- The Washington Times - Wednesday, December 17, 2003

CHESAPEAKE, Va. — The jury in the capital-murder trial of Lee Boyd Malvo is expected to continue its deliberations today, after spending seven hours behind closed doors yesterday.

The foreman of the jury sent a note to Fairfax County Circuit Judge Jane Marum Roush at about 4:45 p.m. yesterday asking to revisit the car used in the sniper attacks. The jury also sought clarification of the court’s definition of malice and an answer as to whether the two capital-murder charges are separate.

“Every one of these is a good question,” Judge Roush told the jurors before sending them home for the day. She and the attorneys in the case then decided what answers to give the jurors this morning, when the eight women and four men resume deliberations on Mr. Malvo’s role in the October 2002 sniper spree that left 10 dead and three wounded in the Washington area.

There is no limit on how long the deliberations can last. A Virginia Beach jury last month took about seven hours to convict John Allen Muhammad, 42, of capital murder for his role in the shootings and then took about six hours to recommend a death sentence.

Yesterday evening, the judge decided not to let the jury see the car again because it was not entered as evidence in the trial — although the jurors were taken to view the 1990 Chevrolet Caprice during the prosecution’s case. The jurors will have to rely on their recollection from that viewing, Judge Roush said.

The jurors said in the note that they were “hung up” on the part of the definition of malice that required the defendant to be “under the control of reason” when committing a crime. The jury must make a finding of malice on the part of Mr. Malvo, 18, in order to convict him of the two capital-murder charges.

“All that means is they know what they are doing,” said Fairfax County Commonwealth’s Attorney Robert F. Horan Jr., adding that the jury received a separate instruction to determine whether Mr. Malvo was legally insane at the time of the crimes.

Craig S. Cooley, a lead attorney on Mr. Malvo’s defense team, said the insanity issue was central to the question of malice.

“Malice is state of mind, and it is affected by insanity,” he said.

The jury instruction explaining malice said it “is that state of mind which results in the intentional doing of a wrongful act to another without legal excuse or justification, at a time when the mind of the actor is under the control of reason.”

The judge is expected to tell the jury today that the definition of malice is not a legal definition and that they must rely on their understanding of the definition provided.

The judge also will tell the jury that the two counts of murder are separate charges and that each requires its own verdict.

The teenager could receive the death penalty on the two counts of capital murder in the Oct. 14, 2002, killing of Linda Franklin, 47, in the garage of the Home Depot store in Falls Church. One count falls under Virginia’s new antiterrorism law and the other under a serial-killer law.

For both counts, the jurors must decide on a verdict of not guilty, not guilty by reason of insanity, guilty of capital murder or guilty of first-degree murder.

A guilty verdict on either of the capital-murder charges will require the jury to recommend either a sentence of death or a sentence of life in prison without the possibility of parole. If jurors convict Mr. Malvo of first-degree murder, the judge will render a sentence ranging from 20 years to life in prison and a possible fine of up to $100,000.

To convict Mr. Malvo of the serial-killer charge, the jury must determine that he was the triggerman in both the killing of Mrs. Franklin and the Oct. 9, 2002, killing of Dean Harold Meyers, 53, at a Manassas gas station. The second murder would qualify the sniper suspect as a serial killer who took more than one life in a three-year period.

It doesn’t matter who was the triggerman to convict on the terrorism charge, because it states that anybody involved in a terrorism plot is guilty of a capital crime.

The jury also must decide whether Mr. Malvo is guilty of using a firearm in the commission of a felony.

Muhammad was convicted of identical murder and gun charges for killing Mr. Meyers. He also was convicted of conspiracy.

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