Lawyers on Trial

The search for justice on high-profile cases can still leave questions unanswered—and evil acts a mystery.

The search for justice on high-profile cases can still leave questions unanswered—and evil acts a mystery.

By David Hodes

Top Lawyers

Lawyers seek answers and work for justice. They want answers so the rest of us can see something coming that makes no sense, raise the alarms and alerts, and learn to identify a sign of troubled behavior early enough before someone, anyone, in our protected sphere of life governed by a rule of law is hurt or killed.

High-profile cases bring out just how difficult this search is, and what lawyers who work them have to do, professionally and personally, to find justice.

Probably the most shocking example of trouble out of the blue was the attacks on September 11, 2001. But in Northern Virginia, that event was followed a year later by another troubling series of events that had the entire area fearing for their safety once again—the Beltway Sniper case.

 

BELTWAY SNIPER
In a three-week killing spree during October 2002, Desert Storm veteran David Allen Muhammad and his accomplice, 17-year-old Jamaican immigrant Lee Boyd Malvo, working as a sniper team inside a modified former police car, killed 10 people and wounded three in Maryland, Virginia and D.C. The victims were ordinary citizens going about daily chores—getting gas, shopping at Home Depot, etc.—when a shot from a high-powered rifle tore through them.

Muhammad was convicted of capital murder and homicide with intent to terrorize and given the death penalty. He was killed by lethal injection at Greensville Correctional Center in Virginia on November 10, 2009. Co-defendant Malvo was sentenced to life without parole.

In charge of defending Muhammad was attorney Peter Greenspun, a staunch anti-death penalty advocate, along with his law firm co-counsel Jonathan Shapiro. At issue was who actually did the killings since there were no witnesses to who actually pulled the trigger.

In a move that spelled disaster for the defense team, Muhammad, with no experience whatsoever, decided to take over his own defense just ten minutes before the trial was to begin, Greenspun says. “That devastated us,” he says. “I think it was ultimately very damaging to the defense as to who the killer was here and whether or not Muhammad was eligible for a capital punishment sentence.” Muhammad allowed his defense team back on his case just after his opening argument, but the damage had been done.

The final nail in the coffin for the defense team occurred when the prosecution changed the order of witnesses after Muhammad began his own defense. A retired sergeant major in the British army and sniper expert Mark Spicer detailed how a two-person sniper team worked together—a spotter and a trigger man—and effectively derailed the defense case. Mohammad and Malvo were convicted of murder because they worked as a sniper team. That, in the eyes of the law, was sufficient enough to prove the case against them. “We had to overcome the so-called trigger man rule,” Prince William County prosecutor James Willett says. He was one of a team of three prosecutors involved in the Muhammad trial that included Richard Conway and Paul Ebert. “No one could say who was the actual perpetrator because only Muhammad and Malvo knew how their operations worked and who was responsible for what. So we felt in terms of exposing him to the death penalty we had a high hurdle to clear and once we cleared that it would be somewhat downhill.”

Greenspun would have injected a probable cause flag if he had the chance. “In a report that came out in the Montgomery County, Md. evidence, not the Virginia evidence, the FBI issued a report opining that this was a lone sniper,” he says. “Obviously, therefore people can be a sniper alone.”

SLEEPOVER ASSAULT
Greenspun is now working on a new case where an assumption of guilt is a key issue. He is defending Michael Gardner from Falls Church, husband of Falls Church City Council member Robin Gardner. Michael Gardner was charged with two counts of aggravated sexual battery and one count of object penetration on two girls who stayed at a sleepover at his house with his daughter on June 2011. On September 7 this year, he was found guilty and sentenced to 22 years. “Michael Gardner is horrified at the verdicts but this is just the beginning of the battle for him,” Greenspun says.

In cases like child sexual abuse, emotions run high. That is why there can often be a rush to judgment, and Greenspun believes that this was the case here. “There were samples of alot of things that were collected and there were laboratory folks who issued reports saying the DNA were of minute quantities of Michael Gardner found inside one of the girls’s pajamas or underwear vs. the sperm of one of the girl’s fathers,” Greenspun says. “They did a purported investigation of Gardner from the beginning on an assumption of guilt,” he says. “There was no investigation of the mixtures of the DNA in some of the samples of the contributors and no investigation of the sperm regarding how and why the sperm got to the interior crotch of one of these kids.”

He says there were also dozens of inconsistencies in the testimony of the girls before trial and at trial, and they were not given due consideration because of the assumption of guilt. “If people heard the evidence and not just snippets of it and saw the inconsistencies and so on that they were accused of, they would say ‘Wait a minute. You could never convict me on that evidence.’” Greenspun adds, “Particularly in light of all of the capital murder and lengthy sentence exonerations where people have wrongfully spent decades in prison for improper convictions, it just goes to show how much care has to go into these cases from the beginning of any law enforcement investigation.”

