- The Washington Times - Sunday, November 30, 2003

CHESAPEAKE, Va. — Attorneys for Lee Boyd Malvo expect convicted sniper John Allen Muhammad to make an appearance and possibly testify this week at their client’s capital murder trial.

Craig S. Cooley, a lead attorney on Mr. Malvo’s defense team, said last week that Muhammad had been subpoenaed to testify and that his lawyers had not attempted to quash the subpoena. Mr. Cooley also said he would call Muhammad to the witness stand this week and that his testimony could help Mr. Malvo’s case.

“If Mr. Muhammad comes to the courtroom and tells the truth, it will fit in with our case,” he said.

Mr. Malvo’s attorneys are trying to convince the jury that their teenage client is not guilty by reason of insanity. They say he was indoctrinated into Muhammad’s “extreme brand of Islam” and brainwashed into joining the three-week sniping spree of October 2002 that left 10 persons dead and three wounded in the Washington area.

The trial resumes today after a five-day recess for Thanksgiving.

Mr. Malvo, 18, faces the death penalty on two counts of capital murder in the Oct. 14, 2002, fatal shooting of Linda Franklin, 47, in the parking lot of a Home Depot store in Falls Church — one count under Virginia’s new antiterrorism law and the other under a serial-killer law.

He also is charged with using a firearm in the commission of a felony.

Two weeks ago, a Virginia Beach jury convicted Muhammad, 42, of the same murder and gun charges and one count of conspiracy for the Oct. 9, 2002, slaying of Dean Harold Meyers, 53, at a gas station in Manassas. The jury last week recommended Muhammad be put to death.

As in the Muhammad trial, prosecutors have attempted to link Mr. Malvo to other sniper attacks to prove the capital murder charges.

The cases differ in that prosecutors in the Malvo trial have audio recordings of the defendant confessing to as many as eight killings. The recordings include passages in which Mr. Malvo laughs as he describes the assassination-style slayings.

On the tapes, Mr. Malvo never implicates Muhammad, who he considered his surrogate father. Mr. Malvo’s attorneys have suggested that their client made false confessions to protect Muhammad, who they describe as the leader of a “cult of two.”

Since the defense team began arguing its case last week, the jury has heard testimony from family and friends of Mr. Malvo, who described his early years in Kingston, Jamaica.

In the testimony, the jurors were told of regular beatings administered by Mr. Malvo’s mother, Mr. Malvo’s separation from his father at an early age, and his being repeatedly shuffled from guardian to guardian and school to school.

The testimony formed the foundation for the defense team’s theory that a childhood of abuse, neglect and isolation made Mr. Malvo vulnerable to brainwashing when he was “adopted” at age 15 by Muhammad and smuggled into the United States.

An appearance in court by Muhammad, an imposing figure in contrast to the scrawny Mr. Malvo, would provide a striking image for jurors and could buttress the defense’s insanity-by-indoctrination theory.

But Fairfax County Commonwealth’s Attorney Robert F. Horan Jr., the lead prosecutor in the Malvo trial, was doubtful Muhammad would testify.

“There is zero chance of that,” he said in court last week.

If Muhammad’s lawyers do not quash the subpoena, their client could show up in court and invoke his Fifth Amendment right against self-incrimination. Though Muhammad will likely receive the death penalty when sentenced next year, he still could have something to lose by testifying.

Muhammad’s conviction or sentence could be overturned on appeal, and he could face additional murder trials for other killings in Virginia, Maryland, the District, Alabama, Arizona, Georgia, Louisiana and Washington state.

Still, Mr. Cooley disagreed with the Fairfax County prosecutor.

“Mr. Horan has a crystal ball in his office, because there is no indication from Mr. Muhammad’s attorneys” that they will fight the subpoena, Mr. Cooley said.

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