- The Washington Times - Monday, October 6, 2003

Lee Boyd Malvo and John Allen Muhammad no longer are laughing and, instead, have turned on each other with just days before the first trial on murder charges from 10 sniper slayings that paralyzed the region a year ago.

Now it is the two vagabond buddies, arrested with the stolen Bushmaster rifle they claim to have found, who seem caught “like a duck in a noose” — in the words of an extortion note prosecutors say the pair wrote.

Both men’s strategies for trial in two Tidewater cities appear to focus primarily on saving their own lives. One pretrial decision at a time, they appear to be losing the battle to avoid conviction for the wave of shootings that their own attorneys say so terrorized the capital region that the trials cannot be held near the scene of the crimes.

Mr. Muhammad, 42, is charged in the Oct. 9, 2002, killing of Gaithersburg civil engineer Dean H. Meyers, 53, at a Manassas-area service station, and killing “at least one other person” within three years. He also is charged with plotting to strike fear into the civilian population and/or intimidate government officials into paying them $10 million. Mr. Muhammad also is charged with “use or display” of a gun in the killing, and conspiracy.

Except for the conspiracy count, Mr. Malvo, 18, faces identical charges in the killing of FBI analyst Linda Franklin, 47, of Arlington, Oct. 14, 2002, in the parking garage of a Home Depot store at Seven Corners in Fairfax.

Prince William County prosecutors portray Mr. Muhammad, an Army veteran of the first Gulf war, as the domineering captain and “moving spirit” of a “killing team” that included him and his brainwashed young acolyte.

Defense attorneys seek what one terms “a constitutional defense” — some obstacle to prosecution or execution on the grounds that civil rights were violated during arrest, detention or trial.

So far, state judges are turning away most of the defense attorneys’ pleas but it remains to be seen if two Virginia prosecutors with a combined 73 years of experience can deliver on state Attorney General Jerry W. Kilgore’s written vow to U.S. Attorney General John Ashcroft: “Virginia has tested and proven criminal statutes under which these murderers can be tried and sentenced to death.”

Terror law tested

Mr. Kilgore’s spokeswoman, Carrie Cantrell, tells The Washington Times his assurance never applied to the state’s untested terrorism law.

“In that letter he was specifically thinking of definitions that had been tried … including killing more than one person in a three-year period,” Mr. Kilgore’s spokeswoman said.

Fairfax County Commonwealth Attorney Robert F. Horan said he is confident the novel terrorism law will be upheld. “It’s not even close. I think people get confused that, because it’s a terrorism statute, you have to be a Middle Easterner with a bomb in your hands,” he said in an interview.

For Prince William County Commonwealth’s Attorney Paul E. Ebert, that law is his best hope to avoid having to prove Mr. Muhammad ever pulled the trigger.

“We don’t have to worry about proving the so-called actual participant in that case, but we do have to show that someone other than the actual triggerman ordered or directed the actual shooter,” Mr. Ebert says.

Though the pretrial maneuverings are not fully resolved — even after the dramatic Wednesday court confrontation over whether the Muhammad prosecutors may subpoena Mr. Malvo to testify against him, an issue to be resolved tomorrow— it now is clear that each defendant will blame the other. The trials are set to start Oct. 14 in Virginia Beach for Mr. Muhammad and four weeks later in nearby Chesapeake City for Mr. Malvo. Insiders predict the judges will not delay either case.

Ironically, it also seems clear that the prosecution theories in each trial match the defense theories in the other.

Prince William County prosecutors portray Mr. Muhammad as a canny puppeteer who taught his young follower sniper skills, and directed his crimes down to ordering Mr. Malvo when to fire.

Fairfax County prosecutors offer a contradictory version — a kind of “Malvo the magnificent” who needed no coaching to become the monster willing to kill children, to underscore the demand to Montgomery County Police Chief Charles A. Moose for $10 million to stop the killing.

Police cite confession

Fairfax detective June Boyle and others testify that Mr. Malvo, who was still 17 while the snipers roamed, laughed boastfully and confessed in detail more than once. Those confessions are the cornerstone of Mr. Horan’s case against him.

Mr. Ebert, who leads the three-man team prosecuting Mr. Muhammad, tells The Times his defendant said nothing incriminating.

“He talked but he didn’t say anything,” Mr. Ebert says.

Maryland prison guard Cpl. Wayne Davis testified that in one such conversation the day after the men’s Oct. 24 arrest, Mr. Malvo said he personally did all the shootings.

