- The Washington Times - Thursday, May 22, 2003

Fairfax County prosecutors yesterday asked the Circuit Court to reject a request by lawyers for sniper suspect Lee Boyd Malvo to move his trial out of the county, calling their claim that the jury pool is tainted “preposterous.” They also asked that the defense’s request for ballistics and DNA evidence be denied.

Prosecutor Robert F. Horan Jr. was responding to a defense motion filed May 15 seeking a change of venue. Michael S. Arif and Craig S. Cooley, attorneys for Mr. Malvo, argued in their motion that the county’s jury pool has been tainted by news reports and by their proximity to the shootings, which occurred in Virginia.

Mr. Malvo’s defense team said since their client has been charged with an act of terrorism, that makes “every citizen of Fairfax County a member of the victim class … and not a disinterested trier of fact.”

Mr. Horan called that claim “factually preposterous.” In court papers released yesterday he wrote, “It raises the notion of ‘victimhood’ to a totally new dimension, a dimension where one is a victim whether he or she knows it or not. It is a proposed dimension that is insulting to those who are actual victims.”

Mr. Horan also rebutted the idea that publicity in the media has prejudiced the general public against Mr. Malvo.

He cited the state Supreme Court ruling in Thomas v. Commonwealth that knowledge alone of a case is not enough to legally prejudice a jury pool against a defendant. The criteria are “whether the publicity is accurate, temperate, and non-inflammatory, and the timing of the publicity,” the decision said.

“The motion here is at best premature,” Mr. Horan said, adding that Judge Jane Marum Roush should consider a change of venue request only if attorneys have difficulties selecting a jury when the trial starts on Nov. 10.

Mr. Horan also wrote that his prosecutorial team will not present any evidence arguing that the sniper shootings were intended to intimidate the public. Rather, he wrote, prosecutors will say the intent was to extort $10 million from the government.

Mr. Malvo, 18, and John Allen Muhammad, 42, have been charged with the 13 random shootings, 10 of them fatal, that occurred from Oct. 2 to Oct. 22 in Virginia, Maryland and the District.

Both men face capital murder charges in Virginia. Mr. Malvo is charged with the Oct. 14 shooting of FBI analyst Linda Franklin, 47, outside the Falls Church Home Depot. Mr. Muhammad is being tried in Prince William Circuit Court on charges of killing Dean Harold Meyers, 53, on Oct. 9 at a Manassas Sunoco station.

In a separate document, Mr. Horan asked Judge Roush to dismiss the defense’s request for ballistic and DNA evidence.

Mr. Arif and Mr. Cooley asked to see evidence supporting law enforcement reports of tests done on the Bushmaster .223 semiautomatic rifle, the rifle’s magazine, the bullets at the scene of Mrs. Franklin’s shooting, and of letters found at the scenes of two shootings.

Mr. Horan said Virginia law did not require him to turn these things over.

“The Virginia Supreme Court has told us many times since the adoption of the Rules that we are a ‘limited pretrial discovery’ jurisdiction in felony cases,” he wrote, citing the case Hackman v. Commonwealth.

Judge Roush will hear arguments June 2.

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