- The Washington Times - Tuesday, November 11, 2003

CHESAPEAKE, Va. — Prosecutors and defense attorneys yesterday completed the selection of 28 jury candidates for the capital murder trial of accused sniper Lee Boyd Malvo, clearing the way for a jury to be seated today and opening arguments to begin tomorrow.

The 28 potential jurors consist of 10 white women, 10 white men, five black women, two black men and one Asian man. The candidates include a teacher, a mechanic, a nurse, a nuclear welder, a minister, a custodian, an insurance claims adjuster and a homemaker. The youngest is 22; the oldest is 70.

Each side today will be able to strike six potential jurors. The remaining 12 jurors and four alternates will decide the case against Mr. Malvo, who with fellow suspect John Allen Muhammad is accused of the sniper shootings last year in the Washington area that left 10 dead and three wounded.

Mr. Malvo, 18, faces the death penalty if he is convicted in the Oct. 14, 2002, slaying of FBI analyst Linda Franklin, 47, in the parking lot of a Home Depot store in Falls Church. He is charged with two counts of capital murder, one under Virginia’s new antiterrorism law and the other under a serial-killer law.

Mr. Muhammad, 42, has been on trial since Oct. 14 in Virginia Beach. He faces the death penalty for similar charges if he is convicted in the Oct. 9, 2002, shooting of Dean Harold Meyers, 53, at a Manassas gas station.

The Muhammad trial was in recess yesterday in observance of Veterans Day. His defense team is expected to conclude its case by next week.

Fairfax County Circuit Judge Jane Marum Roush, prosecutors and defense attorneys in Mr. Malvo’s trial qualified the 28 potential jurors from a pool of 151 candidates, dismissing 12 who were not willing to impose a death sentence or were otherwise prejudiced about Mr. Malvo’s trial. Virginia law requires jurors on a capital murder trial to be willing to consider the death penalty.

Defense attorneys are expected to argue a motion this morning to strike the entire jury panel as a legal formality in protest of the state law. At a press conference last night, defense attorney Craig S. Cooley said the law “denies Lee or any other defendant any opportunity to be judged by a jury of his peers.”

Mr. Cooley also said the jury selection went so quickly — two days compared with four in Mr. Muhammad’s trial — because “folks came with an open mind and prepared to answer honestly.”

Since the trial began Monday, both sides eliminated 58 from the pool of jurors: 41 who were not able to attend the expected 45-day trial and 17 who were either opposed to the death penalty or convinced that Mr. Malvo is guilty.

Late yesterday, Fairfax County Commonwealth’s Attorney Robert F. Horan Jr., who is the chief prosecutor in the case, advised the judge that a criminal background check conducted by his office found that one of the 28 potential jurors may have been convicted of a felony, making him ineligible to serve.

Mr. Horan said the man, who was identified as Juror No. 75, had a common name and that the police department needed to be consulted to determine whether the criminal record was in fact that of the potential juror.

At that time, Judge Roush needed to qualify one more potential juror to achieve the required pool of 28. The defense objected to what it called the prosecution’s secretive use of criminal background checks.

Mr. Cooley complained to the judge that the background checks should be supplied to the defense. The checks provide a history of criminal charges and other revealing information about juror candidates in addition to convictions. Judge Roush ordered prosecutors to turn over that information to defense attorneys.

“It’s awful late in the game for that to be any benefit,” Mr. Cooley said.

Mr. Malvo’s attorneys have advised the court and potential jurors that they will present an insanity defense based on evidence of Mr. Malvo’s impoverished, unhappy childhood in Jamaica and his indoctrination into Mr. Muhammad’s “extreme brand of Islam.”

During jury selection, defense attorneys asked jurors if they would have an open mind regarding testimony from mental health professionals about Mr. Malvo’s mental state. Meanwhile, Mr. Horan asked whether the potential jurors understood that they would judge the credibility of such expert testimony.

Mr. Malvo pleaded not guilty Monday to the murder and gun charges. Virginia law does not provide for a plea of not guilty by reason of insanity, but an insanity defense is allowed and a jury may issue a verdict of not guilty by reason of insanity. The insanity defense requires a lesser burden of proof than the prosecution’s case for murder.

For prosecutors to win a guilty verdict, they must prove guilt beyond a reasonable doubt. Defense attorneys must show only that the preponderance of evidence supports the insanity case to get a verdict of not guilty by reason of insanity.

During questioning yesterday, defense attorneys focused on the burden-of-proof issue, asking whether the jury candidates would honor the thresholds of preponderance of evidence and proof beyond a reasonable doubt.

All potential jurors said they would follow the judge’s directions regarding burden of proof and that they respected the different burdens the law places on prosecutors and defense attorneys.

The defense asked Judge Roush to excuse Juror No. 31 because he said the burden of proof for an insanity defense was too low. The judge denied the motion, saying the candidate indicated a willingness to set aside his beliefs and follow the judge’s instructions.

Judge Roush also denied Mr. Horan’s motion to remove a potential juror who had strong beliefs against the death penalty.

“I would consider it, but with my religious convictions it would be very difficult,” said Juror No. 123, a white woman. “I try to be open-minded, but I am 95 percent sure that I would not vote for the death penalty.”

Defense attorney Michael S. Arif opposed the motion, arguing that he recognized the “agony that juror will go through” and her willingness to go through that deliberation demonstrated her ability to be a “good juror.”

• Jon Ward contributed to this report.

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