- The Washington Times - Tuesday, May 13, 2003

Lawyers for Lee Boyd Malvo filed a motion to dismiss the case against the sniper suspect yesterday, arguing that the initial charges brought against the 18-year-old by the U.S. attorney make state charges for the same crimes unlawful.

Michael S. Arif and Craig S. Cooley, Mr. Malvo’s attorneys, based their motion on Virginia code, which states that if “the same act be a violation of both a state and federal statute, a prosecution under the federal statute shall be a bar to prosecution under the state statute.”

Robert Horan, Fairfax County commonwealth’s attorney, said the motion had no legal grounds and was based on a selective reading of the law.

“We don’t think it’s a problem at all,” Mr. Horan said.

State code states that federal prosecution has officially commenced at the point when a U.S. attorney files an information. On Oct. 29, 2002, U.S. Attorney Thomas M. DiBiagio filed papers charging John Doe, later identified as Mr. Malvo, with the murder of six persons in Maryland and one in the District.

The 13 sniper shootings, 10 of them fatal, were carried out from Oct. 2 to Oct. 22.

Mr. Malvo, who was 17 at the time of the shootings but is now 18, and John Allen Muhammad, 42, were arrested Oct. 24 at a rest stop west of Frederick, Md. They were being held in a Baltimore jail under federal charges until Nov. 7, when federal charges against Mr. Malvo were dropped, and he was taken to Fairfax County.

Mr. Malvo will be tried in the shooting death of FBI analyst Linda Franklin, 47, at a Falls Church Home Depot on Oct. 14.

Mr. Muhammad is to be tried in October in Prince William County in the death of Dean Harold Meyers, who was shot at a gas station near Manassas on Oct. 9.

Mr. Horan said in an interview that the federal charges brought by Mr. DiBiagio never mention the name of Mrs. Franklin. If the federal charges had mentioned the sniper shootings in Virginia, the motion filed yesterday would present a more serious challenge, he said.

But the test, he said, is “whether it takes the same evidence to prove them. They could prove that entire federal indictment without evidence needed to prove the killing of Linda Franklin or anybody else in Virginia.”

Mr. Arif and Mr. Cooley argued in their motion that broad terms used in the federal charges include the sniper shootings in Virginia.

They also cited an Oct. 24, 2002, letter from Virginia Attorney General Jerry W. Kilgore that was sent to U.S. Attorney General John Ashcroft and Paul J. McNulty, U.S. attorney for the Eastern District of Virginia.

The letter stated that “any Virginia prosecution would be precluded if Lee Malvo was ‘prosecuted under federal law,’” the motion said.

Mr. Horan said that Mr. Malvo’s attorneys ignored a part of the law that says “none of this applies to a case of terrorism. One of our counts is capital murder in the course of an act of terrorism.”

Yesterday’s filing was the first motion by Mr. Malvo’s defense after Judge Jane M. Roush ruled on May 6 that most of a damaging testimony by Mr. Malvo on Nov. 7, 2002, will be allowable during the trial, which is scheduled to begin Nov. 10.

In that testimony during a seven-hour interrogation, Mr. Malvo reportedly laughed about taking part in some of the sniper shootings, including the one that killed Mrs. Franklin.

Mr. Horan said after Judge Roush’s decision that he expected several more motions from Mr. Malvo’s defense team.

“We expected it,” he said of the argument made in yesterday’s motion to dismiss. Mr. Horan has until May 23 to file a response.

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