor Coughlin, is there any judicial discretion here or if the defendant requests it, does the judge pretty much have to say, yes you can defend yourself?

ANNE COUGHLIN: The case that you cited, the Supreme Court decision in Ferrata, that case makes it clear that the defendant has a constitutional right, an absolute right to represent himself. And once the judge decides that he is competently exercised that right, the judge has no discretion. He has to let the defendant go forward on his own.

RAY SUAREZ: So, Professor Allen, if a person is sane enough to be tried, that is, competent to stand trial, that’s the same in this purpose as being competent to defend yourself?

RONALD ALLEN: Well that’s actually the standard although most of us think it should be something other than that and that there ought to be a distinction between competency to proceed to trial and competency to represent yourself. Actually that’s the standard today.

RAY SUAREZ: Does anybody do a good job of it, Professor Allen?

RONALD ALLEN: Actually once in a while people do a good job. Angela Davis in the mid ’70s did a very effective job representing herself.

Typically it’s a disaster. Typically it’s a disaster for the defendant; it’s always a disaster for the courts, both the trial level and the appellate level. This case though may be an exception to that.

RAY SUAREZ: Well, Professor Coughlin, who is doing it? Courts around the country are reporting that a growing number of people are representing themselves in court. Who are they?

ANNE COUGHLIN: Well, the cases that you mentioned suggest that they’re high-profile cases. I want to go back to something that Professor Allen just said in response to your last question. Of course, the defendant’s definition of what counts as a disaster in this case may be different from ours.

It may be that the defendant, be it Dr. Kevorkian or John Muhammad, has some kind of agenda that they want to present to court, some face that they want to put on the issues and they think that they’re in the best position to do that. They’re willing to run the risk of being convicted and then ultimately facing a very severe penalty.

But, yes, I take it there is a growing trend towards defendants making this type of gesture, and it’s one that, like Professor Allen, gives me a lot of concern, a lot of alarm because we don’t think that defendants are in any position to go through the kind of trial procedure, present evidence — particularly do a cross-examination effectively. That’s the job that lawyers do.

RAY SUAREZ: Well, Professor Allen, what are the up sides and the down sides that a defendant should know about before making the decision, informing the judge of their desire to defend themselves?

RONALD ALLEN: The down sides are clear. A person who represents himself has to abide by the rules of evidence and the rules of procedure. And, of course, they’re invariably ignorant of them. And the trial judges are supposed to not dig them out of the holes that they dig themselves into. You can get all bollixed up in various ways. That’s begun to happen a little bit in this case, although he’s not doing a bad job all things considered.

There are two possible up sides: One, you might classify as in the technical legal area. That has to do with the fact that there is one rule of evidence in a way that gets relaxed when you represent yourself. That is, you get to make unsworn statements to the juries. This maps under what Professor Coughlin was saying a second ago, you can make various kinds of statements. Sometimes they can be advantageous for various reasons; but I don’t think that’s what’s going on here.

The second kind of possible advantage I think may be at stake here and it’s why I’m not so sure this is a crazy move on Mr. Muhammad’s part. I don’t think he thinks and certainly I don’t think there is any chance that he’ll get out of jail ever. If he’s not convicted in this case he’ll be convicted in some other case.

So what this is likely to be about is whether he dies of old age in prison or whether he is executed. In that context, representing himself allows him to form more of a bond, if I can use that term — it’s not exactly the right term — with the jury but he becomes a person in the eyes of the jury. If he doesn’t come across as a monster, that will make it more difficult for them to sentence him to death because they now have to look this person in the eye — not an object — and say we’re sentencing you to death. Whether this is what he is thinking or has in mind of course I don’t know. But it’s the one possible advantage that I can see that might emerge from all of this.

RAY SUAREZ: Professor Coughlin, do you agree with that overview and are the stakes particularly high for everybody involved since it’s a capital case?

ANNE COUGHLIN: Yeah, the stakes are high for everybody involved. I notice that Professor Allen was careful to say, if the jury doesn’t come to view him as a monster. That, for me, is one of the huge risks and down sides here. You mentioned in your overview of prior cases the Ted Bundy case. And, that was a case that I had some contact with during the time it was on appeal. And Bundy very much came across as a monster to the jury and later to appellate judges working on that case.

So his decision to present himself — to sort of put a personal face on the defendant — ended up backfiring quite badly. So again I agree with Professor Allen that there may well be a rational thought process going on here, one that we would want to take account of. On the other hand, the risks are huge.

