Virginia's strategy in the sniper trial

By Warren Richey

WASHINGTON - Who pulled the trigger?

In capital murder trials in Virginia, the answer to that question means the difference between life in prison or death by execution for a convicted killer.

But what happens under the state's "triggerman rule" when two individuals allegedly participate in a series of random, fatal shootings that terrorize an entire region, yet there is evidence that only one of them fired the rifle?

That is a central issue raised in the case of alleged Washington-area sniper John Allen Muhammad in a trial whose opening arguments are set for Monday in Virginia Beach.

Mr. Muhammad, 42, and Lee Boyd Malvo, 18, are suspected of launching sniper attacks against 13 individuals over a three-week period last October. Ten victims died. Investigators are also looking into 10 other shootings, including three fatalities, in Alabama, Georgia, and Louisiana.

Following a tug of war among various state and federal prosecutors, Attorney General John Ashcroft turned the suspects over to state prosecutors in Virginia. It was assumed that there they would face the fewest hurdles in obtaining death sentences for Muhammad as well as Mr. Malvo, who faces trial in nearby Chesapeake on Nov. 10.

Although there is substantial evidence implicating both of them in the shootings, the case is anything but a cakewalk to death row. It remains unclear whether prosecutors have enough evidence to justify a death sentence for Muhammad under Virginia's triggerman rule, analysts say.

Specifically, Muhammad is charged in the killing of Dean Meyers at a gas station near Manassas, Va., on Oct. 9, 2002. Malvo, however, has reportedly made statements that he was the shooter in the Manassas killing. In addition, authorities have said they found only Malvo's fingerprints on the weapon when it was seized following the arrest of the two suspected snipers on Oct. 24.

Prosecutor Paul Ebert has suggested he will argue for an expansive interpretation of the triggerman rule. He says the state will prove that Muhammad and Malvo operated as a killing team and that Muhammad was the driving force behind the killings by exerting complete control over Malvo, who was 17 at the time of the shootings.

In addition, Mr. Ebert has filed a second capital murder charge against Muhammad under a new antiterrorism law passed after the Sept. 11 attack on the Pentagon. The law makes the killing of an individual during an act of terrorism a capital offense in Virginia. But most important, the new law bypasses the triggerman rule so that anyone involved in the planning of a terror attack (but who did not participate in the attack itself) may also face the death penalty.

The law has not yet been tested in the courts.

David Albo, the Virginia delegate who authored the bill, says the law was passed to close what lawmakers saw as a legal loophole. Had Osama bin Laden been arrested following the Sept. 11 attack on the Pentagon, he would not have faced the death penalty in Virginia even though he allegedly planned it, paid for it, and ordered it, Mr. Albo says.

The new law broadly defines terrorism to include any act of violence committed with intent to intimidate the civilian population or influence the conduct or activities of government officials through intimidation. There is no requirement that the violence be politically motivated.

Prosecutors say that part of Muhammad and Malvo's motivation in the shootings was to extort $10 million from the government as payment for them to stop the killing. The pair terrorized the civilian population to increase leverage on the government to make the payment, they say.

"The allegation is that Muhammad was the Osama bin Laden of this. He arranged it, set it up, and ordered the killings," says Albo.

Ronald Bacigal, a professor of criminal law at the University of Richmond Law School, says if Virginia courts uphold the prosecutors' theory in the Muhammad case, it will mark a significant expansion of the state's triggerman rule.

"Their theory is that you are really talking about two killers, one who actually pulled the trigger and the other who orchestrated the whole thing," Mr. Bacigal says. "That is a novel approach that has never been considered in Virginia."

He says prosecutors may be on firmer ground relying on the terrorism statute. He doubts the legislature intended to classify a crime spree as an act of terrorism, but he says the law is written in such broad language that the Virginia courts may uphold it.

Others suggest that the broad language renders the terrorism statute unconstitutionally vague because it lacks the specificity in death-penalty laws required by the US Supreme Court. It was this requirement that led Virginia to develop the triggerman rule in the first place, analysts say.

Steven Rosenfield, who has represented defendants facing the death penalty in Virginia, says the Muhammad case may be problematic for prosecutors. "He [Muhammad] has two excellent lawyers who can argue strongly about the fact that he didn't pull the trigger," he says. "That is an important factor and is likely to give pause to jurors" weighing a death sentence.

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