Malvo hearing offers few answers

Prosecutors in Virginia outline their case against sniper suspect

January 18, 2003|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

After 12 hours of testimony in a Virginia courtroom this week, teen-age sniper suspect Lee Boyd Malvo heads toward murder indictments Tuesday that could lead to a death sentence.

While the preliminary hearing that led to a judge's sending the case to Fairfax County Circuit Court did not offer many answers, it fit together several puzzle pieces that experts say roughly sketch the prosecution's case against Malvo.

"Obviously, the value to Mr. Malvo's counsel is the opportunity to see some of what the commonwealth's evidence is and get an idea of where they are going," said Martin W. Lester, Fairfax County public defender.

Malvo, 17, and John Allen Muhammad, 42, are accused in 13 killings and five other shootings, including 10 fatal shootings that placed the Washington area under siege last fall. Malvo faces likely indictment on capital murder charges in the killing Oct. 14 of FBI analyst Linda Franklin outside the Seven Corners Home Depot store, and Muhammad is scheduled for an October capital murder trial in neighboring Prince William County, Va., in a fatal shooting that took place four days earlier.

This week's proceeding was startlingly long for a preliminary hearing; prosecutors typically reveal a sliver of the evidence they have during such a hearing, enough to keep the case alive.

Alexandria, Va., lawyer Marvin D. Miller, immediate past president of the Virginia Association of Criminal Defense Attorneys, said prosecutors seem to have assembled "all the little pieces." He broke down the case this way: "A, the woman was alive. B, this woman is dead. C, she was killed by a gunshot wound. D, the gun that fired the bullet was this Bushmaster; it was found in the car, and his fingerprints were found on the gun. You have fingerprints on the notes, the calls."

After the expected indictment, he said, the defense can begin to file motions and try to block potential evidence from being introduced. The court's procedures will provide chances for the defense team to try to draw out information in pretrial hearings, such as on the defense's expected request to suppress Malvo's statements during six hours of questioning by Fairfax County police.

Unlike court rules in Maryland, where the defense knows what the evidence will be before trial, Virginia says prosecutors only have to reveal a little of their hand, leading defense lawyers to say that the state has "trial by ambush."

While the alleged sequence laid out by Fairfax County Commonwealth Attorney Robert F. Horan Jr. sounds damning, Malvo's lawyers noted that the circumstantial evidence did not place the youth at the scene of Franklin's death. The alleged motive - a demand for $10 million to end the shooting spree - seems suited to an Austin Powers movie, said lead defense lawyer Michael S. Arif. He cautioned that evidence revealed sums up the case neither for the prosecution nor the defense.

With puzzle pieces from 24 witnesses, Horan presented evidence and testimony allegedly tying Malvo to four shootings and the weapon common to them:

The killing of Dean H. Meyers Oct. 10 at a Prince William County gas station, where Malvo's and Muhammad's fingerprints were on a Baltimore map found nearby.

Franklin's killing Oct. 14 by a rifle that Alcohol, Tobacco and Firearms officials said was used in the four shootings and which bore one fingerprint from Malvo and was recovered a few feet from him.

The wounding Oct. 19 of a man outside an Ashland, Va., restaurant where officials said they pulled Malvo's fingerprints from a bag holding a note and from a CinnaRaisins bag found in woods nearby.

The killing Oct. 22 of bus driver Conrad Johnson in the Aspen Hill area of Montgomery County, where a note was found that blamed government "incompetence" in not meeting a demand for $10 million for costing another life. Prosecutors also played the tapes of Oct. 15 and Oct. 21 phone calls to police reiterating the monetary demand, in which a Fairfax County detective identified the caller as Malvo.

Horan contends that Malvo could be put to death if convicted under either of two provisions. One would require prosecutors to prove he was the trigger man in more than one killing in three years. The other is an untested anti-terrorism law that refers to intimidating the public or coercing the government. Prosecutors contend that they need not show Malvo pulled the trigger for him to be executed under that law, though that would be challenged on appeal.

But the prosecution held off on laying out all the pieces of its case. For example, no DNA evidence was offered, though the FBI swabbed the sealing area of a plastic bag containing a sniper note to police and though other genetic evidence reportedly ties the men to the vicinity of several crime scenes. There was no indication of what Malvo said during his six hours with Fairfax County police.

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