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In Va. Bills, Death Penalty Would Cover Accomplices

By Michael D. Shear
Washington Post Staff Writer
Tuesday, December 21, 2004; Page B01

RICHMOND, Dec. 20 -- Virginia Attorney General Jerry W. Kilgore (R) on Monday proposed state legislation that would make it easier for prosecutors to seek the death penalty in cases like the Washington area sniper killings.

The Death Penalty Enhancement Act, which Kilgore presented as part of a package of anti-crime bills for the 2005 General Assembly, would drop the requirement that the death penalty be applied only to the triggerman in a killing.

Kilgore called the bills a response to the sniper case.

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Kilgore also proposed granting prosecutors new powers to appeal the dismissal of a criminal case. In October, a judge dismissed Fairfax County's charges against convicted sniper John Allen Muhammad. The judge ruled that Muhammad's right to a speedy trial had been violated by lengthy delays in the case.

"This is in direct response to issues involving the sniper trial in Fairfax," Kilgore said at a news conference. "The message is simple: If you significantly participate in a capital murder, you will be eligible for the death penalty."

The message also is intended to help draw a distinction between Kilgore, who is running for governor, and his likely opponent, Lt. Gov. Timothy M. Kaine (D). Kilgore has said repeatedly that Kaine's personal opposition to the death penalty will be one of the key issues in the 2005 campaign.

In a debate with Kaine this month, Kilgore promised to remind voters that his opponent "actually represented death row inmates, those who escaped from prison."

Jeff Kraus, a spokesman for Kaine, said the lieutenant governor's opposition to the death penalty is derived from his religious beliefs but would not interfere with Kaine's determination to enforce the death penalty statutes if he is elected governor.

"I'm not aware of any difference between how the lieutenant governor or the attorney general would enforce the death penalty," Kraus said. "The lieutenant governor will have to look at the specific proposals made today."

In most capital murder cases, prosecutors must prove that a defendant was principally responsible for the killing. There are a few exceptions in state law, such as one that allows the death penalty to be sought in murder-for-hire schemes.

The sniper case involved the slayings of 10 people and the wounding of three across the Washington region in fall 2002. Virginia law forced prosecutors in the sniper case to turn to a terrorism statute, which had never been used, because they were unable to say for sure which of the two defendants fired the fatal shots.

Muhammad was found guilty and sentenced to death in the killing of Dean H. Meyers in Prince William County. Lee Boyd Malvo was sentenced to life in prison for shooting Linda Franklin in Fairfax County.

Bob Bushnell, president of the Virginia Association of Commonwealth's Attorneys, said his group probably would support Kilgore's efforts. He said prosecutors sometimes are prevented from seeking the death penalty.

"They don't occur a whole lot, but when they do, I think it's an injustice to have the death penalty limited to the triggerman as opposed to the mastermind," Bushnell said.

Steven D. Benjamin, president of the Virginia Association of Criminal Defense Lawyers, said Kilgore's proposal would dramatically increase the reach of the death penalty. "By eliminating the triggerman rule, he proposes to eliminate one of the very few criteria in Virginia that ensures that the death penalty is reserved for the worst of the worst," Benjamin said.

He added that if the proposal is approved by the legislature and signed into law by Gov. Mark R. Warner (D), it could lead a court to declare Virginia's death penalty statutes unconstitutional. He said the U.S. Supreme Court has ruled a death penalty is constitutional only if it is applied in a limited number of circumstances.

"The effect would be to weaken the constitutionality of our death penalty by eliminating this fundamental safeguard," Benjamin said.

Warner's office said the governor had not reviewed Kilgore's proposals.

Kilgore also proposed giving communities the ability to sue gangs. And he said he will offer legislation to improve economic development and fight cybercrime.

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