Juvenile's Statements May Muddy Sniper Case

The New York Times reports today that statements by the teenaged sniper suspect may muddy the case.

17 year-old Malvo was sent to Fairfax County, Virginia to face murder charges for one victim. John Muhammed was sent to Prince William County, Virginia to face charges for another victim.

Police have leaked reports that Malvo admitted to being the shooter in both of those killings, as well as in the killing of a man shot at a gas station in Fredricksburg, Virginia.

This information, even if inadmissible against Malvo because the police violated his rights by questioning him in the absence of his guardian ad litem, could be admissible as exculpatory evidence on behalf of Muhammed at his trial. If it is admitted at Muhammed's trial and the Virginia jury finds Muhammed was not the shooter, all of Ashcroft's careful planning and clever scheming might be for naught. In order for the death penalty to apply in capital murder cases in Virginia, the defendant must have been the shooter.

Authorities in Virginia are downplaying the possibility Malvo's statements will help Muhammed. They say their death case against Muhammed is still viable regardless of Malvo's statements because they have also charged Muhammed under the new Virginia terrorism statute.

But that statute has never been tested. It is doubtful it was intended to apply to serial murders. And we have doubts Virginia could even pick a jury under it.

The applicable portion of the terrorism law applies to violent crimes committed with the intent to intimidate the civilian population at large. We think that makes everyone in the civilian population of Virginia a victim, and therefore ineligible to sit on the jury. If Virginia can't seat a jury, they can't try the case and they can't convict.

For reference, § 18.2-31, the Virginia death penalty statute lists thirteen death-penalty eligible offenses. Number 13 is "The willful, deliberate and premeditated killing of any person by another in the commission of or attempted commission of an act of terrorism as defined in § 18.2-46.4."

§ 18.2-46.4. defines an act of terrorism as "an act of violence ... committed with the intent to (i) intimidate the civilian population at large; or (ii) influence the conduct or activities of the government of the United States, a state or locality through intimidation."

We are liking Mr. Malvo's lawyer in Virginia, Michael S. Arif, more and more. He issued a statement Sunday saying "the police were "flooding the media and poisoning the jury pool with their own paraphrasing and subjective interpretations of statements made during an unconstitutional interrogation."

"He said the pattern of disclosures to the news media "suggests an insecurity" on the part of prosecutors "with the admissibility of these statements."

Meanwhile, the Justice Department is now trying to distance itself from the Virginia prosecution. The Times reports, "Justice Department officials who turned the case over to state prosecutors in Virginia said today that they were not tracking the day-to-day developments, like Mr. Malvo's reported statements. "It's a state case now, and we're staying out of this," said a Justice Department official."

We'll be discussing our views of the implications of Malvo's statements today on CNN's TalkBack Live around 3:10 pm Eastern Time.

Two other death penalty sections in Virginia also are likely to fail in our view. The first is

"7. The willful, deliberate, and premeditated killing of more than one person as a part of the same act or transaction."

The snipers never killed more than one person in the same act. The statute does not say it applies to killings that are part of the "same criminal episode" as do the statutes of many other states. Any ambiguity in statutory language is construed in favor of the defendant.

"8. The willful, deliberate, and premeditated killing of more than one person within a three-year period."

Virginia prosecutors think they can use this provision to obtain the death penalty against the snipers. But the two accused snipers in this case have never been convicted of killing before. If they are allowed to introduce evidence of the killings in other states or cases to satisfy the statute, we doubt it would hold up on appeal, particularly once the case hits the federal courts. The defendants can't be considered to have killed other persons unless they have had a trial on those other killings and a jury decided they committed them based upon a standard of proof beyond a reasonable doubt.

< Justice for Emmett Louis Till | Time for a Gag Order in Sniper Case >
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