- The Washington Times - Tuesday, October 29, 2002

A Supreme Court decision in June has complicated death-sentence law in ways that open state and federal death-penalty procedures to challenges by the defendants in the sniper case.
The high court decision in an Arizona appeal left in doubt rules that do not require a jury to decide beyond a reasonable doubt every sentencing factor, other than the existence of earlier convictions. The federal government, Maryland and Virginia all have death-penalty statutes that could be challenged on those grounds.
But lawyers familiar with death-penalty law say Virginia's sentencing procedures and its basic murder law apply most directly to the scenario created by the sniper spree. The suspects in the killings, John Allen Muhammad, 41, and John Lee Malvo, 17, are in federal custody.
In September, U.S. District Judge William K. Sessions III in Vermont declared the federal death-penalty statute unconstitutional because it doesn't require the jury to find all the elements of the crime present beyond a reasonable doubt. Last Tuesday, the Justice Department filed notice of appeal.
Federal defender Alexander Bunin of Albany, N.Y., who won the case before Judge Sessions, said yesterday that the decision could spare everyone on federal death row and anyone facing federal capital charges, including Zacarias Moussaoui.
"If it's upheld, the 1994 statute is gone and they've got to write a new one. If they have to write a new one, only crimes committed after it is enacted can be subject to the death penalty," Mr. Bunin said.
Maryland appellate public defender Michael R. Braudes said he does not believe that the Maryland sniper charges could result in death sentences that would survive appeal. He says the Maryland statute is unconstitutional under the June decision in Ring v. Arizona, which extended an earlier jury-only requirement to death-penalty cases.
Asked whether Congress or the states could alter sentencing rules and apply them in the sniper case, Mr. Braudes said, "Absolutely not, that would be an ex post facto law." Mr. Bunin, who like Mr. Braudes has handled death-sentence appeals, agreed that any changes in the law would not affect current cases.
Both sniper suspects also face death in Alabama, but prosecutors there would have to prove that robbery was involved.
In the meantime, local district attorneys continued jockeying yesterday to be first to bring to trial the two men accused in the sniper case.
Spotsylvania County, Va., Commonwealth's Attorney William F. Neely obtained capital murder indictments yesterday against Mr. Muhammad and Mr. Malvo, charging that the Oct. 11 killing of Kenneth Bridges was part of a series of killings.
Meanwhile, Montgomery County State's Attorney Douglas F. Gansler lobbied to hold the first trial in his jurisdiction but said he would not prosecute it.
"You want to try the case where the best evidence can be presented," he said in a WTOP interview. "Montgomery County is where the healing process should begin. It was the beginning, the end and the epicenter."
The age of one of the defendants also complicates death-penalty decisions.
Virginia and Alabama allow 17-year-olds to face a death sentence. Maryland and the federal government do not.
Despite that legal barrier, Mr. Gansler's charging documents list Mr. Malvo's birth date as Feb. 18, 1985, and cite a death penalty despite Mr. Malvo's juvenile status. At a press conference on Friday, Mr. Gansler stated Mr. Malvo's age as 19, which a spokesman called a mistake. Mr. Gansler then questioned "if he is a juvenile."
To elevate first-degree murder to capital murder in Maryland requires proof the suspect "committed more than one murder in the first degree arising out of the same incident."
The documents lodged against both sniper suspects charge six killings at "the dates, times and locations specified." Under the new decisions, a grand jury must charge that the shootings arose out of one incident. A death penalty would require defining as a single incident the six sniper killings, which were separated by several miles and 19 days.
The law in Virginia and Maryland will require proof of which defendant was the triggerman in at least one instance for which the death penalty is sought.
"Either state would have to show at some point that particular person pulled the trigger at each time," Mr. Gansler said.
The Virginia Supreme Court ruled in the 1995 Graham v. Commonwealth decision that one such "triggerman" act qualifies a defendant for the death sentence in a series of killings, even if he was only an accomplice in the others.
Virginia makes premeditated murder a capital offense if any of 13 factors are present, including killing more than one person within three years. It also prescribes death for killings as acts of terrorism or those directed by a partner in a continuing criminal enterprise.
The Justice Department is studying how a federal law on a "continuing criminal enterprise" would apply if the men were charged with committing all 10 killings as part of an extortion attempt to get $10 million. That would violate the Hobbs Act, which outlaws extortion that affects interstate commerce.

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