Within 30 days, Fairfax Circuit Court Judge Jane Marum Roush will decide whether Lee Boyd Malvo, 18, will be tried in Fairfax or in an undetermined Virginia court.
The change of venue motion was one of five Malvo’s defense attorneys brought before the court Monday. The defense team also sought to invalidate the indictment against Malvo, gain additional information about ballistics and DNA tests, and requested a handwriting expert.
Defense attorneys argued that it would be impossible to get a fair trial in Fairfax for Malvo because potential jurors will come from the same group of people who were impacted by the sniper shootings and thus could not be impartial jurors. Fairfax Commonwealth’s Attorney Robert F. Horan Jr. argued the court should attempt to impanel a jury in Fairfax before making the decision.
Cooley also argued that media attention the case has received in Fairfax has tainted potential jurors. The only witness during Monday’s hearing was a circulation director from the Washington Post who answered Cooley’s questions about the Post’s circulation in Fairfax. Cooley said after the hearing he would suggest the trial be moved somewhere south or west of Richmond.
Horan said the prosecution’s theory of the case was that the snipers’ intent was to coerce the government into paying the demanded $10 million, not to intimidate the public. Afterwards, he said cost is a huge factor in his opposition to moving the trial.
Defense attorney Michael Arif told reporters after the hearing that deciding to request a change of venue had been a difficult.
“It’s not a decision we came to easily,” Arif said. “Was it a good decision? I don’t know.”
Malvo’s attorneys also argued Monday that charges against him in Fairfax were invalidated by federal charges filed and then dropped before Malvo was indicted in Virginia. By Virginia law, prosecutors cannot prosecute a defendant for a crime already under prosecution by federal authorities. Roush struck down the argument, because the federal indictment didn’t name Linda Franklin, 47, the FBI analyst Malvo is charged with murdering in a Fairfax Home Depot parking lot.
Malvo was charged by federal prosecutors in Baltimore with traveling between Maryland and Virginia “with the intent to commit violent crimes, to wit, murder,” after his arrest in October 2002. These charges were dropped when U.S. Attorney General John Ashcroft decided Fairfax prosecutors and Prince William would be the first to try Malvo and his alleged accomplice, John Allen Muhammad, 41.
Horan successfully argued that the federal indictment never specifically mentioned Fairfax County or Linda Franklin. After the hearing, Horan said he specifically asked the federal prosecutor in Baltimore “not to name anybody in Virginia,” because of the Virginia law.
The defense team also sought additional information from prosecutors, including the working notes of ballistics analysts and raw data of DNA analysts. Roush ruled with prosecutors on most of these requests. The defense will receive some of the information they were seeking about the Federal Bureau of Investigation lab where DNA evidence in the case has been analyzed.
Two plastic bags found near notes at two of the shooting scenes have DNA attributable to Malvo, Horan said Monday. Defense attorneys requested a handwriting expert, arguing if the author of the note could be determined, it would enlighten jurors as to the defendants’ alleged roles in the conspiracy. Prosecutors argued a handwriting expert was unnecessary, because of the DNA. Horan said since the notes were written block letters, an expert would be unable to determine who wrote the notes. Roush appointed an expert with a $2500 maximum budget to the defense.