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Fairfax Said No to Malvo Plea Deal

Teen Would Have Testified Against Muhammad in Sniper Trial

By Tom Jackman
Washington Post Staff Writer
Saturday, March 5, 2005; Page B01

Plea negotiations that could have led to Lee Boyd Malvo's testimony against fellow sniper John Allen Muhammad in Prince William County shut down because the chief prosecutor in Fairfax County would not agree to the deal, lawyers involved in the case said yesterday.

Craig S. Cooley, one of Malvo's lead attorneys, said the proposed plea deal in October 2003 could move forward only with a "universal settlement," meaning that prosecutors in all three Virginia jurisdictions where Malvo faced the death penalty would have had to agree to life sentences instead of execution.

Lee Malvo's plea deal required a "universal settlement," and Fairfax would not agree, Malvo's attorney said. (Davis Turner -- AP)

After hearing what Malvo had to say about the sniper shootings, Prince William Commonwealth's Attorney Paul B. Ebert called his counterparts in Fairfax and Spotsylvania counties. Spotsylvania Commonwealth's Attorney William F. Neely agreed. Fairfax's Robert F. Horan Jr. said no.

"We would not agree to any universal deal," Horan said yesterday. "We believe that Malvo shot most of the people who were shot in Northern Virginia, if not all of them. That being so, we were not willing to be a party to any agreement."

The deal was off, and Malvo and Muhammad went to trial. Ebert secured a conviction against Muhammad, and Horan won one against Malvo. A jury sentenced Muhammad to death, and a separate jury spared Malvo, sentencing him to life. Since then, Malvo has pleaded guilty in Spotsylvania.

At the time of the discussions, Malvo and Muhammad faced a series of capital murder charges in several jurisdictions in the October 2002 sniper shootings that killed 10 people in the Washington area.

The plea negotiations were first revealed Tuesday by Malvo's other lead attorney, Michael S. Arif, who said that a meeting took place in Ebert's office, during which Malvo detailed his relationship with Muhammad and how it evolved into the sniper slayings.

Ebert said that the meeting was a standard pretrial maneuver by defense lawyers and that a confidentiality agreement was signed by both sides in case no deal was reached. He said he was stunned that Arif spoke publicly about the meeting this week. "In this business, you can't talk about settlement discussions of any type of litigation," Ebert said. Ebert discussed the meeting only with permission from Cooley, leading Horan to confirm his position as well.

Arif said he did not recall agreeing to confidentiality.

"I did receive their proposal," Ebert said. "I met with counsel and their client. They left with, I thought, the understanding that we would try to reach an agreement. We were not able to do so."

Cooley said, "We approached Mr. Ebert because we knew he had the weakest case" because of a lack of direct physical evidence tying Muhammad to the shootings, "and he had some leverage" with Horan and Neely.

The defense made Malvo available for several hours of questioning, forming the basis of what lawyers call a proffer, "in a very protected environment," Cooley said. "It was mutually agreed upon that for the protection of the process, and our client, there would not be public discussion of that."

Such meetings are common in criminal cases -- as is the failure to reach a deal. Prosecutors are prohibited from using any information from such a proffer in subsequent trials, and Cooley said Ebert did not violate the agreement.

Ebert acknowledged that having Malvo's testimony would have helped his case against Muhammad, which he won anyway. But, Ebert added, "Frankly, I had concerns about some of Malvo's credibility."

Neely said Ebert called him with the defense proposal. "That's when I first contacted the victims and heard no objections from the victims here. I was on board," he said. Neely eventually accepted a plea from Malvo anyway, with the understanding that Malvo would drop the appeal of his Fairfax case, meaning that Malvo will spend the rest of his life in prison.

Malvo and Muhammad both still face six murder charges in Maryland and one in the District. They also face capital murder charges in Alabama and Louisiana in killings the month before the Washington area sniper shootings.

The Supreme Court this week barred the execution of juveniles, so Malvo, who was 17 at the time of the shootings, will never face execution. Muhammad is appealing his Prince William conviction.

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