So again my judgment, I’m thinking about this from a perspective of a defense lawyer, is that this is likely to be a very big mistake for him and not likely to have the kind of ameliorative effect he would hope.

RAY SUAREZ: What about the judge, Professor Coughlin, is this a tightrope walk for him in this case?

ANNE COUGHLIN: Yes it’s a tightrope walk for the judge for sure. You can imagine that this announcement must have come as a great shock and raised great concern for the judge. The judge has a whole other layer of difficulties to reckon with, and this case was difficult enough before to say the very least.

Now the judge has to worry about what exactly is going to come out of Mr. Muhammad’s mouth. Lawyers, when lawyers are involved, we have a pretty good idea of what kinds of things they’re going to say. They know how to present evidence. Suddenly all bets are off as to what’s going to happen on any given day at any given time. The lawyer also… I’m sorry, the judge also understandably has appointed standby counsel to help Mr. Muhammad. They’re going to be involved so they may be getting up and saying things, which is going to add more work.

The other question in my mind too again just thinking about the larger societal interests in hearing the account of this case is to think about the position of the victims’ families and again their interest in having an orderly presentation of the facts, an orderly account of what occurred. It may be well be disrupted and obviously changed quite dramatically when Muhammad as opposed to lawyers are in control.

But again, those are risks I take it that we’ve decided the community has to bear in order to give this man his constitutional right to represent himself. He’s the one that’s going to bear the consequences at the end of the day. He’s the one who should be the master of the case. The lawyers are there to assist him. If he doesn’t want their help, that’s his choice.

RAY SUAREZ: Well, Professor Allen, let’s talk a little bit about the standby counsel that Professor Coughlin mentioned. In this case and in many others, there are court-appointed lawyers. They are actively preparing to mount a defense, and close to the last minute often right before the opening arguments, they are sent to the sidelines. Prosecutors in the Muhammad case have already complained that they are not far enough over on the sidelines, that Mr. Muhammad is leaning on them in court.

RONALD ALLEN: That’s correct. This is an example of the kinds of strains this process poses on the system that Professor Coughlin was talking about. It will pose strains throughout the entire trial and then actually on appeal as well.

A good example of this is the standby counsel are not there actually to assist him in a sense. They’re there to pick up the case again if he decides that he has made a mistake and wants to be represented. If you didn’t have standby counsel present that would be almost an impossibility because you’d have to start the trial over again. The lawyers wouldn’t know.

The problems that have arisen so far are precisely that Muhammad on the one hand is intelligent enough — in fact he comes across as a fairly quite intelligent man actually in this trial — he’s intelligent enough to know that he is not trained in the law and he’s trying to consult with his lawyers. And the prosecutors are objecting because what that amounts to is not self-representation but what we call hybrid representation where you basically are co-counsel with the lawyers. That’s not what we have here. He is counsel for himself. They are not CO-counsel He has to more or less sink or swim on his own. He can consult with them outside of the courtroom of course but inside the courtroom he’s not supposed to.

And, they’ve in fact now moved them physically farther apart to reduce that from happening. This is just a good example of what professor Coughlin is talking about, the strains on the trial judge. It will continue and my heart goes out to this person because it’s going to get worse rather than better as we go along.

RAY SUAREZ: Professor Coughlin, one lawyer who was fired by his high-profile client who considered himself a political detainee said ‘the outcome is less important than the platform’. In the case of Zacharias Moussaoui who is also defending himself at this point, are there perhaps different matters, motivations at play than those guiding John Allen Muhammad?

ANNE COUGHLIN: Well that certainly is our intuition. When we look at the Moussaoui case, we think that he has an overt political agenda, and that he really is thoroughly disinterested in helping the United States criminal justice system follow its definitions of fair trial procedures. He is clearly trying to make another kind of political statement, one that would challenge the foundations of the system.

With Muhammad, again, we don’t yet know exactly what his approach to the trial is going to be. As Professor Allen mentioned, so far it looks like he is trying to proceed in a lawyerly way. In fact, insiders or those who have been following the case closely have thought his defense lawyer strategy was to focus on the capital sentencing hearing, not that they would give up on the question of whether he was guilty or innocent, but that their main goal was going to be to spare him from the electric chair.

In the first few days or the first day of his performance as his own lawyer, it looks like he’s going to vigorously challenge the evidence of guilt. So it looks like he may be approaching this case in the way a lawyer would. On the other hand, my own intuition has been that he does have a political agenda even if it is a much simpler one than Moussaoui’s–

RAY SUAREZ: We’re going to have to end it there. Thank you both.