- The Washington Times - Wednesday, September 17, 2003

International laws and treaties do not prohibit Virginia from executing juveniles, a judge ruled yesterday in the case against teenage sniper suspect Lee Boyd Malvo.

Defense lawyers had argued that an overwhelming consensus of foreign nations and certain international treaties combine to bar the execution of people younger than 18 at the time of their crime. Mr. Malvo, now 18, was 17 during the sniper spree in October.

“The world has spoken. This isn’t a close call. This is the world against us,” said defense attorney Craig Cooley. “Some things are so absolutely abhorrent to humanity that it is simply unacceptable. We are at that point when we talk about the execution of children.”

Prosecutors rejected the argument that international law trumped state or U.S. law. Fairfax County Commonwealth’s Attorney Robert F. Horan Jr. said the only treaty ratified by the United States that prohibits the execution of juveniles contains a specific exclusion adopted by the U.S. Senate rejecting that part of the treaty.

“Every court that has looked at this issue has uniformly rejected what the defense is claiming,” Mr. Horan said.

Circuit Judge Jane Marum Roush agreed with the prosecutors, saying, “It may at some point be the law of the land. Right now, it’s not.”

Mr. Malvo, and John Allen Muhammad, 42, have been charged with 13 shootings, including 10 deaths, during a three-week span in October in Virginia, Maryland and the District They are also suspected or charged with shootings in Georgia, Alabama, Louisiana, Arizona and Washington state.

Mr. Malvo, who in past court appearances has seemed disinterested in the proceedings, appeared to follow closely the arguments yesterday, at times conferring with his lawyers.

“What you’re seeing is a young man we have recovered from the possession of Mr. Muhammad,” said defense attorney Michael Arif after the hearing. The defense team has argued that Mr. Muhammad brainwashed Mr. Malvo and has indicated that will be an issue at trial.

Mr. Cooley agreed that Mr. Malvo’s demeanor has changed recently, saying that “the process of separation has begun. He has begun to revert to the child he was before two years of indoctrination under Mr. Muhammad.”

The U.S. Supreme Court has ruled that executions of those younger than 16 are unconstitutional. In addition, 12 states have abolished the death penalty and 17 require a person be at least 18 years old at the time of the offense to face execution.

The defense team argued that international consensus is a factor in U.S. law. The U.S. Supreme Court evaluates society’s “evolving standards of decency” when considering whether a punishment is unconstitutionally cruel and unusual, said American University law professor Richard Wilson, who testified at the hearing on behalf of the defense.

Since 2001, Mr. Wilson said, the United States is the only country where someone who committed a crime as a juvenile has been executed.

“International law, which is clearly binding on this court, requires the court to conclude that executions of persons under 18 is prohibited,” he said.

Mr. Horan responded that the defense arguments “just have no basis in case law.”

Judge Roush also rejected a defense motion that would have prevented prosecutors from examining two mental-health evaluations of Mr. Malvo until the sentencing phase of the case begins.

Mr. Malvo’s lawyers have given notice that they plan to present mental-health evidence during the sentencing phase if their client is convicted of capital murder. When such a notice is given, Virginia law allows prosecutors to conduct their own examination and to receive a copy of the defense mental-health report.

Mr. Cooley argued that those reports should be withheld until sentencing because Mr. Malvo is required to cooperate with those examinations, therefore opening the possibility that his words could be used against him at trial.

Judge Roush sided with the prosecutors, who said state law is clear about the need to turn over such reports in a timely manner.

The judge deferred arguments on a request from the defense for more information about DNA evidence that will be used in the case.

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