- The Washington Times - Wednesday, May 21, 2003

MANASSAS (AP) — Prosecutors insist they can prove sniper suspect John Allen Muhammad was the instigator of the shooting death last October for which he faces trial, even though fellow suspect Lee Boyd Malvo claims he fired the fatal shot.

In court filings made public yesterday, prosecutors reiterated their argument that it does not matter who pulled the trigger on the single shot that killed Dean Harold Meyers of Gaithersburg on Oct. 9 outside a Manassas-area gas station.

The prosecutors argue that Mr. Muhammad is eligible for the death penalty under one of two capital-murder counts if they can demonstrate that he was a “principal in the first degree.”

In their legal brief, they cite Virginia case law that defines a principal in the first degree as “one who is the instigator and moving spirit in the perpetration of a crime, who directs his associates and assists them in the actual commission.”

Mr. Muhammad’s defense attorneys have argued that only a triggerman can be a principal in the first degree in a shooting death. They say Mr. Malvo confessed to shooting Mr. Meyers during a confession given to Fairfax County police.

Prosecutors do not offer any specific evidence to back their assertion that Mr. Muhammad is a principal in the first degree, but said in their motion that they will be able to prove it at trial.

Prince William Circuit Judge LeRoy F. Millette Jr., who will preside over Mr. Muhammad’s trial, has ruled preliminarily that prosecutors will not necessarily have to prove Mr. Muhammad is the triggerman, but he will revisit the issue during a May 29 hearing.

Even if Judge Millette were to side with defense attorneys, the triggerman issue is only relevant to one of two capital-murder charges facing Mr. Muhammad.

The other charge, based on an anti-terrorism law passed after the September 11 attacks, explicitly allows the death penalty regardless of whether the defendant is the triggerman. But that law is untested and could face a constitutional challenge.

Mr. Malvo, 18, and Mr. Muhammad, 42, have been linked to the 13 sniper shootings in the Washington area, 10 of them fatal.

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