The last line of defence

April 11, 2003

John Lee Malvo could be executed if found guilty in the Washington sniper case. A local academic and his students are working to keep the teenager off death row. Walter Ellis reports

Justice must not simply be done, it must be seen to be done."

For Virginia's courts and legislature, this principle of law is symbolised by, indeed embodied in, the death chamber. Since the US reinstated the death sentence in 1976, the "Old Dominion" has executed 87 men and women.

It is second only to Texas in its enthusiasm for the ultimate penalty.

Murder and its judicial aftermath do not raise many hackles in Virginia.

Trials in the state go largely unnoticed. But not always. The most sensational capital case to come before Virginia's courts in recent times is that of John Lee Malvo, now aged 18, who is suspected, with his companion John Allen Muhammad, aged 42, of the murder of 14 people and the wounding of five others in the greater Washington area last autumn.

During the Washington sniper's reign of terror, no one in the nation's capital and its neighbouring counties felt safe. Almost every day came news of another shooting; people were shot at random, usually while doing mundane tasks, such as refuelling their cars.

When Muhammad and Malvo were finally arrested, America breathed a sigh of relief. But then the legal battle began. Who had jurisdiction? Were the crimes state or federal? Could Malvo, then aged 17, be charged as an adult? Lawyers from Washington, Virginia and Maryland clamoured to be part of what promised to be the most absorbing courtroom soap opera in the US since the trial of O. J. Simpson.

For Roger Groot, professor of law at Washington and Lee University, a private institution in the foothills of the Appalachian Mountains, an invitation from Malvo's defence counsel to advise on the case was one that he and his graduate students could not resist.

The invitation itself was no surprise. Virginia's way of death has for the greater part of his career been a way of life for Groot - one that he hopes to pass on to the next generation of attorneys. The 62-year-old Texan, director since 1995 of W&L's celebrated legal clinic, the Virginia Capital Case Clearinghouse (VC3), offers aid to public-defence attorneys that often saves their clients' lives.

Most law schools restrict their activities to teaching. Hands-on experience is confined by tradition to vacation work in a home-town legal practice or the local department of justice. But at W&L, the feeling is that lawyers in training should get their hands dirty at an early stage to imprint on them the elemental nature of their calling.

Nothing is more elemental than death, and VC3 is unique in its inculcation of the importance of due process in capital prosecution. Each of Groot's 16 students, pursuing the two-year programme within a three-year course, is expected to investigate, analyse and advise on real cases, working with public defenders, scrutinising procedure, examining every possible reason for mitigation, even in the worst examples.

Groot and his assistants can be expected to give Malvo their all. They know that Fairfax County, where the first trial is to be held, will come hard at their client, basing its case mainly on ballistic and other scientific evidence, without eyewitness testimony. Their task, reinforcing the work of Malvo's courtroom counsel, will be to dissect each claim, each statement, each seeming link in the chain of evidence so that the Jamaican-born accused, if found guilty, will not be asked to walk the Last Mile to the death chamber.

Each day, as students enter the clinic's premises, buried in the basement of W&L's law school, they see above the door of their professor's "battle bridge" the title of Dylan Thomas' poem And Death Shall Have No Dominion .

Ed Power, a graduate in biology and political science from Holy Cross University, Massachusetts, and an ex-Marine, confides he is not opposed to capital punishment per se. The problem for him is that it is so frequently misapplied or beset by practical problems. "After my time here, I've gotten to the point where I'm not so much learning the law as pushing arguments forward to use and change the law. It has been the most rewarding experience of my life."

For Philip Yoon, an American history graduate from the University of Pennsylvania, finding new issues in the law has been liberating. "We consult with the professor, we refine our skills. I write up the facts of five to eight capital cases each semester in our journal ( The Capital Defense Journal , published quarterly by W&L). One hot issue I'm involved with is stun belts, capable of delivering 50,000 to 60,000 volts for up to eight seconds. These used to be restricted to convicted prisoners in Virginia, but now they're being used on defendants as well. Virginia hasn't even addressed the issue, and I have to hope that my article in the journal will have an impact."

In fact, as Groot now informs his student, Yoon will soon draft a legal motion seeking to ban stun belts. The motion will be available to defence counsel throughout the state, and a test case is almost certain to ensue.

In this way, Yoon, not yet 24, could influence the law of Virginia.

Power, one year older, has already had motions he has drafted debated in court. One such, relating to juveniles and the death penalty, might be raised in the Malvo case. "It will be denied," Groot says, "but you have to preserve the issues. That is how we do it here: one step at a time. In every case, we try to move the issues forward."

Power has seen four of his motions succeed in court. Clients in cases in which he has advised have had the charges against them reduced from capital murder, which carries the death sentence, to murder one, which does not.

Ida-Gaye Warburton, from Manhattan, is working for Groot on the Malvo case.

Earlier this month, they spent four hours with Malvo's legal team discussing a strategy to adopt at the trial. Whitnan Nou, a former civil engineer, recently assisted in a case in which the two defendants were declared legally incompetent to plea. "This is a good thing," Groot interjects, adopting a Southern tinge to his voice. "This is a very good thing - it don't hardly get no better'n this."

Groot, a keen duck hunter ("it really pisses off my liberal friends"), retires as director of VC3 in 2005. But he will continue as a senior member of the law school, concentrating on legal history. The clinic began under his predecessor, Bill Giemer, since retired, and will be continued by David Bruck, who in a famous case last summer managed to persuade a court in South Carolina that a woman who drowned both her children should not be executed.

"We are unique," Groot says. "We do pre-trial and trial: all unpaid. No other school in the US does this."

What about appeals?"

Groot offers a reflective smile. "We don't do appeals. There's no point in Virginia. Here, as one court official put it to me, we push paper around for a few years, then we kill you."

But isn't he ever tempted to go the final mile? "The temptation to appeal is almost irresistible. But I resist it."

Groot is a successful attorney in his own right. He has acted as lead counsel in several prominent capital cases and has regularly been called on to provide expert testimony. He is extremely grateful to the university and the law school for the freedom it has given him and his students over the years. "We have 360 law students at W&L, and I teach just 16 of them. The university has to provide us with space and computers and technical assistance. We bring in revenue from the journal, and we run a one-day course each year for a hundred public defenders. But it is an expensive business."

Dean of law David Partlett, a native of Sydney, Australia, confirms cheerfully that he has had to take some flak over the years. "The death penalty is a touchy subject in Virginia. We get criticised from time to time, including from some alumni. But we are very proud of Roger and the work he does. He is admirable in so many ways. He is highly regarded for his classroom work - where he is a tough teacher - but what comes across from his students is a real respect and affection."

Seated in his main office, surrounded by decoy ducks, Groot takes quiet pride in his achievement and that of his students. "The only way to have real credibility with lawyers and students is for me to go out there into the real world and get kicked around a little. It gets me out of my ivory tower. But it's the same with my students. There is no substitute for direct experience."

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