- The Washington Times - Monday, June 2, 2003

A Fairfax County Circuit Court judge denied a motion to dismiss the case against sniper suspect Lee Boyd Malvo yesterday and said she will rule within 30 days on whether to move the trial to another county.

Attorneys for Mr. Malvo, 18, who is charged with two counts of capital murder in the Oct. 14 shooting in Falls Church of FBI analyst Linda Franklin, 47, said they want Judge Jane Marum Roush to move the trial either west or south of Richmond.

Their argument is that the lives of Fairfax County residents were so affected by the 13 random shootings in October, 10 of which were fatal, that they will be unable to render fair and impartial judgment.

Judge Roush acknowledged the high cost of moving the trial but expressed openness to the idea.

“A lot of people lived in fear and made adjustments to their schedule during October,” she said. “It might be difficult for them to set that aside.”

Commonwealth’s Attorney Robert F. Horan Jr. argued that it is too early to speculate on how jurors might feel.

“An awful lot of people didn’t think they were in danger,” he said. “It’s premature. You have to wait and see rather than guess.”

Mr. Malvo’s trial is scheduled to begin Nov. 10, one month after the trial of fellow sniper suspect John Allen Muhammad is slated to start in Prince William County. Judge Roush estimated that the trial could last from three to 12 weeks.

Mr. Muhammad is charged with two counts of capital murder in the Oct. 9 shooting of Dean Harold Meyers, 53, at a Manassas gas station.

Judge Roush yesterday also granted a defense motion for a handwriting expert to evaluate two notes left near shootings, partially granted a defense motion to obtain more DNA evidence, and denied a defense request for more ballistics information.

The defense motion to dismiss the case was based on the argument that federal charges against Mr. Malvo overlapped with the charges against him in Virginia. Judge Roush ruled that since federal charges never mentioned Mrs. Franklin, double jeopardy had not been committed.

The final sniper shooting occurred Oct. 22, when bus driver Conrad Johnson, 35, was shot in Aspen Hill. On Oct. 24, Mr. Malvo and Mr. Muhammad were apprehended two days later at a rest stop near Frederick, Md.

On Oct. 29, Thomas M. DiBiagio, U.S. attorney for Maryland, filed a criminal information against the two suspects, but those charges were dropped a few days later. Mr. Horan said that he asked Mr. DiBiagio not to name any of the victims from Virginia in his charges, so that neither of the suspects would be made exempt from a trial in Virginia.

“He was a man of his word,” Mr. Horan said. Fairfax County filed charges against Mr. Malvo on Nov. 7.

When Judge Roush considered the change-of-venue request, attorneys for both sides debated the intent of the sniper shooting spree. Authorities have said that Mr. Malvo and Mr. Muhammad were trying to extort $10 million from the government.

Part of the defense argument for change of venue was that the snipers’ intent was to intimidate the public in an attempt to influence the government. Mr. Horan argued that the shootings were an attempt to intimidate the government by killing the public.

He said there is no evidence to prove that the intent was to intimidate the public, whereas the two notes demanding money from the government do prove that there was intent to extort money.

Defense attorney Mark Petrovich was successful in arguing to the court that a handwriting expert should be hired to analyze who authored the two notes. Police found one note on Oct. 19 after a 37-year-old unidentified man was shot but not killed in Ashland, and they found the second on Oct. 24 after Mr. Johnson was fatally shot.

Mr. Horan said that proving authorship was both irrelevant and impossible. DNA testing had been linked “conclusively” to Mr. Malvo, he said, and furthermore, the letters were written in block-letter script.

But Mr. Petrovich said, “The jury might say, ‘Who wrote the notes? That’s the one driving the conspiracy.’”

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