- The Washington Times - Wednesday, October 1, 2003

Lee Boyd Malvo showed little emotion, but made eye contact yesterday with fellow suspect John Allen Muhammad, 42, during a circuit court appearance where the 18-year-old invoked his Fifth Amendment right to protection against self-incrimination.

Mr. Malvo appeared during a pretrial hearing in Manassas for Mr. Muhammad in the Prince William Circuit Court, where prosecutors wanted to see if Mr. Malvo would testify. He did not.

It was Mr. Malvo’s first encounter with the man his attorneys claim brainwashed him into taking part in the sniper shootings that began one year ago today and left 10 dead and three wounded in the Washington area.

Mr. Malvo, who his attorney said was anxious, remained composed, spoke in a loud, clear voice, giving only his name, age and place of birth before invoking his Fifth Amendment right in response to two questions.

“Under the advice of counsel, I invoke my Fifth Amendment privilege,” Mr. Malvo said both times.

Prince William Commonwealth’s Attorney Paul B. Ebert became exasperated and asked Judge LeRoy F. Millette Jr. whether Mr. Malvo could refuse to answer his questions. His questions were, “Do you know the defendant Mr. Muhammad?” and “Do you intend to testify concerning your activities while in this country?”

Judge Millette asked Mr. Ebert to submit his questions in writing so he and Mr. Malvo’s defense attorneys could review them and determine whether the Fifth Amendment applied. The court will take up the issue again on Tuesday, although it is not clear whether Mr. Malvo will attend.

Craig S. Cooley, one of Mr. Malvo’s lead attorneys, said he thought his client would appear on Tuesday, but Mr. Ebert said he did not think his witness would, and one of Mr. Ebert’s assistant commonwealth’s attorneys said the matter was not determined.

Mr. Malvo entered the courtroom after more than two hours of motions, which included a desperate attempt by Mr. Muhammad’s attorney, Peter D. Greenspun, to keep the young man from appearing. Mr. Greenspun said the media attention would make it more difficult to find an unpolluted jury pool once Mr. Muhammad’s trial begins Oct. 14.

“Our hope was to avoid a fiasco, which is about to take place,” Mr. Greenspun said as Mr. Malvo waited to enter.

Mr. Malvo and Mr. Muhammad, an Army veteran and divorced father of three, have been linked to the 13 sniper shootings last October along with at least six other shootings, five of them fatal, around the country.

Mr. Malvo’s attorneys say Mr. Muhammad had their client “under a spell” by virtue of brainwashing and emotional dependence. Mr. Malvo was raised by a single mother who left him in Antigua, where he met Mr. Muhammad in 2000.

Mr. Malvo’s attorneys have said in recent weeks that the young man, who was 17 at the time of the shootings, had undergone a “transformation” and that his mind is no longer in the clutches of his former mentor. Instead of books on Islam and race wars, Mr. Malvo now has books on chess spread around his Fairfax cell, and has been more upbeat and animated in court appearances.

But he was nervous and scared at the thought of facing Mr. Muhammad for the first time since the two were apprehended around 3 a.m. on Oct. 24 at a rest stop near Frederick, Md., Mr. Cooley said.

“There’s a certain amount of trepidation about being brought into Mr. Muhammad’s presence,” said Mr. Cooley.

Mr. Malvo wore a light-blue, button-down dress shirt, in contrast to the dark-green jumpsuit he wears at the Fairfax County Jail. Sitting 10 feet from the man he called “father,” he was flanked by two sheriff’s deputies and by Mr. Cooley. For the first few minutes, Mr. Malvo did not look in Mr. Muhammad’s direction.

Mr. Muhammad, whose posture had stiffened as soon as Mr. Malvo’s entry was announced, kept his gaze fixed steadily on Mr. Malvo the entirety of his time in the room, which was about 10 minutes. Mr. Malvo looked over at Mr. Muhammad four or five times, appearing to make eye contact and holding Mr. Muhammad’s gaze for long periods.

The young man’s expression changed little.

Mr. Ebert would not say whether by summoning Mr. Malvo he was trying to make way for the young man’s earlier admissions to the shootings in Mr. Muhammad’s trial. Mr. Malvo has admitted on two separate occasions that he had shot several of the sniper victims.

If Mr. Malvo refuses to answer questions related to his testimony in court, his previous statements would be admissible in Mr. Muhammad’s trial.

The witness, Mr. Malvo, would at that point be technically “unavailable,” Mr. Cooley said.

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