- The Washington Times - Thursday, October 23, 2003

A Fairfax County judge yesterday denied prosecutors’ request to delay the Lee Boyd Malvo sniper trial, calling the upcoming proceedings “an unstoppable train.”

Prosecutors on Wednesday asked for the trial to be delayed a month to Dec. 10 so they could better prepare for the insanity defense Mr. Malvo’s attorneys announced they would present.

“This is not a typical case where somebody can come in and give curbstone opinion,” Fairfax County Commonwealth’s Attorney Robert Horan said in his argument for more time.

Mr. Horan argued that he would need more time for a mental health expert to examine the sniper suspect because defense attorneys had “sandbagged” the prosecution by waiting until this month to reveal they plan to present an insanity defense.

Defense attorney Craig S. Cooley opposed the motion and said the defense team was never required to notify prosecutors of plans to use an insanity defense.

Circuit Judge Jane Marum Roush agreed: “If it is sandbagging, then it’s statutorily sanctioned sandbagging,” she told Mr. Horan.

However, Judge Roush said the prosecution’s expert could evaluate Mr. Malvo during jury selection and that she would consider granting breaks in the trail if the expert needs more time.

Judge Roush said 250 prospective jurors and 35 witnesses already have made plans in anticipation of the trial’s Nov. 10 start in Chesapeake, Va.

Mr. Malvo, 18, is charged with two capital murder counts in the shooting death of Linda Franklin, 47, at a Falls Church Home Depot on Oct. 14 last year. One count is under the state’s new antiterrorism statute and one for killing more than one person in three years; both charges carry the death penalty.

He and fellow suspect John Allen Muhammad, 42, are accused of killing 10 persons and wounding three others during a three-week sniper spree last October. The pair also have been linked to nine other shootings, five of them fatal, that occurred across the country between February 2001 and September last year.

Mr. Muhammad’s trial began last week in Virginia Beach. Both trials were moved because of pretrial publicity.

The teenager’s attorneys have put forward the idea their client was “under the spell” of the elder sniper suspect.

Earlier yesterday, Judge Roush ruled against Mr. Malvo’s attorneys after they argued that Virginia’s antiterrorism law does not apply to their client and he should not face the death penalty.

The defense lawyers said the antiterrorism law was created in response to acts of war against the United States. But prosecutors said the 13 sniper shootings fit the definition of terrorism, even if the shooting spree was not what lawmakers had in mind when they passed the legislation.

Judge Roush also denied a defense motion for daily transcripts from the Muhammad trial.

She also denied a defense motion to dismiss Mr. Malvo’s confession to police and FBI investigators because of a malfunction in a tape machine that recorded his statement after he and Mr. Muhammad were arrested.

The tape machine resulted in a 17-minute span in which the conversation between the suspect and investigators is not clear.

“Sometimes, mechanical things break,” Judge Roush said. “It’s unfortunate.”

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