Sunday, November 16, 2003

CHESAPEAKE, Va. — Prosecutors in the capital murder trial of accused sniper Lee Boyd Malvo can still present a compelling case when testimony begins today, despite not being able to show the jury such key evidence as the Bushmaster .223-caliber rifle purportedly used in the killings, legal experts said yesterday.

The physical evidence temporarily remains in nearby Virginia Beach at the trial of fellow suspect John Allen Muhammad. But legal scholars and veteran prosecutors say Fairfax County Commonwealth’s Attorney Robert F. Horan Jr. has more than enough witnesses, photographs and expert testimony to start making the case against Mr. Malvo.

“He doesn’t have to introduce the evidence right away,” said Samuel Dash, a professor at Georgetown University Law Center. “Initially, [Mr. Horan] has police officers and others who can testify as to the arrest and what they found.”

Mr. Dash said the prosecutor can show the jury photographs of the 1990 Chevrolet Caprice in which Mr. Malvo, 18, and Mr. Muhammad, 42, were sleeping at the time of their Oct. 24 arrest at a highway rest stop near Myersville, Md.

Investigators also can testify about the Bushmaster rifle found in the car and how the trunk was modified to conceal a rifleman firing in the prone position.

“The officer can make a full description of what he found,” said Mr. Dash, a former district attorney for Philadelphia who served as chief counsel for the Senate Watergate Committee.

The use of photographs and witness statements, including emotional testimony from victims and expert testimony about DNA and fingerprint evidence, can often be as compelling as physical evidence to a jury, though the physical evidence eventually must be entered in court as prosecution exhibits.

Prince William County Circuit Judge LeRoy F. Millette Jr., who is presiding over the Muhammad trial, last week said he would not allow the evidence to leave his court until a verdict has been reached. The case went to the jury Friday, and deliberations are scheduled to resume this morning.

A verdict is expected by the end of the week.

Fairfax County Circuit Judge Jane Marum Roush decided Thursday to press ahead with the start of prosecution witnesses today, despite the unavailability of physical evidence. The Malvo trial has moved briskly, with jury selection taking just three days and opening arguments occurring Thursday, five days ahead of schedule.

Judge Rosh recessed the court Friday to give the prosecution time to prepare evidence and schedule witnesses to appear today.

Mr. Malvo and Mr. Muhammad could face the death penalty if convicted for the three-week sniper rampage last fall in the Washington area that left 10 dead and three wounded. Each defendant is charged with two counts of capital murder, one under Virginia’s new antiterrorism law, the other under a serial-killer law.

Mr. Malvo is charged in the Oct. 14, 2002, slaying of FBI analyst Linda Franklin, 47, in the parking lot of a Home Depot store in the Seven Corners area of Fairfax County. Mr. Muhammad, who has been on trial since Oct. 14, is charged in the Oct. 9, 2002, fatal shooting of Dean Harold Meyers, 53, at a Manassas gas station.

“It is a very unique situation … that you have two defendants, both being tried on the same evidence and being tried separately by different courts,” Mr. Dash said. “But you can still go ahead and give all your testimony, all your descriptions and all your photographs and say the evidence itself, when available, will be produced.”

However, Frederick County State’s Attorney Scott L. Rolle, who recently made closing arguments in another capital murder trial, said yesterday the inability to enter evidence beginning with the first day of testimony could disrupt the prosecution’s game plan.

Mr. Rolle said he plans his case by arranging testimony to coincide with entering of the physical evidence. The “rhythm” of the case can be jostled if the jury doesn’t hear the testimony and see the physical evidence in tandem, he said.

“It is possible to start just by calling witnesses who will provide testimony and give no physical evidence,” he said. “The problem with that is it can knock you out of order.”

He said that putting the police officer on the stand who found the rifle and showing the jury a photograph might suffice.

“For me, that would not be enough,” he said. “You want the jury to see the rifle. You could introduce the evidence later or recall the witness to introduce it.”

Nevertheless, Mr. Rolle predicted that the inconvenience of not having the physical evidence at the start of the trial will not jeopardize Mr. Horan’s case.

“It will not hurt them at all,” he said. “At worst, it will delay what they want to do by a couple of days. By the end of the trial [the delay of physical evidence] will not be remembered as a factor at all.”

Mr. Rolle also said the evidence problem at the sniper trials is unusual but not unprecedented.

“Most co-defendants are tried in the same place,” he said. “They would just move the evidence next door, and if the jury wanted to look at it, you would just walk it up the hallway.”

The judges moved the trials 200 miles to the Hampton Roads area of southeast Virginia because they felt potential jurors in the Washington area had been too traumatized by the three weeks of random sniper shootings in October 2002.

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