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August 7, 2009

Fourth Circuit rejects DC sniper's capital habeas appeal

Proving that it need not take decades to move capital appeals through the court system, the Fourth Circuit this afternoon upheld the Virginia death sentence of John Allen Muhammad, the so-called DC sniper who randomly shot sixteen people and killed ten.  As the Fourth Circuit panel opinion in the case details, Muhammad's death sentence was formally entered in March 2004.  As often happens in Virginia capital cases, Muhammad's appeals have gone through all direct review and various stages of capital review in just a matter of years, rather than taking multiple decades.

Though Muhammad can still seek en banc review and petition for cert, all of his viable appeals likely will be completed relatively soon.  Virginia then can — and likely will — seek an execution date, and Muhammad's death sentence may be carried out while lots of people can still remember the nature and horror of his crimes.  Though I am not completely familiar with all the legal issues in this case, my sense is that these proceedings — unlike many other capital cases — have been handled in a manner that should impress and comfort everyone except those categorically opposed to capital punishment.

The Washington Post has this article, headlined "Court Rejects Sniper's Appeal: Ruling Leaves John Allen Muhammad Few Options for Avoiding Execution," about today's Fourth Circuit ruling.

UPDATE:  A few commentors spotlight that the Fourth Circuit ruling shows that Virginia prosecutors actually did a poor job with its Brady obligation, so perhaps I am too quick to praise the legal process in this case.  But I still have little problem praising the result in this high-profile, poster-child case for the death penalty.

August 7, 2009 at 04:46 PM | Permalink


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Although he was probably not entitled to habeas, the analysis of the Brady claim seems doctrinally off: Several times the court says that certain evidence was not "exculpatory" because that evidence was weak or did not directly point to Muhammad's innocence---despite the fact that the evidence clearly had at least some tendency to undermine the government's case or to provide impeachment material. Much of this evidence certainly seems "favorable" to the accused, and thus "exculpatory" under Brady. Whether it is *material* or not is another question---it most likely is not, given that the case was overwhelming and the evidence here was fairly weak and easily explained away. But I wish courts could keep their analysis straight on these issues, which are already complicated enough.

Here is an example of what I think is a sloppy Brady analysis: "We note that even if Muhammad had presented these claims, there was other, conclusive ballistics evidence to support his convictions. Therefore, the challenged ballistics evidence would not have been exculpatory." This only makes sense if you substitute the word "material" for "exculpatory."

Another example: At page 15, the court says that the failure to disclose obvious impeachment material (letters to the INS on behalf of a government witness, written by the police) could not violate Brady because there has been no allegation that the witness testified falsely, and thus it is unclear how the evidence could be exculpatory. First, the court provides no citation for the requirement that the petitioner allege that the witness actually testified falsely (because no such requirement exists---the question is whether the jury's evaluation of the witness's credibility would have materially changed if the impeachment had been presented). Second, the court again seems to either misunderstand the meaning of "exculpatory" in this context, or miss the fact that material is "favorable" to the accused if it is either exculpatory *or* impeachment.

The court eventually gets around to stating that, even if "exculpatory," the nondisclosed information was not material/prejudicial. (And it wags its finger at the Commonwealth for not staying on top of its discovery obligations.) But along the way, the court unnecessarily muddies the Brady waters.

All of this leads to my moniker, after the line from The Princess Bride, applicable to the Fourth Circuit panel's use of the word "exculpatory": "You keep using that word---I do not think it means what you think it means."

Posted by: Inigo Montoya | Aug 7, 2009 5:53:49 PM

As long as lawyer make work is done and lawyer income is maxed out, there is no problem.

The judges, lawyers, and any other vile criminal lovers keeping this criminal alive need to get shot by the families of his murder victims. See how they like it.

This killer showed that a couple of losers could overcome the safety of the public provided by the criminal lover lawyer in charge of the criminal law. He disrupted life in the nation's capital area for weeks.

The sniper should have been killed a decade before. He was immunized and had the full protection of the criminal lover lawyer for the generation of just such worthless lawyer salaries now.

The lawyer continues to protect the sniper's boy, Robin. So he may kill again, this time with total license to kill, and total immunity from any accountability.

Posted by: Supremacy Claus | Aug 7, 2009 7:58:03 PM

SC - why didn't your beloved Tort system's wrongful death and assault torts provide sufficient incentives to turn these two away from killing?

Posted by: Texas Lawyer | Aug 7, 2009 10:09:06 PM

Criminal law is for the poor. Torts is for the asseted.

Only an earlier death penalty for having antisocial personality disorder would have deterred the sniper. This advocates the return of status crime. Call it antisocial personality disorder, call it evil. It does not matter. The earlier the death for evil, the greater the savings and benefit to the rest. Evil is the client of the lawyer, and has its full protection and immunization. Kill the sniper at 14, you are 6 innocent people ahead, a great return on investment, and ahead by all the expenses he generated, in the $tens of millions, not counting the value of disruption and fear in the population, not counting the loss from people who did not go out to restaurants or movies for fear of getting shot. Much of the expense went to rent seekers, so nothing will happen until they are eliminated.

