Sniper suspects John Allen Muhammad and Lee Boyd Malvo saw each other for the first time in nearly a year in Prince William Circuit Court on Wednesday.
It was an occurrence that Muhammad’s defense attorneys argued vehemently to prevent.
“I hope to avoid the fiasco that’s about to take place,” Peter Greenspun said. “None of this brouhaha is necessary.”
Prosecutors argued they needed to know if Malvo would testify, and what questions he would answer.
But Malvo, who appeared in court for the first time without wearing a jail jumpsuit, said little. He answered Commonwealth Attorney Paul B. Ebert’s questions without hesitation regarding his name, age and place of birth. But when asked about Muhammad, he balked.
“Upon advice of council, I assert my Fifth Amendment privilege,” Malvo said responding to questions about his knowledge of Muhammad.
Throughout his brief appearance, Malvo seemed to deliberately avoid facing Muhammad, who sat a few yards away.
Afterwards, one of Malvo’s defense attorneys, Craig S. Cooley, said on Malvo’s part there was “a degree of trepidation about appearing [in court] and encountering for the first time in nearly a year Mr. Muhammad.”
Muhammad, 42, and Malvo, 18, are charged with the three-week shooting spree in the Washington, D.C., area that killed 10 people during the fall of 2002. In Prince William County, Muhammad is charged with the shooting of 53-year-old Dean Harold Meyers, who was killed while filling his gas tank at the Sudley Road Sunoco station north of Manassas.
Muhammad has been charged with capital murder under two sections of Virginia law: that he committed more than one murder within three years and that he committed murder during an act of terrorism. Judge LeRoy F. Millette denied another defense challenge on Wednesday to prosecutors’ pursuit of the death penalty.
Defense attorney Jonathan Shapiro argued that the death penalty should not be sought in Muhammad’s case because the capital murder in the commission of an act of terrorism charge conflicts with another Virginia terrorism law.
According to Shapiro, the Virginia legislature enacted two terrorism laws in the same package. One mandated that those convicted of involvement in terrorist acts could be charged with a class two or three felony, which can be punished by five years to life in prison. The other terrorism legislation was an added capital murder statute, making murder during an act of terrorism punishable by death.
“When statutes conflict, the defendant is entitled to the lesser of the penalties,” Shapiro argued. “We’re dealing with one crime with two different available punishments.”
But Assistant Commonwealth’s Attorney James A. Willett argued that the laws were in two separate statutes and there was “no ambiguity between them.”
Millette agreed with the prosecutor and denied the defense request.
Defense attorneys were also rebuffed in their attempts to suppress statements Muhammad made to a Montgomery County police detective and an FBI agent the morning after his arrest.
Greenspun argued that Muhammad, who was arrested on a federal warrant, should have been arraigned before a federal magistrate judge before being interrogated. He also said that interviewers, who spoke with Muhammad for 90 minutes before reading him his Miranda rights, should have done so at the beginning of the interview.
Prosecutors agreed not to use Muhammad’s statements from the first 90 minutes, but defense attorneys wanted the entire interview suppressed. They argued that after Muhammad was read his rights, interviewers shouted at Muhammad and tried to press him into making a confession.
But Millette agreed with prosecutors, ruling that there was no Virginia law requiring Muhammad’s arraignment before questioning. He ruled the questioning proper, since the interviewers read Muhammad his rights as soon as he mentioned a topic they felt could be relevant to the shootings.
Wednesday’s hearing was expected to be the last pre-trial hearing before Muhammad’s trial begins in Virginia Beach Oct. 14. However, attorneys requested an additional hearing next week to discuss Malvo’s potential testimony and possibly a defense motion for a mistrial.
Waving a book compiled by Washington Post reporters and editors, Shapiro argued that the contents of the book included information from law enforcement sources and internal police documents that even he wasn’t privy to.
“There is a plethora of information that not even the defense was aware of, which is an extreme irony,” Shapiro said.
He said the defense would file “some kind of motion,” possibly a request for a mistrial, by Friday.
If filed, it will be discussed at the final pre-trial hearing Oct. 7. Ebert was also asked to submit a list of questions he wishes to ask Malvo. Millette said he will rule on the questions next week.