- The Washington Times - Saturday, October 26, 2002

Maryland prosecutors said yesterday that they will seek the death penalty against serial sniper suspect John Allen Muhammad, after a meeting with prosecutors from Virginia and the District about which jurisdiction would bring him to trial first.
Last night, Montgomery County formally charged Mr. Muhammad, 41, and John Lee Malvo, the 17-year-old suspected of being his accomplice, with six counts of first-degree murder. Prosecutors will not seek the death penalty against Mr. Malvo, but will try him as an adult. Maryland law forbids applying the death penalty to minors.
Montgomery County is the first jurisdiction to file charges related to the shooting spree that killed 10 persons and wounded three others in Maryland, Virginia and the District. Police are also investigating whether Mr. Muhammad and Mr. Malvo are connected to a killing in Alabama.
Still, it's not clear whether the suspects will be tried in federal or local courts and which jurisdiction will try them first. It is also not clear whether Maryland, which has a narrow death-penalty statute, can ask for the death penalty in this case. Some state officials say privately that a moratorium on executions in the state makes the future of the death penalty in Maryland uncertain.
Maryland Gov. Parris N. Glendening said yesterday that he expects the moratorium he imposed in May to be lifted by the time the sniper case is concluded. He also said the moratorium does not apply to this case because it was imposed to ascertain prior institutional biases in cases already tried. The moratorium expires in April.
Mr. Gansler acknowledged that D.C. and Virginia officials have a vital interest in the case, but said Montgomery County is the community "most affected and most impacted by the shootings."
"I think the general consensus is that the case will be tried first in Montgomery County," he said. "We have the best and most extensive evidence in the case here. The investigation began, ended and was centered here."
He also said that crossing state lines to commit murder does not make murder a federal crime.
The suspects were arrested Thursday after a national manhunt that ended in Frederick County, Md. Six persons were killed in Montgomery County. Three were killed in Virginia, and one died in the District
Prosecutors in Virginia, Maryland, Alabama and the District have asked federal prosecutors that the cases be tried at local levels.
In Virginia, Prince William County Commonwealth's Attorney Paul B. Ebert said he wants to seek the death penalty for an Oct. 9 killing connected to the sniper.
Virginia has executed 86 persons since capital punishment was reinstated in the United States in 1976 more than any state but Texas. In the same period, Alabama has executed 23, and Maryland has put three persons to death. The District does not have the death penalty.
A 17-year-old such as Mr. Malvo would be eligible for the death penalty in Virginia and Alabama, but not in Maryland.
Virginia has more avenues than Maryland for seeking the death penalty, including a post-September 11 provision that allows for execution when the killer has "intent to intimidate the civilian population at large."
Maryland allows for the death penalty in the murder of law enforcement officers, murders arising out of other crimes such as carjackings, or multiple murders arising from the same incident.
But the question is whether the sniper killings constitute the same incident.
Maryland's law, which the General Assembly intentionally made narrow, will make it difficult for prosecutors to charge Mr. Muhammad with a capital crime, says former Montgomery County States Attorney Robert Dean, now a prosecutor in the Prince George's State's Attorney's Office.
He said it was not a capital case and that "every murder doesn't carry the death penalty."
For now, the two suspects are being held in Baltimore while local prosecutors wait to see who will try the case.
The U.S. attorney in Baltimore, Thomas DiBiagio, has declined to comment on the possibility of federal prosecution.
But local prosecutors are worried that federal prosecutors will use their right to try the cases.
Yesterday, Virginia's attorney general appealed directly to the White House, and Attorney General John Ashcroft asked federal prosecutors to step aside.
Virginia Attorney General Jerry W. Kilgore said the state has a record of executing people convicted of capital murders. He also said Virginia law would block prosecution for the three fatal sniper attacks in Virginia if federal prosecutors try them first.
Federal prosecutors would have a difficult time making a death-penalty case under weapons or racketeering laws and are likely to defer to their local counterparts, former federal prosecutors say.
"I'm not sure they would want to put all their eggs in one basket, rather than try the suspects in a series of prosecutions," said Robert Cleary, a former prosecutor in New York, New Jersey and Illinois who prosecuted the Unabomber, Theodore Kaczynski. "I would be surprised if the federal government pursued this case."
Still, federal prosecutors have advantages. They can issue subpoenas across jurisdictional lines and have fewer restrictions than states on wiretapping and other aggressive law enforcement techniques.
If cases are tried locally, federal prosecutors will automatically handle the sniper-linked killing in the District, because all such prosecutions in the District fall to the U.S. Attorney's Office.
Jon Ward contributed to this article, which is based in part on wire service reports.

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