- The Washington Times - Wednesday, January 29, 2003

Fairfax Commonwealth's Attorney Robert F. Horan Jr. yesterday expressed relief that the Supreme Court decided not to test the constitutionality of the death penalty for juvenile killers with Lee Boyd Malvo scheduled to stand trial for capital murder in the Washington-area sniper case.
"I'd be in sort of a limbo land, but I think we probably would have tried our case anyway," Mr. Horan said of the trial. Mr. Malvo, who turns 18 on Feb. 18, could face the death penalty if convicted.
The high court refused Monday to review the appeal of Scott Hain, who was sentenced to death in Oklahoma for a murder committed when he was 17. Death-penalty opponents had hoped a Supreme Court ruling in the case would bar execution when the killer was younger than 18.
Mr. Malvo's Fairfax trial is scheduled to begin Nov. 10, but Mr. Horan expects defense moves to delay it until early 2004.
"I'm the eternal optimist on these things, but I think that if the Supreme Court had taken this case, they would have heard it before we ever try ours," Mr. Horan said in an interview. He predicts a decision on executing juveniles eventually will govern the Malvo case.
"I think sooner or later we're going to see one of those come back," he said. He anticipates Mr. Malvo's growing defense team will raise the issue.
Mr. Horan declined to express his own position.
"I'll argue that when somebody raises it. I'm not going to raise it for them," Mr. Horan said.
Richard Dieter, executive director of the Death Penalty Information Center in Washington, said the sniper case may force the Supreme Court to look at the issue.
"Even if Mr. Malvo is sentenced to death, it's likely the Supreme Court will consider that issue again before he would be executed," Mr. Dieter said.
If the high court had accepted the Hain appeal, the case would have been argued in the fall and not decided until at least next winter.
Death-penalty opponents had pinned hopes on the Hain case since Oct. 21, when four sitting justices joined a call to end what they termed "this shameful practice." Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer signed a six-page dissent from the court's rejection of a similar appeal by Kevin Stanford.
Stanford was sentenced to death in Kentucky in 1983 for the 1981 sexual assault and murder of gas station attendant Baerbel Poore, 20, when Stanford was a juvenile.
The court rejected Hain's appeal in a routine list of orders without comment.
The four justices who were so outspoken when five votes were needed in the rare direct habeas corpus procedure in October were silent Monday. Four votes were required to grant certiorari and add the Hain appeal to the fall docket for a full hearing on the merits of the case.
Opponents of juvenile executions have turned their attention to state legislatures and courts to create an opinion shift that the high court calls "evolving standards of decency." Lawmakers in Indiana, Montana, New York and Kansas recently barred execution of juveniles, and the Washington state Supreme Court took similar action.
After a series of changes by 16 states, the U.S. Supreme Court last term banned executions of even moderately retarded murderers. But the court has refused to budge from its 1989 stand allowing execution of juveniles in an earlier appeal by Stanford.
Several death-penalty opponents yesterday dismissed as too speculative questions about the four justices' motives: whether they thought the Supreme Court activity would prejudice the sniper trial, or that the sniper trial would poison chances of adding the fifth vote needed to declare the practice unconstitutional.
In October, Stanford's attorney, Margaret O'Donnell, called the four votes "a good sign" that the court would hear the Hain case.
She said yesterday the fight must go to the states. "I think this is probably a message to lawyers and people in interest groups that the court is interested in hearing more from the streets," she said.
The director of Amnesty International's death-penalty abolition project agreed.
"I think at this point the four justices who dissented in Stanford and wanted to put an end to the process of executing juveniles felt that there wasn't a fifth vote. What they didn't want to see happen was to embed further the precedent set in Stanford in 1989," said Sue Gunawardena-Vaughn, who joined Mr. Dieter in looking to the states for the next move.
"I think it's not going to be enough to just convince a fifth justice that they ought to change the law. I think they have to have evidence of an emerging national consensus as evidenced in state legislatures and maybe state supreme court rulings," Mr. Dieter said.
Mr. Horan expressed disgust at the concept of federal courts changing the law in some states because other states had taken the lead.
"That is such a novel constitutional principle. Just the whole notion that this evolving consensus thing takes on constitutional dimension is mind-boggling. I could understand it if 90 percent of the states were saying the same thing, but that's not the case," Mr. Horan said.

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