- The Washington Times - Friday, October 25, 2002

Prosecutors will meet today to discuss where and how to proceed against the two persons captured yesterday in the sniper case that has terrified the Washington region throughout October.

With 10 deaths and a total of 13 shootings scattered across the District of Columbia and six counties in Maryland and Virginia, prosecutors will have to navigate among a web of interests in deciding which jurisdiction will first pursue a case against John Allen Muhammad, 41, and John Lee Malvo, 17, who were being held yesterday.

Federal authorities are holding the two suspects Mr. Muhammad on a weapons charge and Mr. Malvo as a material witness but lawyers said there is little chance of federal prosecution, since there don't appear to be any applicable federal charges that carry the death penalty.

A consensus is developing among prosecutors that the case should go to a state where the death penalty is possible.

Montgomery County State's Attorney Douglas F. Gansler had planned a morning meeting with Thomas M. DiBiago, the U.S. attorney for Maryland, to discuss charges but that was postponed.

Several Virginia prosecutors said they want to make sure the two face capital charges wherever they are prosecuted.

The District does not have a death penalty. Virginia and Maryland do, but while Maryland has an execution moratorium through fall pending a study on racial disparities, Virginia has long been among the top three states in its use.

"There's a moratorium in Maryland. Virginia, of course, we believe, has a very strong capital punishment statute, so we would be making an argument for that scenario," said Kirby H. Porter, commonwealth's attorney for Hanover County.

In that county, a man was wounded Saturday night while leaving a Ponderosa restaurant, and Mr. Kirby said the charges there could be conspiracy to commit murder, attempted murder, aggravated malicious wounding and firearms charges.

Virginia prosecutors have been in consultation with Paul J. McNulty, U.S. attorney for the Eastern District of Virginia, who is coordinating their discussions. Mr. Kirby said since he doesn't have a capital case he would be willing to defer his case to another jurisdiction that would be able to pursue the death penalty.

In Maryland, both major-party candidates to succeed the term-limited governor in this year's elections, Republican Robert L. Ehrlich Jr. and Democrat Kathleen Kennedy Townsend, support the death penalty, though Mrs. Townsend has backed the moratorium while Mr. Ehrlich said he would lift it.

Paul F. Rothstein, a Georgetown University law professor, said one strong basis for Maryland's claim is that more deaths occurred there than in Virginia, and Montgomery County is the only jurisdiction with multiple homicides.

On the other hand, law professors and prosecutors said, Virginia juries are good for death-penalty prosecutions, and Virginia's courts are among the nation's likeliest to uphold death-penalty convictions.

That's one reason why the federal trial for Zacharias Moussaoui is being held in Alexandria rather than other federal jurisdictions, said Ira Robbins, a law professor at American University.

"Virginia, from a prosecutor's perspective, is a wonderful state. Virginia is a better state for the death penalty than even Alabama," he said.

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