- The Washington Times - Friday, February 7, 2003

A Fairfax judge presiding over the case of sniper suspect Lee Boyd Malvo yesterday denied a pretrial motion put forward by the 17-year-old's attorneys to keep expert witness requests secret from prosecutors.
Judge Jane Marum Roush ruled that because Mr. Malvo doesn't have money to pay for his own defense, his court-appointed attorneys must receive court permission to hire experts and pay them.
Michael S. Arif, lead attorney for Mr. Malvo, argued that the teen, who is being tried as an adult, should have the same rights as a wealthy defendant to hire experts privately, otherwise prosecutors will learn the defense's strategy unfairly.
"We do not seek a perfect trial in a perfect world, but we want a trial that is fair, that is just and on an even playing field," he told the judge. "We are not seeking to tip a hand [or] to pull any shenanigans."
Fairfax Commonwealth's Attorney Robert F. Horan disagreed. "The issue here is should the defense be allowed to hold secret meetings with the judge," he said in his rebuttal. "The policy in Virginia courtrooms since 1991 is to open up the courtroom to the public, with no secrets.
"We don't find that the constitution mandates what the defense is asking for," Mr. Horan said.
He added that the attempt to attain secrecy in the witness process was arbitrary. "Your honor, I will submit … no, I'll bet I could write down right now every expert they're going to request," Mr. Horan said. "They're going to want a DNA expert, a ballistic expert, and on and on."
Judge Roush listened with a stern expression to both arguments before citing three Virginia Supreme Court rulings as reason to side with Mr. Horan.
Mr. Malvo, who is a Jamaican citizen, and his suspected accomplice and mentor, John Allen Muhammad, 42, have been linked to 20 shootings, including 13 deaths, in Maryland, Virginia, Georgia, Alabama, Louisiana and the District.
Mr. Malvo could face the death penalty if convicted of the Oct. 14 killing of FBI analyst Linda Franklin. Mrs. Franklin, 47, was hit in the head with a single bullet as she and her husband loaded packages into their car outside a Home Depot in Falls Church. The trial is scheduled for Nov. 10.
With two bailiffs standing ready by the courtroom wall and a third poised behind him, Mr. Malvo sat quietly in his green prison-issue jumpsuit and white Velcro-strapped sneakers as court proceedings continued on the fifth floor of the Fairfax County Courthouse.
His hair has been cut short since he was taken into custody 100 days ago with Mr. Muhammad after a motorist noticed the pair sleeping in their car at a rest stop on Interstate 70 near Frederick, Md.
At the time of his arrest, Mr. Malvo was held as a juvenile and went by the name John Lee Malvo.
Mr. Arif told reporters gathered outside after yesterday's hearing that Judge Roush's ruling was "extremely unfair" and symbolic of outdated restrictions within Virginia's justice system.
"It's about time that Virginia reached the 21st century," he said. "I'd be happy if they just reached the 19th century."
Mr. Arif said his biggest concern is that Mr. Malvo is at risk of receiving an unfair trial because he is not wealthy.
"If I had the resources O.J. Simpson had, I'd have experts out the wazoo," he said.

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