- The Washington Times - Monday, November 4, 2002

Virginia prosecutors, who expect first crack at trying two sniper suspects for capital murder, would have this awesome task: Prove each man pulled the trigger in at least one killing, prove guilt in that local case and prove other murders where trials hadn't yet been held.
The necessity of proving additional murders in other jurisdictions will present the prosecution with a "logistical sort of nightmare," said Virginia's official death penalty defender, and raises questions of double jeopardy that even prosecutors admit are thorny.
"This is going to be a tough case to prosecute, particularly if you're seeking the death penalty," predicted Fairfax Commonwealth's Attorney Robert F. Horan Jr., who seeks the chance to win a tough sentence for one of the three Virginia killings.
"There's a popular notion out there that this is going to be a lay-down prosecution, an automatic conviction and death sentence. That's nonsense," he said of a process that will require the first prosecutor to learn all the cases.
Mr. Horan contradicted published reports that he said he held evidence that Lee Malvo, 17, was the triggerman in the Oct. 14 killing of Linda Franklin, 47, outside a Fairfax County Home Depot store. But he welcomed yesterday's New York Times report that senior Justice Department officials consider Virginia most likely to try the case first.
The question of which suspect is the triggerman in each instance is critical because, short of a confession by one of them or an unlikely development such as the discovery of a videotape showing one of the men elsewhere when a shooting occurred, there would seem no way to pinpoint who shot a specific victim as both Maryland and Virginia death-penalty laws require.
A federal complaint charges that John Allen Muhammad, 41, was the triggerman in all six Maryland slayings and one in the District. Montgomery County charged both with capital murder.
"It is equally probable that either one of them was the triggerman in Fairfax," Mr. Horan said, suggesting that he might charge both and let a jury decide.
The new head of Virginia's Capital Defender Office, John Boatwright, agreed with Mr. Horan's appraisal of the difficulty and predicts that the defendants will not be tried together.
He said the cases raise novel double-jeopardy issues and that, despite state aid, Fairfax, Prince William, and Spotsylvania counties will strain to provide separate legal teams and investigators required for a case with national and international aspects.
"You're talking huge amounts of money as these things go," he said.
In Virginia, the person who committed the killing in any one crime in a serial-killing spree is eligible for execution if he was an accomplice in any other slaying anywhere within three years.
Virginia allows the execution of criminals who were 16 or 17 at the time of the crime. Maryland and federal courts may not execute offenders younger than 18, but Maryland allows life without parole for minors convicted of capital murder.
Mr. Horan said he has heard no evidence that Mr. Malvo, the 17-year-old nicknamed Sniper, fired fatal shots in Maryland. Except in killings for hire, only the person who committed the killing may be convicted of capital murder in Maryland or Virginia.
"The first prosecutor in Virginia would have to prove all three killings. I'm going to wait and see what the forensics tell us," Mr. Horan said in discussing how he believes a trial would proceed under the serial-murder law. Virginia also plans to use an untested terrorism statute passed after the September 11 attacks.
Mr. Boatwright seconded Mr. Horan's view that Virginia trials pose unique questions, including double-jeopardy issues that will complicate subsequent prosecution in Virginia.
"We'll learn a lot about the backgrounds of these two guys and, to my knowledge, no psychiatrist or psychologist has spoken to either one," Mr. Boatwright said, noting their physical disparity. Mr. Muhammad is 6-foot-1, 185 pounds and a war veteran who rated expert as a marksman. Mr. Malvo is 5-foot-5, 125 pounds.
"If you're Malvo's attorney, you say his will was overridden by this older, manipulative man," Mr. Boatwright said.
Prosecutors have to prove one additional killing during the main trial, but they are likely to present evidence about all the killings in the punishment phase to persuade a jury to give a death sentence.
"They're going to want to put on evidence of every killing. That's a logistical sort of nightmare, a lot of information to gather and put into some coherent fashion," Mr. Boatwright said.
Mr. Boatwright agreed with Fairfax lawyer Gilbert K. Davis' contention that basing eligibility for capital punishment on a killing elsewhere in the state for which the defendant is not yet on trial "attaches jeopardy" because it exposes him to a more severe sentence.
"Any lawyer worth his or her salt is going to allege double jeopardy when they prosecute the killing that wasn't yet tried," Mr. Boatwright said.
The Fifth Amendment forbids allowing any person "to be twice put in jeopardy of life or limb" for the same offense.

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