TYSONS CORNER BRIDGE MURDER
Cases involving children are tough for any attorney. Ray Morrogh, who worked on the team that prosecuted Malvo in the Beltway sniper case, has seen the worst of the worst in his 30-year career as prosecutor.

But then he was assigned the case of Carmela Dela Rosa, the Fairfax County grandmother who murdered her two-year-old granddaughter, Angelyn Ogdoc, by throwing her off a sixth-floor pedestrian bridge at Tysons Corner Mall on November 29, 2010. “I have cases of babies that have been starved to death, stomped to death and beaten to death,” he says. What sits vividly in his mind in this case, he says, is when he watched the security video of that crime with detectives in his office. “I mean you could hear a pin drop,” he says. “I turned off the film and we called it a day right then. It was just such a horrible thing to see.”

The video showed that she waited for the appropriate moment and then carried out her plan, he says. “She lingered behind the rest of her family and allowed them to go out the doors,” he says. “And then, when they were far enough away to where they couldn’t stop her, she threw the baby off the bridge,” he says. “I guess she thought that Angelyn was the best vehicle to exact revenge on her son-in-law for getting her daughter pregnant, which was her motive. But there is something called evil in the world and that was pure evil.” The case is currently on appeal.

VIRGINIA TECH SHOOTINGS
If there were red flags about what Dela Rosa would or could do, nobody took notice. But in the case of Seung Hui Cho, a student at Virginia Tech who killed 32 and injured 17 students and faculty on campus April 16, 2007, Reston prosecutor Robert Hall, and founding partner of Hall and Sethi law firm in Reston, said there were clear red flags of a troubled person on the campus. Hall represented two of the victim’s families in a lawsuit against the university on that issue.

A year before the killings, four writing instructors expressed concerns to the school administrators about how Cho acted in their classes. One of them cited a paper Cho wrote about hating the students at the school, planning to kill them and himself; another had him removed from her class at the start of his junior year for writing poems fantasizing about violent acts.

Then there was the day of his final acts when he killed two at 7:15 a.m.—Emily Hilscher in her dorm room and the resident assistant, Ryan Clark, who came to her aid—then two-and-a-half hours later continued his spree, firing a total of 174 rounds as he methodically stalked people inside Norris Hall for 11 minutes.

Hall represented two of the families that did not accept the settlement offered by the Commonwealth on behalf of Virginia Tech—Erin Peterson and Julia Pryde—and sued the school for $4 million each for wrongful death. A jury found for the two families in March. The other 30 families split the Virginia state-offered $11 million.

Hall says that the senseless deaths of 32 people that day is something that no one could have foreseen. But he says the school knew that Cho had taken two lives around 7:15 a.m. and kept it a secret from the campus until the next shootings broke out.

“The parents rightfully want to know why for two-and-a-half hours are you telling everybody that there is a gunman on the loose except those that have a need to know who can take precautions for their own safety,” Hall says. “Then to hear the president say after the incident that the university stands bereaved beside you, well, the resonance is wrong.”

LANSDOWNE MURDER
Cones that shock us most, where evil decides to act and innocent people die. William and Cynthia Bennett were taking an early morning walk in Riverside Parkway in Lansdowne on March 22, 2009 when they were jumped by two men and savagely beaten. William died at the scene. His wife Cynthia survived after sustaining terrible injuries to her head and pelvic area.

Assigned by the judge to defend Jaime Ayala, the driver of the van, was Corinne Magee, a principal at the Magee Law Firm in McLean. “I totally agree that it was a horrific case as does my client,” Magee says. “What has happened to Mrs. Bennett is clearly as bad as what happened to Mr. Bennett.”

But, Magee says, she is extremely frustrated at this point because her client, 17-years old at the time of the assault, was prosecuted under a serious felony murder charge and given life plus 40 years.

“He was driving the vehicle and a couple of others were talking about doing a robbery,” she says. “Now he’s ended up with a life sentence. And the bad guy, Anthony Roberts, who is the one who inflicted all that horrible harm hasn’t even been charged yet.” Darwin Bowman, who was also involved in the attack does not have a set trial date as of presstime.

“But I also certainly feel that the court came down on Jaime with an absolute sledge hammer for some clearly horrible facts that Jaime didn’t do,” she says. “The judge maxed him out on everything.”

But does this horrific case bother her?

