On the eve of John Allen Muhammad's trial in October 2003, Lee Boyd Malvo had a sudden change of heart: He was ready to testify against his former mentor and cut a deal to save his life, one of his attorneys revealed yesterday.
So Malvo was taken under heavy guard to Prince William County Commonwealth's Attorney Paul B. Ebert's office less than two weeks before Muhammad's trial. For the next few hours, defense lawyer Michael S. Arif said, Malvo detailed his entire relationship with Muhammad and how it evolved into the sniper slayings that claimed 10 lives in the Washington region.
Lee Boyd Malvo and defense attorney Michael S. Arif in court last year.
A deal was on the table: Ebert would agree not to seek the death penalty against Malvo in exchange for Malvo's guilty plea and testimony in Muhammad's trial two weeks later, Arif said. But the deal fell apart, he said, when other authorities whom he did not name learned of it and pressured Ebert to drop it.
Arif made his disclosures yesterday after hearing of Ebert's reaction to the U.S. Supreme Court ruling banning the execution of juveniles. Malvo was 17 when he participated in the sniper shootings in October 2002.
Ebert said he was disappointed by the ruling. With no possibility of a death sentence, Ebert said he would not prosecute Malvo, 20, citing the cost and the fact that Malvo has received life sentences for sniper slayings in Fairfax and Spotsylvania counties.
The veteran prosecutor yesterday called Malvo part of "a killing machine . . . one of those juveniles that are older than his age" and "the worst of the worst."
Arif heard those comments and responded, "You should ask Mr. Ebert why he was negotiating with us for life [sentences] in exchange for Lee's testimony prior to his trial."
Arif said "the only reason that deal fell apart is he [Ebert] got pressure from the task force." Arif said he did not know whether that meant other Virginia prosecutors or the federal authorities who initially arranged for the case to land in Virginia, where the execution of juveniles was permitted.
Ebert did not return phone calls last night after Arif revealed the plea negotiations. Fairfax County Commonwealth's Attorney Robert F. Horan Jr., who prosecuted Malvo separately, declined to comment.
In the fall of 2003, Malvo and Muhammad went on trial a month apart on capital murder charges in separate sniper slayings. Muhammad was convicted first, in the slaying of Dean H. Meyers in Prince William, and a jury sentenced him to death. Malvo was convicted in the slaying of Linda Franklin in Fairfax, but the jury chose a life sentence instead of death.
Malvo had remained loyal to Muhammad for months after his arrest, calling him his father. But shortly before Muhammad's trial, Malvo called his attorneys and demanded a meeting, Arif recalled.
At the meeting, Arif said, "Lee said, 'I'm not going to die for what he did.' " Arif said Malvo's meetings with a teacher and investigator from his native Jamaica had produced a breakthrough. "Up to that point, we were banging our heads against the wall," Arif said.
Once inside Ebert's office, "he was telling them everything that happened," Arif said. "How they met, the whole shooting match." But the deal fell apart, and case law prohibits prosecutors from using any information gained in plea bargaining sessions. Two law enforcement sources close to the sniper prosecutions confirmed Arif's account.
Horan said earlier yesterday that he disagreed with the Supreme Court's ruling on juvenile executions and pointed to Malvo's case. "The Supreme Court has, in effect, said we were wasting our time in trying a guy that was involved in 10 willful, deliberate, premeditated killings," Horan said.
Douglas F. Gansler, state's attorney for Montgomery County, said he would still want to prosecute Muhammad and Malvo for the six killings there. "It is valuable, as insurance, to prosecute them under a different set of laws or a different set of facts, in the event for whatever reason Virginia courts overturn the convictions," Gansley said.
Prosecutors in Alabama and Louisiana also said they are still interested in trying the pair in earlier killings there.
Staff writers Ian Shapira and Carol Morello contributed to this report.