“He said his father would give him ‘the go,’ whatever that means,” Cpl. Davis testified during a July pretrial hearing before Fairfax Circuit Judge Jane Marum Roush. She rebuffed claims those confessions are inadmissible because no lawyer, parent or guardian was present.

The Malvo defense team — which did not respond to numerous requests to discuss legal issues for this article — enters this month’s final pretrial maneuvering positioning its client as an impressionable child controlled by a domineering father figure.

On Sept. 17, Michael S. Arif, who leads the Malvo legal team, told reporters they finally are seeing “the real Lee Malvo,” chatty and smiling at a hearing after he shed his master’s preaching about a race war.

“He was so programmed. … We finally got him out of Muhammad’s clutches,” Mr. Arif said then.

Muhammad defense chief Peter Greenspun was willing to discuss a prosecution he says is framed as much by political considerations as by law.

“We’ve attacked the terrorism statute because it’s invalid. The attorney general made his decision, and anybody who suggests it was not a political decision as opposed to a well-reasoned legal and evidentiary decision is fooling themselves,” he says.

“The prosecution theories clearly are at odds with each other. The Prince William prosecutors maintain that Mr. Muhammad had control and direction over Mr. Malvo. Fairfax prosecutors maintain Mr. Malvo was an adult, free-thinking and bright,” Mr. Greenspun says.

He predicts the Muhammad trial will last about half as long as the official estimate that it will go from Oct. 14 to Dec. 12.

Mr. Ebert, who is prosecuting Mr. Muhammad, agrees with the Malvo defense analysis and hopes it will persuade his jurors to send Mr. Muhammad to death row. Mr. Ebert concedes there is no proof the older man pulled the trigger in any of the sniper slayings, but proof he directed the scenario would cast Mr. Muhammad in the role of a “principal in the first degree.”

Circumstantial case

Mr. Ebert says the theory Mr. Muhammad was something of a Svengali to Mr. Malvo is compelling. “I’m sure that Malvo didn’t have much influence over Muhammad.”

Mr. Ebert tells The Times his case is strong but purely circumstantial, with no eyewitness or admissions.

“We don’t have any eyewitnesses. We have to prove that circumstantially. Malvo has claimed to be the triggerman in most cases. Even though he actually pulled the trigger, we think, we hope, we’ll be able to show to the court’s satisfaction that they both participated as principals in the first degree,” Mr. Ebert says.

“Fairfax got a confession. They can put on evidence from two or three of these murder cases, the confession, and they’re through,” Mr. Ebert adds.

Mr. Horan snorts at the words of his friend, whose term as prosecutor began nine months after that of Mr. Horan, who’s held office for 37 years. “Ebert’s one of the best prosecutors ever seen in these parts. He always poor-mouths his cases before he starts, but check his track record,” Mr. Horan says.

And the Fairfax prosecutor says he never views circumstantial evidence as second-class.

“You can really argue the unbroken chain of circumstances that point to the defendant. The circumstances don’t change. They don’t lose memory,” he says.

Mr. Muhammad’s chief lawyer, Mr. Greenspun, hinted that despite the Fifth Amendment guarantee against self-incrimination that likely blocks prosecutors from using Mr. Malvo, the accused killers could call each other as defense witnesses.

“They can try to,” he says in an interview, without hinting if he might agree after the Muhammad trial to let his client testify for the Malvo defense.

“I don’t think that’s going to happen in my lifetime,” Mr. Horan says. “I guess that’s theoretically possible, but very, very doubtful.”

Attorneys for Mr. Malvo, who is charged in Fairfax, fought successfully in Prince William court for access to evidence that Mr. Ebert’s team will use to prove control to the Muhammad jurors.

Conspiracy charge

Because Mr. Ebert also charged Mr. Muhammad with conspiracy, he may eventually get to use Mr. Malvo as an indirect prosecution witness. The conspiracy charge opens the way to introduce “any act or statement by a co-conspirator in furtherance of that conspiracy. In other words, what they did together before they were arrested,” he says.

This could include recordings or physical evidence of Mr. Malvo’s words to others, including taunting telephone calls he admits making, and extortion notes found at shooting scenes. Two of those notes say, “Call me God.”

The inherent conflict in prosecution theories — and a likelihood the Malvo trial will start before the Muhammad trial ends — is expected to create difficulties, if only because witnesses and physical evidence may be needed simultaneously in courts 19 miles apart.

“I think we’re going to be able to work out the mechanics of that without a lot of problems,” said Mr. Horan, who predicts the second trial will end by the second week of December. “The only nightmare I have is if the thing goes past Christmas.”

