Judge denies secret hearing with Malvo's defense

Lawyer argues it is issue of equal protection

February 07, 2003|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

FAIRFAX, Va. - A judge yesterday refused to allow teen-age sniper suspect Lee Boyd Malvo to request hiring expert witnesses and investigators in secret, ruling that the requests must be made in open court.

In a long-shot request for a "level playing field," Malvo's court-appointed lawyers asked for secrecy, contending that prosecutors would unfairly glean defense strategies from the requests while prosecutors do not reveal their strategies.

But Fairfax County Circuit Judge Jane M. Roush said that under Virginia Supreme Court rulings "the defense is not entitled to this." In certain circumstances, such requests for private hearings between the defense and judge are allowed in federal courts.

Because Malvo, who could be executed if convicted, is poor and Virginia pays for his defense, the court must approve the hiring of his experts and investigators, and the costs.

"If he was moneyed, we would not be here," defense co-counsel Craig S. Cooley told Roush, arguing that it was a constitutional issue of equal protection.

Commonwealth's Attorney Robert F. Horan Jr. said that "secret sessions with the judge" run contrary to state law and that the type of experts the defense will seek is not a mystery.

"I bet I could write down right now every expert they are going to request," Horan said, noting that the defense will want experts to cover areas in documents his office has turned over - "a DNA expert, a ballistics expert, and on and on and on."

Malvo, 17, is scheduled to stand trial Nov. 10 on two counts of capital murder in the Oct. 14 slaying of FBI analyst Linda Franklin, who was gunned down in the parking lot of Home Depot in the Seven Corners section of the Northern Virginia county.

Investigators say he and John Allen Muhammad, 42, are accused in about 20 shootings, including 13 deaths, in Maryland, Virginia, Georgia, Alabama, Louisiana and Washington, D.C.

Muhammad's trial on capital murder charges in the fatal shooting of Dean H. Meyers on Oct. 9 in Prince William County is set for Oct. 14.

For three weeks in October, sniper shootings placed the Washington region under siege.

"Now we are fighting an uphill battle," Malvo's defense co-counsel Michael S. Arif said after yesterday's hearing.

He said prosecutors have sent about five investigators to Washington state as they gather evidence of 13 fatal shootings to present at Malvo's trial. But he said he does not expect court approval for a comparable number of defense investigators.

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