Death penalty upheld in sniper trial

A Fairfax Circuit Court Judge upheld Virginia death penalty statutes Monday and barred cameras from the court room for the November trial of Lee Boyd Malvo, 18.

Malvo’s lead defense counsel, Michael Arif, argued that Virginia’s death penalty statute was too vague to be constitutional, that it didn’t provide enough guidance to sentencing juries, and that it relied on a standard of probability.

“These arguments have been made for 26 years and have been uniformly rejected,” Fairfax Commonwealth’s Attorney Robert F. Horan Jr argued. “What troubles me is that the argument is made that all of these cases [of precedent] are wrong as if the Supreme Court of Virginia is wrong.”

Horan added that the U.S. Supreme Court has yet to reject a capital case appealed from Virginia for any of the reasons argued by Malvo’s defense team. Virginia has executed 87 people since the death penalty was reinstated in 1976, second only to Texas.

“The ruling is as expected,” Arif said afterwards. “I didn’t expect Judge Roush to do anything dramatic. Frankly, there’s not much she can do.”

Questions of unconstitutionality of Virginia’s death penalty was just one of 13 motions Judge Jane Marum Roush’s heard Monday.

Roush denied requests for still photography during the trial from newspapers, wire services and the Virginia Press Association. An attorney representing electronic media was also denied. Roush did allow a request from the county attorney’s office for closed circuit camera. It will broadcast to a large hall, open to the public, in the Fairfax County Government Building.

Roush suggested that the closed circuit camera also feed to the Fairfax County Sheriffs Department, so that the court could safely accommodate another of the defense requests: limiting the number of law enforcement officers sitting or standing near Malvo during the trial. About six deputies will be in the courtroom during the trial. Defense attorneys argued that excessive guards might prejudice jurors.

Malvo’s defense team also successfully lobbied for a mental health expert to evaluate Malvo and private investigators to help them comb through evidence. Afterwards, Horan said his office had provided the defense team with 600 pages of Malvo’s statements to law enforcement officials and “half a box full of forensic reports.” The sheriffs’ team had requested five investigators, but only three were authorized.

Much of Monday afternoon was taken considering a 57-paragraph request from defense attorneys for various types of evidence from prosecutors. Roush went through the document by paragraph, taking argument from both sides, granting some of the requests, some in part, and denying others.

She ruled that the defense should be allowed to see the 50,000 to 70,000 tips prosecutors say they received during the sniper shootings. Malvo and his alleged accomplice, John Allen Muhammad, 42, are accused of shooting 19 people, and killing 13, in Virginia, Maryland, Washington D.C., Alabama, Georgia and Louisiana. Muhammad is scheduled for trial in Prince William County beginning in October 2003.

Malvo appeared composed throughout Monday’s proceedings, periodically whispering to his attorneys. He exited and entered the court room unhurriedly, despite his escort of deputies. He did not seem visibly “at the end of his wire,” as Arif described him after the hearing.

Arif said his client’s housing changed on his 18th birthday, Feb. 18. He was moved from a single cell by himself in the Fairfax jail to one near receiving with “all types of people” in the neighboring cells and is not sleeping well, Arif said.

The court set three more dates for further motions: March 31, April 28 and June 2. One motion under consideration will be a defense request to limit autopsy and crime scene photographs tabled at Monday’s hearing. Roush said she would wait to rule on the photographs until she has seen them.

All parties said they think the scheduled dates will assist both sides to prepare for trial on the scheduled Nov. 10 date. Roush made it clear several times Monday that she expects both sides to be ready for trial in November.

Staff writer Maria Hegstad can be reached at (703) 368-3101, Ext. 121.