Much more to come for Malvo, Muhammad

Appeals, future trials part of legal tangle

December 25, 2003|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

CHESAPEAKE, Va. - Within an hour of the jury's decision Tuesday to spare the life of convicted Washington-area sniper Lee Boyd Malvo, cartons of sniper case files rolled out of the courthouse in this Tidewater city, and the prosecutors, defense lawyers, police and victims' families headed home for the holidays.

But any impression that this signaled the end of the saga of the Jamaican teen-ager and of John Allen Muhammad, sentenced to die for his conviction as the elder member of the sniper duo, would be wrong.

Two Virginia judges have sentences to impose on them in the next two months; a judge could, but is unlikely to, reduce Muhammad's sentence to match Malvo's life in prison without parole. Appeals are certain. With the two suspected in murders in at least six states - Maryland included - and the District of Columbia, questions about future trials start with where to empanel the next juries. It could be Virginia, it could be elsewhere.

Early talk was that Prince William and Fairfax counties, where Virginia's most experienced prosecutors are intimately familiar with the crimes, would swap defendants. Fairfax prosecutor Robert F. Horan Jr., who failed to land a death penalty for Malvo this week in the Oct. 14, 2002, killing of FBI analyst Linda Franklin, suggested it as a possibility early in the trial.

On Tuesday he recommended that Prince William's top prosecutor, Paul B. Ebert, be next to try Malvo - for the same Oct. 9, 2002, killing of Gaithersburg engineer Dean Meyers that Muhammad was convicted of in Prince William.

Ebert said he would almost certainly seek a death penalty for Malvo, as he did for Muhammad. Ebert also indicated he would vigorously fight the insanity defense used by Malvo's lawyers in the trial that just ended.

"I think he was well aware of what he was doing and what he was doing was as despicable a crime as I've seen in my many years in this business," said Ebert, who has been a prosecutor for more than three decades.

One of the Prince William County assistant prosecutors who tried Muhammad attended several days of Malvo's trial, taking notes and listening intently. So did a lawyer named to represent Malvo in the Montgomery, Ala., shootings of two women, one fatally, Sept. 21 last year.

Lawyers have not been appointed to represent Malvo and Muhammad elsewhere in Virginia. Those who represented them in their first trials could be asked to continue with the defendants in future Virginia prosecutions, which Malvo's defense lawyers said makes sense because they know the cases.

The success of the insanity defense as a strategy to keep Malvo alive maps out future potential defense plans.

Defense lawyers portrayed Malvo as an emotionally fragile youth who fell under the Svengali-like sway of John Allen Muhammad, who masterminded the crimes and turned him into a murderous disciple.

"I am sure each defense will be somewhat similar," said one of Malvo's lead attorneys, Craig S. Cooley, one of Virginia's premier defense lawyers, noting that a life term for an 18-year-old is a very long time.

Steven D. Benjamin, president-elect of the Virginia Association of Criminal Defense Lawyers, said that should Malvo be tried elsewhere in Virginia, he had better hope Cooley represents him again: "A death verdict would have been surprising given Malvo's age and the influences of the older, adult Muhammad. However, ... the most important factor was the quality of Cooley's representation. Only an attorney of Cooley's insight, thoughtfulness and judgment would perceive what is not obvious to us - that this case had to be tried in order to save Lee Malvo's life."

Pushing death penalty

Some say it could appear unseemly to keep trying the men, especially Malvo, with the death penalty under attack around the country.

"I think there is a real public relations problem for them if they keep trying Malvo for the sniper crimes, if they keep going back to the well until they find 12 jurors who vote for death," said Scott Sundby, a Washington and Lee University law professor who specializes in death penalty juries.

Getting a death penalty for Malvo now could be difficult, said Jose Anderson, a University of Baltimore law professor.

"Now you have to get a jury to do what the first jury would not do. Does he push the victims harder? Does he harp on the confessions more?" Anderson said. "What are they going to do different that they didn't do this time."

In Virginia, defense lawyers could argue that a second capital murder prosecution under the state's untested anti-terrorism law would constitute double jeopardy. Malvo and Muhammad each were convicted of two capital murder counts, one under the new law.

"My instinct tells me that it is a close call," said former federal prosecutor John G. Douglass, now a University of Richmond law professor.

Louisiana waiting

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