“No,” she says. “Back when I was a prosecutor and especially when I was prosecuting a majority of the child sexual abuse cases in Fairfax at the time, I developed the mechanisms to be able to close my door at the end of the day and go home and be a mom and have another life,” she says. “And those same defense mechanisms still apply now that I am doing defense work.”

GPS TRACKING
Attorneys often face cases that challenge our living Constitution which are brought on by new technologies used in law enforcement, demonstrating again the importance of a rule of the land that can evolve to keep up with the society it protects.

Stopping a sexual predator was on the minds of Virginia police when they attached a GPS tracking device to the food service corporate van of David Foltz, a registered sex offender they wanted to keep tabs on.

Through the use of three satellites, they watched as Foltz traveled up and down streets in what they characterized as a hunting behavior in February 2008. They were then able to follow him and actually witness him stalking and attacking a woman.

While this was considered good and, at the time, legal police work based on reasonable suspicion, there was no law that dealt specifically with how they were using GPS technology for their work. In fact, it was later determined to be illegal without a warrant. But at trial, Foltz was sentenced to life. Foltz attorney Chris Leibig from Alexandria appealed to suppress the testimony of the officers who had used the tracking device.

While awaiting the decision on his appeal, a separate case before the U.S. Supreme Court concluded that using GPS without a warrant is, in fact, illegal. But that decision came too late for Foltz. “The court found that attaching and tracking the GPS device in our case was harmless error,” Leibig says. “That means that even if the police officer testimony was suppressed there was still enough evidence to convict.”

Leibig says that when he and his partners litigated the GPS issue in 2008 there was very little law in the whole country on GPS tracking. Since that time, the law is now fully developed.

Though the law didn’t help Foltz because of the harmless error ruling, the bottom line is that Fourth Amendment rights were strengthened, says Leibig. Now, law enforcement has to have probable cause and go through a magistrate to get a warrant to use GPS tracking, he explains.

But what’s still up in the air and very related to this issue, he says, is GPS in cell phones. “They don’t need to commit a physical trespass on the phone like they do to stick a device on a vehicle,” he says. “And by communicating your information to the cell phone company by making calls, prosecutors in cases argue that you voluntarily conveyed that information to a third party and therefore it’s not private. And cell phones go inside where people have a higher right to privacy.” The issue is just now heating up, he says, as the challenges begin to win.

DUI OFFENSES
Another new technology for your vehicle just took a leap into the headlines as of July 1.

It’s an ignition interlock device, required for DUI offenders on their second offense or in cases of high blood alcohol content offenders based on a judge’s discretion. Now a newly passed bill by the Virginia General Assembly—HB279—requires any first time DUI offender to have an interlock device on his or her car for a minimum of six months. “It’s just a matter of time before ignition interlock devices are installed in every vehicle sold in this country,” Scott Surovell, DUI attorney and partner in the Fairfax law firm Surovell, Isaacs, Petersen and Levy says. “And that is probably not a bad idea.”

But there are problems. “I think it will definitely result in more trials and possibly result in more probation violations after the trial, which will result in more activity in the courthouse,” he says. “These devices are a very different type of equipment from the machines that check breath alcohol content that sits in a controlled environment in a room in a building under very tight access and restrictions, and are regularly calibrated and maintained,” he says.

He says he has had many clients who reported that these devices have given false positives, and tell him that when they go to their car and it’s 100 degrees outside the devices will accuse them of drinking when they haven’t been. “You would have to hire a lawyer and defend yourself even though you may not be drinking at all,” he says. If you’re smart, you would also run to a doctor’s office and have your breath and blood checked to confirm that you hadn’t been drinking. “If you don’t have any other evidence, the judge is likely going to believe the machine.”

But does it violate people’s rights? “It depends on your point of view,” Surovell says. “But it definitely runs counter to the notion that in our state we have a right to a trial by jury of our peers and that the people ought to be setting policy, not the legislature,” he says.

Most lawyers try to fight the good fight. And as society evolves, so must the law.

The trend to making tougher laws for juveniles is on the radar for many criminal attorneys. Morrogh says that the first goal of dealing with juveniles who are convicted of crimes is to try to make them whole again so they won’t be a burden on society. “But you might want to watch the recent case in Fairfax where a five-year-old girl was kidnapped, raped and stabbed multiple times by a juvenile, John Ramsey.” What crosses his mind, he says, is when do we let this juvenile offender out and whose kid is the next victim.

And always discussed is the death penalty. “As long as our system is an imperfect one, and it is,” Greenspun says, “then we can’t afford to have capital punishment. I have really found no one after Muhammad was killed by the state who says with reason and not as a fanatic that they are much better off because he was executed.”

 

(December 2012)

 

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