|
Sniper gets terrorist trial { November 9 2002 } Original Source Link: (May no longer be active)
http://www.washingtonpost.com/wp-dyn/articles/A30173-2002Nov8.htmlhttp://www.washingtonpost.com/wp-dyn/articles/A30173-2002Nov8.html
Case Could Break Legal Ground
Sniper Suspects Charged Under New Va. Terrorism Law
By Fredrick Kunkle and Michael D. Shear
Washington Post Staff Writers
Saturday, November 9, 2002; Page A08
Attorney General John D. Ashcroft said he sent the Washington sniper suspects to Virginia's courts in part because of well-established death penalty law.
But Virginia's prosecutors have charged John Allen Muhammad, 41, and John Lee Malvo, 17, under a new anti-terrorism law that has never been used or interpreted by the courts.
Legal experts yesterday questioned why, if Virginia was chosen because of its long-settled death penalty procedures, prosecutors are relying on an untested law.
"Any new statute is going to raise all kinds of new issues that have to be resolved by the courts," said Richard C. Goemann, deputy director of the Virginia Public Defender Commission.
Muhammad is charged in Prince William County with two counts of capital murder in the Oct. 9 shooting death of Dean Harold Meyers at a Sunoco station. Malvo is facing the same charges in the Oct. 14 death of Linda Franklin outside a Home Depot in the Falls Church area.
One of the counts is filed under a provision of Virginia's death penalty law making it a capital crime to kill more than one person in a three-year period. The other is filed under the anti-terrorism provision, which makes a killing eligible for capital punishment if it is intended to intimidate the public or influence the government.
Prosecutors believe that the anti-terrorism law is written in such a way that they would not have to prove who fired the fatal shot. Under the multiple-killing provision, well-established case law in Virginia would require them to establish the shooter in court. Prince William County Commonwealth's Attorney Paul B. Ebert and his Fairfax counterpart, Robert F. Horan Jr., have not said what evidence, if any, they have to prove who actually pulled the trigger in their cases.
Either way, some experts said yesterday that for a defendant to get the death penalty under the anti-terrorism statute, prosecutors may still have to prove that a person either pulled the trigger in a terrorist act or, like Osama bin Laden, directed or ordered another person to kill in an act of terrorism.
"That's what they had in mind -- getting bin Laden and the guy who flew the plane. Whether it covers the guy who drove to the airport is not clear," said Ronald J. Bacigal, a University of Richmond law professor.
Richard Bonnie, a criminal law professor at the University of Virginia, agreed. "It's not clear, upon a reading of the statute, that the legislation dispenses with the requirement in death cases that the prosecution prove the defendant is the triggerman," Bonnie said.
Bonnie also said the triggerman provision is what has allowed Virginia's capital punishment laws to stand up on appeal. Other states that have sought to impose the death penalty on defendants who were accomplices in fatal robberies, for example, have often had those cases overturned.
"Technically speaking, proof that the defendant was actually the killer is an element of a capital crime. That is Virginia law," Bonnie said.
Virginia Attorney General Jerry W. Kilgore (R), who authored the anti-terrorism law, said he is confident that it will withstand legal challenges if Muhammad and Malvo are convicted.
"We know there will be challenges to the anti-terrorism law," Kilgore said. He said he has faith that Virginia courts will uphold the parts of the law that allow the death penalty to be applied to defendants who are not proven to have pulled the trigger.
"The courts are going to be willing to look at intent," he said. "In this terrorism era, you may be left without a triggerman, but you may be left with someone who did the planning and helped in a very horrible way."
Prince William recently obtained a death penalty conviction for a defendant who did not pull the trigger. Justin Wolfe, 20, was found guilty of hiring a friend to kill his drug supplier. That case is being appealed. Virginia executed David Lee Fisher in 1999 after he was found guilty of hiring someone to kill a fishing buddy in Bedford County.
Another of Ashcroft's decisions this week seems to favor prosecutors. Sending the cases to different courthouses could strengthen the prosecution's hand, particularly against Malvo, a juvenile, experts said. Trying them together could allow a jury to view the juvenile as less culpable than the older suspect, they said.
"As a prosecutor, I'm thinking you have a better chance of getting the death penalty looking at him alone," Bacigal said, referring to Malvo. If the suspects were tried together, a defense lawyer would almost certainly paint Muhammad as the mastermind who manipulated a younger person, Bacigal said.
© 2002 The Washington Post Company
|
|
