Prosecutors race to try sniper suspects first

Key factors: implementation of death penalty and desire for political clout.

A week ago, nobody wanted these guys anywhere near their communities.

But now, prosecutors seem to be tripping over one another to get the first shot at putting alleged serial sniper John Allen Muhammad and his teenage companion, John Lee Malvo, on trial for mass murder.

The rush for custody is in part a grab by prosecutors for political clout a week before elections. Add to that a heated debate over the need for efficient use of the death penalty, and the case against Messrs. Muhammad and Malvo begins to resemble more a legal free-for-all than a careful attempt to achieve a measure of justice.

"Everyone in this region felt they were personally being stalked [by a killer], and they are angry about it," says Daniel Polsby, a law professor and death-penalty expert at George Mason University in Fairfax, Va.

There are no settled criteria to determine which jurisdiction should be the first to prosecute. Legal experts say that in complex, high-profile cases, prosecutors usually make key strategic decisions behind closed doors about which venue is the most promising for a conviction.

During a three-week shooting spree beginning Oct. 2, the two alleged snipers left a trail of death and fear in two Maryland counties, the District of Columbia, and four Virginia counties. They allegedly killed 10 individuals and seriously wounded three others. In addition, the two are suspects in killings in Montgomery, Ala., and Tacoma, Wash.

The wide geographic range of the killings is cited by federal officials as a reason they, rather than state and local authorities, should prosecute the suspects. Under that scenario, US prosecutors could rely on the antiextortion Hobbs Act (which would apply to the $10 million the suspects allegedly demanded). Combined with the federal death penalty and new antiterrorism laws, prosecutors could tie many, if not all, of the killings together into one case, legal experts say.

Prosecutors in Montgomery County, Md., were the first to file charges in the case last week. They argue that the first case should be brought there because that is where most of the killing spree took place.

Virginia prosecutors say that the suspects are more likely to receive death sentences in their jurisdictions, so they should go first.

In terms of how prosecutors view the internal dynamics of a capital trial, Virginia would appear to enjoy an advantage over a trial conducted in Maryland or even in federal court, according to some experts. That's because Virginia law permits the execution of 17-year-olds, a fact that could persuade Malvo to plead guilty and testify against Muhammad.

Such a development would overcome several hurdles faced by prosecutors, who are struggling to determine through forensics which of the men pulled the trigger in each of the killings.

In addition, legal analysts say, Virginia has more experience in prosecuting, convicting, and executing capital defendants.

Since the death penalty was reinstated by the US Supreme Court in 1976, Virginia has executed 86 individuals. Maryland has executed three, and there is currently a statewide moratorium on executions (although Gov. Parris Glendening says that won't apply to this case).

To many in Virginia, Maryland is the last place the alleged snipers should face justice.

"If you leave it to Maryland exclusively, the death penalty will never be carried out, or if so, in 25 years," says Mr. Polsby. "Many Virginians feel that justice delayed is justice denied."

But Edward Tomlinson, a University of Maryland law professor, argues the death penalty should not be a factor among the criteria used to decide which jurisdiction should conduct the first trial.

"Montgomery County, Md., has the greatest interest, the greatest number of victims, and the greatest impact on the population," he says. "And the killings there occurred before the ones in Virginia."

Mr. Tomlinson says the serial sniper case "is a sort of poster case for the death penalty." But he adds that it is unclear whether Maryland law authorizes prosecutors to seek the death penalty in the sniper case. The law allows capital punishment for a series of killings, but they have to stem from a single crime, he says, such as a bank robber who kills three guards while trying to get away.

Maryland prosecutors argue that because the first shootings were so close together in time, they qualify as a single crime.

"My sense is that that is a stretch," Tomlinson says. "To apply this to a serial killer is more difficult. The issue has not been resolved by Maryland case law, and it poses a major problem for a capital conviction here in Maryland."

Another factor in the debate is that the suspects are in federal custody. That means, analysts say, that federal prosecutors will have the first shot at a trial – unless Attorney General John Ashcroft decides the case should first be brought in a state court.

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