Sidelined: Why Dietz sits out the sniper trials

The October 17, 2002 cover of the Hook

Last year the Beltway snipers terrified and intrigued people as far away as Charlottesville. Remember? You stayed tuned as one after another self-anointed expert tried to make sense of the killing. Now as the panic recedes, the puzzle remains: Why did they kill?

One person who knew enough to tell you the answer to that last year actually knew too much. Indeed, Park Dietz was way too valuable to the lawyers as a potential expert witness to be wasted on television.

State prosecutors hired Dietz to evaluate John Muhammad, but Muhammad refused twice to meet with Dietz. The Prince William County circuit court judge presiding over his trial ruled that Muhammad had thereby forfeited his right to present psychiatric evidence in his defense during the guilt phase of his trial, or– if he was found guilty of a capital crime– during the sentencing phase.

Then on October 9, the attorneys for the other sniper suspect, Lee Boyd Malvo, 18, announced that they would raise an insanity defense, claiming that Malvo had been brainwashed by Muhammad. Fairfax County prosecutor Bob Horan asked Dietz to serve as the state's expert witness in that case.

Five days later, Fairfax County Circuit Judge Jane Marum Roush ruled that Dietz could not act as an expert witness in the Malvo case. Why?

Although Dietz had not interviewed Muhammad, he had seen confidential files regarding the suspect. If this created a conflict of interest, it wasn't a typical one. Dietz's client in both cases was the Commonwealth of Virginia.

In both cases, lots of witnesses for the prosecution– from cops to ballistics experts to medical examiners– overlap. The difference is that the court "appoints" the prosecution's expert psychiatric witness in Virginia, although it's always the one picked by the prosecutor– or, it now seems, almost always.

Some of the papers examined by Dietz in the Muhammad case might have been given to him by the defense. They could be used against Muhammad only if the defendant put on psychiatric evidence himself. But that's Muhammad's right of confidentiality, and it wasn't Muhammad complaining about Dietz's appointment in Malvo's case.

It's not that Dietz wasn't qualified. From the standpoint of being well informed, he was too qualified. Judge Roush, bending over backwards to be fair to Malvo, wanted a prosecution expert who knew less, not more. She chose fairness to Malvo at the expense of accuracy in her evaluation.

Muhammad now finds himself facing a death sentence, possibly because he gave up what might have been his best chance to beat it just to avoid an evaluation by Dietz. Malvo avoids an evaluation by Dietz by a novel claim of conflict of interest.

What does this say about the bullet these guys thought they were dodging?

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