- The Washington Times - Tuesday, March 4, 2003

A Fairfax County judge yesterday overruled motions that would save 18-year-old Lee Boyd Malvo from the death penalty if he is convicted of the Washington-area sniper shootings last October.
In a pretrial motion, the defense argued that Virginia's death-penalty statute is unconstitutional and doesn't comply with U.S. Supreme Court standards.
Defense lawyer Michael Arif said jurors are apt to consider the probability that a criminal will commit future acts of violence. Mr. Aris said the word "probable" is vague and means different things to different people.
Judge Jane Marum Roush ruled that "probability" was essentially equal to "beyond a reasonable doubt," which is required for a jury to find a defendant guilty.
Therefore, should the jury find Mr. Malvo guilty of killing FBI analyst Linda G. Franklin at the Home Depot in Falls Church on Oct. 14, it would then consider the death penalty.
Commonwealth's Attorney Robert F. Horan responded that the issues in the trial, scheduled to begin Nov. 10, are the same as other death-penalty cases in Virginia since the U.S. Supreme Court reinstated the death penalty in 1977.
"The Virginia Supreme Court has repeatedly ruled against those arguments for 26 years," Mr. Horan said.
Mrs. Franklin was the ninth victim in the sniper attacks in Maryland, Virginia and the District. Companion John Allen Muhammad, 42, is scheduled for a trial in October in Prince William County in the death of Dean Harold Meyers at a Manassas gas station. Mr. Muhammad also faces the death penalty.
Mr. Malvo showed no emotions, but occasionally leaned close to one of his four attorneys for brief conversations. Courtroom guards constantly stood behind his chair, and one guard patted Mr. Malvo's shoulder after the youth had put his head down on the counsel table and appeared to take a nap.
"My client is not getting his sleep," Mr. Arif said, because an inmate in the next cell "is all night long making noise, rattling bars."
Mr. Arif said Mr. Malvo has been disturbed by neighboring cellmates since he was moved into the adult jail after his birthday two weeks ago.
Judge Roush ruled on a number of defense motions during the daylong hearing in Fairfax Circuit Court. The rulings require prosecutors to turn over all "credible leads" in the case to defense attorneys and report any irregularities in forensic evidence.
Mr. Horan was not surprised by the rulings.
"Most motions were very routine. None of them were terribly significant," he said. "Most of the things they requested today, we handed over in January and February."
Mr. Horan said "the defense has all the evidence. There are 600 pages of transcript. There is one-half box of forensic reports and the chain of custody documents. Any statements, either written or reported, were given to the defense."
There were some 17,000 leads given to an area task force trying to find the snipers during their three-week shooting spree.
"We don't know which are the wild leads and which are the good leads," said Mr. Arif, who was given permission by Judge Roush to employ three investigators to work on special areas of leads and other evidence.
Mr. Arif said Judge Roush's ruling on the death penalty was expected, although "it was not what we hoped for."
The next motions hearing is scheduled for March 31.
This article is based in part on wire service reports.

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