- The Washington Times - Sunday, November 9, 2003

VIRGINIA BEACH — Attorneys for sniper suspect Lee Boyd Malvo, whose trial opens tomorrow, will strive from the start to limit the use of the graphic evidence that has brought jurors to tears in fellow suspect John Allen Muhammad’s trial.

Graphic photographs of sniper victims, disturbing recordings of 9-1-1 calls from frantic witnesses and sobbing testimony from victims’ relatives have dominated the 3-week-old Muhammad trial here. In particular, the 9-1-1 recording of William Franklin after his wife, Linda, had been shot in the head in Falls Church on Oct. 14, 2002, caused jurors to weep openly.

Mr. Malvo, 18, faces two capital-murder charges in the slaying of Mrs. Franklin — one under Virginia’s new antiterrorism law and one for killing more than one person in three years. His trial begins tomorrow in nearby Chesapeake, Va.

The antiterrorism law “opens the door to bringing in [as evidence] a lot of other bad acts,” said Craig S. Cooley, a lawyer for the teenager. “If the terrorism statute is not in play, then you’re limited to putting into evidence only the murder of Linda Franklin [and one other murder].”

In a motion that will be heard before jury selection begins tomorrow, Mr. Cooley and fellow lawyer Michael S. Arif will argue that the murder charge under the antiterrorism law be dropped against their client.

The sniper cases are the first to be tried under Virginia’s antiterrorism law, which was enacted about three months before random shootings in the Washington area left 10 dead and three wounded during a three-week rampage last October.

The new law, which calls for the death penalty, is one of the reasons U.S. Attorney General John Ashcroft let the suspects to be tried first in Virginia instead of in Maryland, where the sniper shootings began and which had more victims.

Under the law, terrorism is defined as a crime committed with the “intent to intimidate or coerce a civilian population or influence the policy, conduct or activities of the government through intimidation or coercion.” Prosecutors are not required to establish who actually pulled the trigger because the law targets “evil masterminds,” not just their henchmen.

The defense team’s argument is based in part on Fairfax County Circuit Judge Jane Marum Roush’s decision this past summer to move the trial 200 miles south of where the crime occurred. Judge Roush said Northern Virginians were too traumatized by the shootings to serve as fair and impartial jurors.

Mr. Cooley and Mr. Arif argue that if Northern Virginians could not serve as fair and impartial jurors, then they also could not serve as qualified members of the grand jury that issued the indictment against their client. The defense could have applied that argument to both murder charges, but did not want to start the case again from scratch, Mr. Cooley said.

In the Muhammad trial, Prince William County prosecutors, citing the antiterrorism law, have presented evidence linking both sniper suspects to shootings and robberies across the country last year, saying Mr. Muhammad masterminded the onslaught to extort $10 million from the government.

The Muhammad defense team — Peter D. Greenspun and Jonathan Shapiro — have objected at every turn to evidence that they say is highly prejudicial.

Prince William Circuit Judge LeRoy F. Millette Jr. has denied defense objections to evidence such as the presentation of Mr. Franklin’s 9-1-1 call and a grisly photo of his wife’s fatal wounds, saying the evidence probes Mr. Muhammad’s guilt under the antiterrorism law.

Outside the courtroom, Mr. Greenspun said he thought the terrorism charge was an excuse for the evidence “just being let in.”

“Those tapes weren’t played for the public. You didn’t hear them and become scared. Sure, William Franklin was upset, but that’s because his wife had just been killed,” the Muhammad defense lawyer said.

Prince William County prosecutor James A. Willett said out of court that evidence such as the 9-1-1 calls are probative, regardless of whether they are presented under the terrorism charge.

“It’s a real-time description of what’s going on,” Mr. Willett said. “The judge said it’s more probative than prejudicial.”

Mr. Muhammad is on trial in the Oct. 9 fatal shooting of Dean Harold Meyers, 53, at a Manassas gas station. Like his teenage companion, the defendant faces one capital-murder charge under the antiterrorism law and one for killing more than one person in three years.

Much of the evidence presented so far in the Muhammad trial has been circumstantial in linking the 42-year-old Army veteran to various crimes, but it has established Mr. Malvo’s participation through eyewitness testimony. Moreover, the teenager already has confessed to shooting several victims.

Excluding evidence related to the antiterrorism charge could help spare their client the death penalty, the lawyers said.

“What we’re seeing in Virginia Beach, at least, is that on the terrorism charge [prosecutors] think they can put in everything and anything,” Mr. Cooley said. “I don’t understand how the 9-1-1 tapes are coming in. What possible relevance do they have to whether Muhammad is the triggerman or not?”

Recorded 9-1-1 calls, which usually are excluded as hearsay evidence, can be admitted under exceptions to the hearsay rule. Among the exceptions are the citing of public records, the presentation of facts that challenge the memory of a witness, or because a recording contains what the courts call an “excited utterance.”

Mr. Cooley and Mr. Arif aim to eliminate much of the prosecution’s justification for such evidence in their case.

• Frank Murray contributed to this report.

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