Baldwin said it did. "They can have acted together . . . for this particular shooting. One person to line up the car, one person to line up the shooting."
Greenspun noted that the evidence linking Muhammad to Meyers's killing was thin. Muhammad was spotted in the area before and after the shooting at a Sunoco gas station on Route 234 near Manassas, but no one saw the shot fired, and Muhammad's fingerprints were not on the murder weapon.
Several justices asked Baldwin about the physical evidence: how many shootings took place outside the Chevrolet Caprice, the snipers' alleged lair, how long the gunpowder residue was in the car's trunk, and what evidence showed that the bullet that killed Meyers came from the Caprice. Baldwin acknowledged, "There is no direct evidence. This is a circumstantial case."
Shapiro argued that while prosecutors in Muhammad's trial said he was the mastermind of the sniper attacks, prosecutors in Malvo's trial said Malvo was "a free agent, a free thinker, nobody's fool." Shapiro said that the two prosecution theories "could not have been more contradictory" and that that violated due process saying that prosecutors may not use different theories of the same event.
Justice Cynthia D. Kinser noted that Fairfax prosecutors, in their argument that Malvo was a free thinker, were responding to a defense claim that Malvo was temporarily insane. "What's inconsistent," Kinser asked, "in defending against an insanity defense, by showing that Malvo still had the ability to make a decision on his own, and in this case showing that Muhammad was the dominant figure?"
Shapiro said the prosecution's own expert testified that Malvo told him he was not impressionable or weak. Lemons said people on sports teams or in offices take direction from coaches or bosses. "How's that inconsistent with a person retaining his ability to act and his willingness to take direction?" the justice asked.
Prince William Commonwealth's Attorney Paul B. Ebert watched the argument from the front row, along with assistant prosecutors Richard A. Conway and James A. Willett. Relatives of the victim did not attend. Although Ebert has prosecuted more than a dozen death penalty cases, he said it was the first time he had watched one argued at the Supreme Court.
He was hesitant to draw conclusions about the court's direction after the arguments. "Sometimes you think they're with you, sometimes against you," Ebert said. "You never know what they're thinking."