Prosecutors in the sniper cases appear to be pursuing two contradictory theories of the shootings in an attempt to secure the death penalty for both suspects, attorneys for John Allen Muhammad argued in court papers made public yesterday.
The Muhammad prosecutors have argued that he was the "captain" of a "killing team" and the moving spirit behind the shootings, which left 10 dead last fall, thus making him eligible for capital punishment even if he was not the person who pulled the trigger.
At the same time, the prosecutor of teen-age suspect Lee Boyd Malvo argues that evidence shows "there is never a whiff of a suggestion that Muhammad is ordering him to do things that he didn't want to do" and that Malvo should be eligible for death because he admitted to pulling the trigger in the killings.
At issue: Who was the driving force in the killings? The answer could help spare one of the two suspects from the death penalty if convicted.
In a motion released yesterday, Muhammad attorneys Peter D. Greenspun and Jonathan Shapiro wrote, "The state cannot simultaneously take conflicting views in concurrent prosecutions of what the same facts are in these cases."
Prosecutors do not agree with that assessment. In an interview yesterday, lead Muhammad prosecutor Paul B. Ebert said Muhammad was "an actual participant in all of these killings" but declined to say whether he believes Muhammad fired any of the fatal shots. He said the two prosecutions are consistent.
"It's our position that it takes two to tango, and that's what happened here," Ebert said.
The lawyers asked the court to require prosecutors to turn over 23 pages of witness statements that they believe show Malvo acted on his own and was not under the control of Muhammad. That information could help them fight the death penalty for their client.
Ebert turned over those documents to Malvo's defense team but hasn't given them to Muhammad's attorneys because he says Virginia law doesn't require him to. He said they would not help Muhammad's defense.
But Muhammad's attorneys wrote of the evidence, "To the extent it shows that Malvo was the shooter, and a very willing one at that, [the evidence] mitigates against the punishment of death - both at the guilt stage by showing that Muhammad did not direct or control Malvo, and at the punishment stage by helping to establish that Muhammad was not the shooter."
