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2 charged with murder in Md.

Montgomery Co. is first to act, bringing 6 counts against sniper suspects

Execution of adult to be sought

Jurisdiction rift focuses on where death sentence is most likely to be won

Search Fro The Sniper

October 26, 2002|By Gail Gibson and Stephen Kiehl | Gail Gibson and Stephen Kiehl,SUN STAFF

Stephen Bailey, a deputy state's attorney in Baltimore County, said a prosecutor could argue that the shootings constituted a single incident. But he said because there is no state case law on the issue, the argument could carry risks on appeal. "The danger in doing that is the Court of Appeals in Maryland has always taken a very narrow view of interpreting criminal statutes, away from the state and to the defendant," Bailey said. That means the prosecutor and victims' families could go through long death penalty proceedings, only to see the sentence overturned.

Gansler said he is confident that his office is on solid ground. He said the five killings that occurred over a 16-hour period Oct. 2 and Oct. 3 could be considered the same incident, adding: "Certainly, the four that happened during a 2 1/2 -hour period [on Oct. 3] would be eligible. Because of the close proximity in time and geography that these murders happened, we hope ultimately that the jury will find, if the case was prosecuted here, that it is death penalty eligible."

In all, the string of sniper shootings crossed into seven jurisdictions. The governors of Maryland and Virginia and Washington Mayor Anthony Williams said they expect prosecutions in each location but said they would defer to prosecutors to determine which cases are tried first.

"This should not be about the competition between jurisdictions," Maryland Gov. Parris N. Glendening said. "It should be, `OK, let's proceed in a cooperative effort because there will be trials in Maryland, in Virginia, possibly even in the District of Columbia and Alabama."

Glendening said the suspects, if convicted, "are obviously going to serve the ultimate penalty many times over."

Prosecutors elsewhere who have been involved in high-profile trials that touch multiple jurisdictions said there are no hard rules about who goes first - but they say there almost always is a battle for the honor.

"Whatever trial is first, and gets the worst punishment, that's the one that everyone is going to watch," said Jerry M. Blair, state attorney in Live Oak, Fla., who prosecuted serial killer Ted Bundy. "Whatever comes after it is just a second act."

Blair said prosecutors follow general guidelines, looking at where the crimes happened and where the suspect was arrested. But he said dryly, "Egos tend to - believe it or not - play a role as well."

Muhammad and Malvo are being held for now in U.S. custody. Muhammad was arrested on a federal firearms charge from Seattle, and Malvo was detained as a material witness in the sniper investigation. Authorities also issued yesterday a material witness warrant for Nathaniel Osbourne of Camden, N.J., a co-owner with Muhammad of the Chevrolet Caprice in which Muhammad and Malvo were arrested.

Muhammad and Malvo are being held at the Maryland Correctional Adjustment Center, also known as Supermax. Malvo was moved to the Baltimore facility Thursday after he attempted to climb out of a holding room at a juvenile facility in Montgomery County, law enforcement officials said. Guards monitoring the room by video camera saw Malvo try to climb through a ceiling tile but rushed into the room and pulled him down, the officials said.

Justice Department officials are also reviewing the case to determine whether they could bring a federal death penalty case, which would take precedence over local prosecution. As in Maryland, the federal death penalty does not apply to minors. There is no general federal murder statute, but using a firearm during any federal crime is a capital offense.

Law enforcement sources said that because a note was left in the Ashland, Va., shooting last week demanding $10 million, the author could face a federal extortion charge.

In Northern Virginia, U.S. Attorney Paul J. McNulty has not commented on the sniper attacks. Maryland U.S. Attorney Thomas M. DiBiagio also has declined to talk about the case - his office announced yesterday it would not return reporters' calls - but his office handled this week's preliminary appearances for Muhammad and Malvo in U.S. District Court in Baltimore.

DiBiagio and Gansler were scheduled to meet yesterday, but the meeting was canceled. Instead, Gansler met with other state-level prosecutors while DiBiagio conferred with federal authorities.

As Gansler announced plans to file murder charges - hours before the arrest warrants were finalized - he acknowledged that federal authorities still could step in but said his charging decision is prudent.

"In terms of whether [Justice Department officials] agree with what we're doing, they understand that Montgomery County has a local interest in prosecuting its murder cases," Gansler said. "These are murder cases that occurred here. We filed our charges, and I think they would understand it."

Sun staff writer Del Quentin Wilber contributed to this article.

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