- The Washington Times - Wednesday, October 30, 2002

Several former federal prosecutors yesterday expressed bewilderment over the filing by the federal government of criminal charges in the sniper shootings, calling the strategy "a stretch" because of the difficulty prosecutors will face in securing a capital conviction.
"It goes against the grain," said Montgomery County attorney Thomas O'Malley, a former assistant U.S. attorney in the District. "Murder is a common-law crime prosecuted by the states. The way to get a conviction here is to continue locally, and when you miss one in Montgomery, go to Alabama.
"And when you miss there, go to Virginia," he said.
The Justice Department yesterday filed a criminal complaint against sniper suspect John Allen Muhammad, including six counts that could land him on death row. The government accuses Mr. Muhammad of using a weapon to commit murder, affecting interstate commerce by extortion and other charges.
His accused accomplice, John Lee Malvo, was not named in the complaint, as he is a juvenile.
Another former federal prosecutor in the District, Glenn Ivey, now the states attorney-elect for Prince George's County, called the move "fairly unusual."
"I have never seen a case handled by the feds this way," he said. "It is even more unusual to include the Maryland murders and exclude the Virginia murders [in the criminal complaint.] It is a transparent effort to keep the case away from Montgomery County."
Virginia law forbids prosecution of capital cases already tried by the federal government.
Montgomery County States Attorney Douglas Gansler yesterday stopped short of accusing the federal government of joining forces with Virginia to keep the case out of Maryland. But he did say that the Department of Justice has not been communicating with his office over the past few days, while they have maintained close and regular contact with Virginia officials.
"No one from the Department of Justice has communicated with us for days and days. In our view, they appear to be very seriously considering prosecuting local crimes in federal court," Mr. Gansler said while appearing at a campaign event in Rockville for Democratic gubernatorial candidate Kathleen Kennedy Townsend.
Mr. Gansler said federal prosecutors may be in contact with Virginia prosecutors perhaps because they believe the state is more likely ask for the death penalty. He added, however, that Maryland also would seek the death penalty. "They are much more likely to get death penalty here," he said.
Mr. Gansler said the federal government needed to "overcome some major hurdles" in order to prosecute the two sniper suspects.
Among other things, he said, the prosecution would have to show that all murders were motivated by extortion.
Many local officials said Maryland's narrow death-penalty statute and moratorium on scheduled executions is forcing federal prosecutors to file capital charges on the six Montgomery County murders.
But other officials say Mr. Gansler angered federal officials with the announcement Friday that he was filing charges in the Montgomery County shootings an announcement that apparently caught the Justice Department off guard.
"This is really a contest between two guys [Mr. Gansler and U.S. Attorney Thomas M. DiBiagio] who are competing for the case of their life and looking to run against each other for the same office in four years," one local official said privately. "It is about one, DiBiagio, who is a supporter of [Maryland Republican gubernatorial candidate] Bob Ehrlich, and Mr. Gansler, who is a supporter of Kathleen Kennedy Townsend, and an election that is only a week away."
Mr. O'Malley called the political maneuvering "unseemly."
"This is about people gaining personal statistics from others getting killed," he said. "It's sad."
Mr. Ivey, who worked with Mr. Gansler, believes the Montgomery prosecutor angered federal officials Friday when he held a pre-emptive press conference to announce the capital murder charges in the case.
"Doug has had a series of big cases and made himself very accessible to the media," he said. "It is his Achilles heel and his greatest strength. Friday's press conference hardened some of the federal resolve to try the suspects anywhere but Montgomery County first."
"It really ought to be Montgomery County's case," he said. "I haven't heard any great argument on the other end."
Prince George's Assistant States Attorney Luis Gomez, who will soon join the Montgomery County prosecutor's office, said "the press is more to blame for this story line than Douglas Gansler."
"Montgomery should go first," he said. "As a resident, I am appreciative of his efforts to prosecute the case here."

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