Posted by: Supremacy Claus | Aug 7, 2009 10:50:37 PM


You might want to correct you comment about the case being handled well. The panel ripped the hides off the prosecutors for a gross discovery violation, but for the fact Muhammad horribly guilty I suspect the panel would have been reversing.

Posted by: karl | Aug 7, 2009 10:51:29 PM

Wow, death threats against particular federal judges are a little much even for S.C. I think the U.S Marshals tend to show some interest in such things, so you might want to be ready for that knock on the door--I'm sure they'll be interested in your theories about the law.

I also hope this might be a wakeup call for the owner of this blog to start showing some leadership and stop letting a troll turn the comments section of this otherwise well-done blog into a useless trainwreck.

Posted by: Jay | Aug 8, 2009 2:08:56 PM

I heartily second Jay's motion. Enough already with SC. Please.

Posted by: Alpino | Aug 9, 2009 4:08:40 AM

Agreed. It isn't even sarcasm.
Anyway, while the 4th did have some harsh words, they are just that. The only time that behavior is changed is if there is actual punishment. I don't know if this would be the best case to grant the writ, but

Posted by: S.cotus | Aug 9, 2009 1:45:00 PM

Jay and Alpino: Are you licensed to practice in Ohio?

If I weren't a fictional character, I might act on false allegations of a federal crime.

But I don't do that. Why? Because I care very much about helping the lawyer, if that is what you boys are. Read this.


Then this.


Obviously, I do not want anyone injured extra-judicially. But, I also support a more empathy for victims, and their families from cold hearted, rent seeking, hyper-proceduralist lawyers on the bench, in utter failure of their Job One, the safety of the public. If you know of any way to help these lawyers become less cold hearted, I am very interested in hearing about it.

Posted by: Supremacy Claus | Aug 9, 2009 5:36:39 PM

SC writes, "Obviously, I do not want anyone injured extra-judicially."

To which I'd reply, "BS," you're CONSTANTLY smearing lawyers and judges as a class and calling for vigilantism against them. This isn't the first time by a longshot, and as S.cotus notes, there's nothing in your missives to suggest you aren't serious (though I do believe you're a coward who talks a big game but doesn't have the cojones to ever follow through). You've said such things repeatedly - don't ask us to pretend you are kidding.

Also you're not a "fictional character," just an anonymous troll who doesn't understand the first thing about the legal system - for example, that there are lawyers on BOTH sides of criminal cases and complaints of "criminal loving lawyers" are pure, de-contextualized crap.

Doug, I agree that the failure to vet SC's rantings has frequently made SL&P comments unreadable and diminished the value of your comment section. I won't tell you how to run your blog, but at my shop he'd have been banned long ago.

Posted by: Gritsforbreakfast | Aug 9, 2009 8:51:57 PM

Grits: Is there anything I have said which is not true, not relevant, or not a loving criticism of the lawyer? You would be less angry and more forgiving if my comments were not self-evident to a high school grad who has not undergone the criminal cult enterprise indoctrination.

You are not a lawyer, and we have no dispute. I wish you well. I know you can kick my ass, my being a coward. However, how will that change the utter failure of every self-stated goal of every specialty of the law? I am the lawyer's best friend. The lawyer will make twice as much and have 10 times the esteem of the public once it gives up its failing supernatural core doctrines which violate the Establishment Clause of our secular nation. The lawyer hates his own profession more than anyone being twice as oppressed by it as the public, and the judge even more, being triply oppressed.

You believe in banning dissent. That methodology is going national, as the Obama administration has posted job openings for concentration camp guards. I know I am headed for one. I hope to continue posting comments during internet breaks from there. I would try to get an injunction from a federal judge to allow them, as a necessity of life and their prohibition violating the Eighth Amendment.


I hope that Prof. Berman may overcome his left wing denial state about the Obama administration, enough to address the implication to coming Sentencing Law and Policy, of such a job opening, from an US military web site.

Posted by: Supremacy Claus | Aug 9, 2009 9:17:03 PM

I visited Grits' blog. I found nothing with which to disagree. My beef is with the lawyers. I have none with Grits.

I also found this.


I hope that everyone visits that link to try to comfort Grits and his family at a time of unbearable pain. That is the only place where I felt a need to comment.

Posted by: Supremacy Claus | Aug 9, 2009 9:35:08 PM

"But I still have little problem praising the result in this high-profile, poster-child case for the death penalty."

Odd comment from a law professor. If the result is "right", but Muhammed should have won under the law, then he should get a new trial.

Posted by: federalist | Aug 10, 2009 3:26:25 PM

he and that cunt should suffer death by electric chair in the county of where the murder occured and they bodies inturned in prison yard

Posted by: joe | Sep 12, 2009 3:48:08 PM

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