Mr. Horan acknowledges that prospective jurors in Chesapeake will be aware of the Muhammad trial in neighboring Virginia Beach, and doubts it will be any easier to select a jury than it would be in Fairfax.

“Anyone on the panel who has paid too much attention to the Prince William trial will probably not make it on the jury anyway,” says Mr. Horan. “The great reality of jury selection is the vast majority of the American people’s primary interest is what they’re going to be doing tomorrow, at work, at school, at play.”

Defense attorneys are barraging both courts with more than 100 motions that attack the “tested and proven” laws under which their clients are charged, and mental-health issues and other mitigating factors that could buttress arguments for leniency.

Both defenses seek, without success so far, to force prosecutors to show their hands on case details, and to explain how each witness and bit of evidence relates to their cases. But even when they win an order for more specifics, they get little.

Vague particulars

When Judge Roush ordered Mr. Horan to supply a “bill of particulars” on the terrorism count against Mr. Malvo, the full disclosure was notably unspecific: “The act of terrorism relied upon by the Commonwealth in Count I of the indictment was done with the intent to influence the conduct or activities of the government of the United States, a state or locality through intimidation.”

Mr. Ebert says he will argue the team intended to terrorize both the people and the government. “Our tack will be that he was terrorizing the people in order to get the governments to give him money,” he says.

Prince William Circuit Judge LeRoy F. Millette Jr. vetoed another prosecutorial theory without ado. Assistant Prince William prosecutor Richard A. Conway claimed a “triggering event” in the chain of murders was Mr. Muhammad’s resentment that his ex-wife, the former Mildred Denise Green of Clinton, got custody of their three children, and was Mr. Muhammad’s ultimate target.

Evidence whose relevance jurors must decide includes the stolen Bushmaster .223-caliber rifle used in the killings, and the nearly identical rifle Mr. Muhammad bought in 1999 and sold in 2000 when he was under a domestic restraining order. Both came from Bull’s Eye Shooter Supply in Tacoma, Wash.

Other evidence includes a Global Positioning System unit that pinpoints locations by satellite, a laptop computer containing maps of shooting sites, fragments of bullets and shells, and unexplained “suspected fecal matter” seized from their dilapidated Chevrolet Caprice after the early-morning arrest Oct. 24.

There also is the .308-caliber rifle that prosecutors say Mr. Muhammad used for range-practice by his de facto ward. “He was teaching Mr. Malvo how to shoot, is what the evidence is going to show,” Mr. Conway told Judge Millette.

Most evidence will be presented by crime-lab technicians who specialize in ballistics, DNA, fingerprints, hair samples, handwriting and voice comparison.

Defense attorneys have been objecting both to the vagueness of listing DNA samples by code numbers and to techniques for comparing them with saliva samples from the two prisoners.

“John Allen Muhammad, by counsel … notes his objection to each and every eyewitness, voice and handwriting identified by any witness to be presented by the Commonwealth,” Mr. Greenspun argued in legal papers that also attacked any photo-lineup identifications.

Surprise witness

On Sept. 12, Judge Millette ordered prosecutors to show handwriting and voice evidence to Mr. Muhammad’s lawyers, and detail identification procedures they intend to introduce at the trial.

Despite the reported absence of eyewitnesses to any shooting, Mr. Ebert produced a surprise witness who testified last month that he saw the blue Caprice parked backward at Benjamin Tasker Middle School in Bowie an hour before Iran Brown, 13, was shot and wounded there.

Chiropractor Gerald Driscoll testified he saw Mr. Muhammad at the wheel with “a smile-ish smirk on his face” while Mr. Malvo scampered into the rear of the car, where authorities say a sniper perch with a shooting port was rigged.

Mr. Malvo told another Maryland jail guard that the nonfatal shooting of the schoolboy was an attempt “to get Chief Moose upset” after abandoning a plan to fire on a school bus.

Mr. Malvo pointed investigators to the laptop, saying “It’s all in there.” The contents have not been disclosed except that they are said to include maps of the areas around some shooting scenes.

The first trial is expected to produce evidentiary surprises because a considerable number of exhibits are “under seal.” They include evidence of “unadjudicated acts,” other crimes that escalate a single murder to a death-penalty offense.

Though Virginia has used the serial-killing law for a quarter-century, some lawyers still disagree on whether proof of a crime for which the defendant is technically not on trial should be part of the punishment phase or of the trial proper.

Mr. Horan says the Malvo defense was sent sealed notices of 10 accusations he plans to introduce at the trial for killing Mrs. Franklin.

“He is not charged with the second crime, but it is part of our case in chief and we have to prove it beyond a reasonable doubt,” Mr. Horan says.

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