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Mind Bytes: The Many Trials of Muhammad and Malvo
October 28, 2002

By James L. Hirsen, J.D., Ph.D.
contributor to

A series of trials are about to begin. We can be thankful that among the many jurisdictions that are in a position to prosecute, Los Angeles isn't one of them. Judge Ito and the O.J. jury won't be able to get their mitts on this one.

Scads of prosecutors are frothing at the mouth to get a high-profile conviction and a maximum penalty.

Maryland jumped out first with six counts of first-degree murder against the two sniper suspects. It will seek the death penalty against Muhammad. Its claim to host the first trials is based on the fact that six of the sniper's 10 fatalities occurred in Montgomery County, Md., and, more importantly, it has Muhammad and Malvo in custody.

Maryland can't seek the death penalty against the 17-year-old Malvo, but it still plans to try him as an adult.

Maryland allows the death penalty for multiple murders arising out of the same incident, but the defense will raise a question as to whether the sniper killings constitute the same incident.

Executions have been suspended under a moratorium imposed in May 2002 by Gov. Parris Glendening, but Glendening has said the moratorium will not apply in this case.

Virginia, where three victims were killed, has more ways to get the death penalty than Maryland. The state provides for the death penalty when a killer has the "intent to intimidate the civilian population at large." Virginia, unlike Maryland, allows capital punishment for 17-year-old defendants.

One of the victims died in Washington, D.C., but D.C. does not have the death penalty.

Alabama also got into the act by filing murder charges against the two sniper suspects and plans to seek the death penalty for the fatal shooting of a woman during a robbery in September. Seventeen-year-old Malvo could face the death penalty in Alabama.

Federal prosecutors could also jump in. Normally the feds would defer to the states, but this case is in no way normal.

If federal murder charges are brought, they could be brought in either Maryland or Virginia, two different federal districts.

Possible Defenses

We can expect the prosecution to refer to Muhammad as a Muslim convert and member of the Nation of Islam and Malvo as an illegal alien collaborator. The defense will probably refer to the suspects as a poor, penniless, homeless Gulf War veteran and his young common-law son.

The defense lawyer will try to find flaws in the ballistics evidence, have the suspects evaluated for psychological abnormalities and hunt for police error.

Malvo's attorney will try to portray the older Muhammad as controlling the young, impressionable Malvo.

Malvo's lawyer will be looking for a possible deal in exchange for testimony against Muhammad.

Mental incapacity, although difficult, may be raised. Muhammad served in a combat engineer unit during the Gulf War. His unit destroyed bunkers that contained chemical weapons.

The question of whether one or both of the suspects is the trigger person is a key fact for both sides.

We will probably witness numerous trials and appeals for these guys in the years to come.

If ever there were a case for a swift finale, this is it. The victims cry out for the death penalty. The question is whether our ailing legal system will deliver the goods.

Reproduced with the permission of . All rights reserved

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James L. Hirsen, J.D., Ph.D.

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