Fairfax Commonweath's Attorney Robert F. Horan Jr.'s Closing Statements

Wednesday, December 17, 2003; 12:00 AM

The following is the transcript of the Dec. 16 closing statement by Fairfax Commonweath's Attorney Robert F. Horan Jr. in the capital murder trial of Lee Boyd Malvo. This is from a preliminary transcript of court proceedings compiled by court reporters Alvis & Cheesebrew, Inc.

MR. HORAN: Members of the jury, I want to thank you for your kind attention to this, what turned out to be a very long case. I've been doing this for 37 years, and I've never had one even half this time, and you folks have been kind enough to pay attention to all of it, and I know I speak for counsel in telling you that we do appreciate it. I hope I didn't do anything that made it longer.

We're now at a juncture in the case that is in your hands from here on out. You own the proceedings, and that's because the law says that you are the trier of the fact. You determine the facts. It's not my recollection that prevails. It's not counsel's recollection that prevails. As a matter of fact, it's not even Her Honor's recollection that prevails. It's you. The 12 of you decide what the facts are, and that is your province and your province alone. With that in mind, and recognizing it's going to be your judgment, I would like to review some of the facts with you, in particular those facts that press most on what we perceived to be the major issues in front of you. As with all criminal cases -- this one is no different -- there are some things not seriously in dispute. Some facts are just there. There's no controversy. They are the facts.

No. 1 is that the killing of Linda Franklin no matter how you carve it up, the killing of Linda Franklin was a willful, deliberate, premeditated killing. You don't have to worry yourself about whether or not it was willful, deliberate, and premeditated because by all of the evidence in this case, both Commonwealth and defense, that's what it was.

Fact no. 2, the killing of Dean Meyers was a willful, deliberate, premeditated killing. No matter how you look at these facts, that's what it was. You can't make either the killing of Linda Franklin or the killing of Dean Meyers into something less like manslaughter or second-degree murder. Both killings are willful, deliberate, and premeditated. The primary issue before you, members of the jury, is going to be the issue no. 1 with regard to the killing of Linda Franklin, who was the trigger man? Who fired the fatal shot? And with regard to the terrorism charge in the indictment, it doesn't make any difference who fired the fatal shot. If they're both involved in that killing, Muhammad and Malvo, they're both guilty of capital murder regardless of who did the shooting. Because under the law in Virginia, the terrorism count, the terrorism crime is considered so serious and so heavy that anybody involved in that kind of killing proven by the Commonwealth is guilty of capital murder.

The second issue, major issue in front of you is the issue of whether or not this defendant knew it was wrong when Linda Franklin was killed. Did he know the nature, the character, and the consequences of his acts on the day that Linda Franklin was killed, and if he did, he is in law and in fact sane and responsible for his crime. These killings which I want to talk about now in some detail, these killings on the evidence in front of you were done for money. They killed all of these people essentially for money. That's why they did it. That's why they started Oct. 3 in the year 2002. They wanted to have enough bodies out there so the government would pay attention to them and pay the money, and their belief, as wild notion as it is, their belief was if you killed enough, the government would come around. That was their belief. People can say that doesn't make sense, but certainly, the government was put under a tremendous amount of pressure to do something, and the thing they asked the government to do was give them the money. Either give us the money or [as] Malvo said in the note at the Ponderosa, give us the money or keep the body bags coming. That was their plan. That's what they hoped to achieve by killing all of these innocent people at random.

You can talk about killing as much as you want, but it's hard to envision the notion of shooting people you don't even know in order to achieve the goal of intimidating the government. Shooting at random. I guess we all can understand somebody in anger deciding to go out and get even with somebody and wind up killing them. We can understand that. We can understand somebody whose got some beef going with somebody else and decides to kill them. We can understand that, but the notion of randomly killing innocent people on the streets is a notion that is truly foreign to all of us. It's hard to envision how human beings could be that foul and that mean to just shoot people on the streets, people with no connection, none whatsoever to the killing. Of course, that's what they did with Linda Franklin.

On Oct. 14, 2002, Linda Franklin goes shopping with her husband at the Home Depot store in Fairfax County, Virginia, and they proceed to shop. They come out, and they're trying to load the things they bought in the automobile, and if you recall, Mr. Franklin testifying they couldn't get the items in the way they wanted. So he went around to the side of the car and tried to get them in through the window. He left his wife at the back of the car, and she eventually became the target. She became the target because in Malvo's words, he didn't want to be sloppy. He didn't want to take a chance of shooting a moving target like the husband.

She's in back of the car. It was an easy target. His words: You don't want to be sloppy.

Members of the jury, it's going to be up to you to decide whether he is the shooter. We suggest to you that evidence is overwhelming that he's the shooter.

Now, I know eventually, after months with the mental health crowd he changes his story. These people got caught on Oct. 24, 2002. You heard Captain Stracke from the correctional unit in Baltimore. You heard him testify. Stracke said a couple of different things about the killings in this case, but two that stick out -- No. 1: Stracke says this defendant told him Muhammad shot the two women in Montgomery, Ala., killing one of them. He said all he did was collect the money, that Muhammad killed the one woman and shot the other woman in the face. That's what he told Stracke, but he also told Stracke that he killed a woman in the Home Depot, and Stracke testified that he talked to him about shooting through the pillars, and that [it] was a good shot.

Members of the jury, you're going to take with you pictures like this, exhibits in the case, and they will go with you to the jury room, and in there you can see what he was telling Stracke is absolutely true. In order to shoot this woman in the Home Depot, you had to fire through pillars. Malvo said he did. He told Stracke that as early as Oct. 26, 2002.

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