- The Washington Times - Wednesday, June 25, 2003

Lawyers for sniper suspect Lee Boyd Malvo want to prove that their client was “under the spell” of fellow suspect John Allen Muhammad, a move that some legal observers say would help the defense persuade a jury to recommend a life sentence instead of the death penalty if the teen-ager is found guilty.

Mr. Malvo’s defense team yesterday filed a motion seeking evidence they think will prove their 18-year-old client was manipulated by Mr. Muhammad, 42. The pair have been linked to last fall’s 13 sniper shootings, 10 of which were fatal. Authorities have said the two men intended to extort $10 million from the government.

“They’re looking for any evidence that Malvo would be totally subservient to whatever Muhammad had in mind. I’m sure that’s what they’re looking for,” said Robert F. Horan Jr., Fairfax County commonwealth’s attorney who will prosecute Mr. Malvo, whose trial is expected to start in November.

The defense’s motion specifically requests 23 pages of police interviews of witnesses that the defense attorneys say have not been provided.

“To the knowledge and belief of counsel for the defendant,” the motion reads, “those pages relate to witness descriptions of Lee Malvo being ‘under the spell’ of John Muhammad during the relevant times of their relationship.”

Mr. Horan said he thought the defense had already seen those interviews, and was formally requesting the documents to generate more paperwork in the case.

“If they’ve already got 23 pages, they’re not entitled to another 23 pages. It’s a game. They either have it or they don’t,” Mr. Horan said.

Mr. Malvo’s lead defense attorney, Michael S. Arif, did not return telephone calls seeking comment yesterday.

Prince William County Commonwealth’s Attorney Paul B. Ebert said he didn’t think the documents Mr. Malvo’s defense team was seeking had been released.

“We numbered all the documentary evidence we had, and the things we felt were not discoverable, even though they were not numbered, we did not discover,” Mr. Ebert said. He said that Mr. Malvo’s lawyers “probably feel there’s a gap in discovery and that those pages are exculpatory, not in our case but in [Mr. Malvos] case.”

Yesterday’s motion is the first sign that Mr. Malvo’s attorneys intend to follow the trail of Mr. Ebert and his assistants, who are prosecuting a murder case against Mr. Muhammad. Prosecutors argued last month that they intend to prove that Mr. Muhammad was the “instigator and moving spirit” behind the shootings, and that Mr. Muhammad formed a “killing team” of Mr. Malvo and himself to carry out the shootings.

Mr. Ebert’s argument offset Mr. Malvo’s testimony that suggested Mr. Muhammad may not have pulled the trigger in all of the shootings. In the hours after he was caught, Mr. Malvo told detectives he shot several victims and laughed as they fell.

If Mr. Malvo carried out some of the shootings, Mr. Ebert would have to prove that Mr. Muhammad’s part in the shootings meets the legal definition of “vileness” and “depravity of mind,” which are aggravating factors that would merit the death penalty. Another is proof that Mr. Muhammad poses a threat of “future dangerousness.”

Mr. Malvo, who was 17 at the time of the shootings, was raised by his mother, Una James, who said on a Jamaican television station Sunday that she told her son Mr. Muhammad was a “demon” and tried to reclaim her son from him. Mr. Malvo went to live with Mr. Muhammad on the Caribbean island of Antigua after Miss James emigrated to Florida in 2000.

Joseph Bowman, an Alexandria lawyer who has defended several clients in capital murder cases, said proving Mr. Muhammad’s influence on Mr. Malvo “might not downgrade [Mr. Malvo] from capital murder to a lesser degree of murder.

“But … if Malvo is found guilty of capital murder, then the defense attorneys will present evidence of that influence at the sentencing phase in an effort to persuade the jury not to recommend the death sentence,” Mr. Bowman said.

Also yesterday, Mr. Muhammad’s lawyers filed a motion in Prince William County Circuit Court to dismiss the indictments against their client or downgrade the charges from first- to second-degree murder. Mr. Muhammad’s trial is scheduled to begin in October.

Attorneys Jonathan Shapiro and Peter D. Greenspun argued that the court’s previous ruling that deemed valid the indictments against Mr. Muhammad applied only under state law and not under federal law.

Mr. Muhammad is charged with one count of capital murder for committing more than one murder in Virginia within a three-year period, and one count of capital murder under Virginia’s new antiterrorism law, which is the subject of a constitutionality challenge.

The first indictment can be filed as a capital-murder charge only if Mr. Muhammad pulled the trigger or if aggravating factors are proved. Because those aggravating factors are not mentioned in the indictment, Mr. Shapiro argued that it does not fulfill the requirements for a capital-murder charge.

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