Fairfax Senator's Unlikely Stand

By Fredrick Kunkle
Washington Post Staff Writer
Wednesday, February 25, 2009

RICHMOND, Feb. 24 -- The General Assembly once again passed a bill that would eliminate the triggerman rule, making criminals who participate in a murder eligible for the death penalty even if they didn't actually commit the killing.

And once again the governor has pledged to veto it.

But the vote on Tuesday has cast a spotlight on an unlikely opponent of expanding the use of the death penalty: Sen. Ken Cuccinelli II, a conservative law-and-order Republican from Fairfax County who hopes to become attorney general.

Cuccinelli is a supporter of capital punishment and has backed other measures to expand its use, including a bill this year to broaden the definition of law enforcement officers whose killing could be punished by the death penalty. Under that bill, sponsored by Del. Brenda L. Pogge (R-York), the state could seek the death penalty for any person who killed an auxiliary police officer, auxiliary sheriff's deputy, a fire marshal or an assistant fire marshal with police powers.

But Cuccinelli was the only Republican senator to vote against eliminating the triggerman rule.

"This would be the biggest expansion since we began utilizing [capital punishment] since 1976," Cuccinelli said.

Cuccinelli, who is a patent attorney, said juries could be too easily swayed by the heat of a capital prosecution, overlooking nuances of guilt to punish someone whose intent was perhaps ambiguous. "More than anything else, it will catch people in a robbery gone bad," Cuccinelli said.

Sen. Mark D. Obenshain (R-Harrisonburg) disagreed, saying the bill makes clear that prosecutors would have to prove that the accomplice had the same intent to kill as the person who pulled the trigger.

Cuccinelli has been criticized by John Brownlee, one of three GOP candidates for attorney general. On his campaign Web site, Brownlee said the triggerman rule complicated the state's efforts to seek the death penalty against Washington area sniper John Allen Muhammad. Whether Muhammad or a juvenile accomplice fired the shots that killed 10 people in 2002 was an issue during his trial.

"Despite this overwhelming support for its repeal, Cuccinelli voted against the bill," the Web site says, referring to several law enforcement groups that support repeal of the triggerman rule.

Meanwhile, Maryland lawmakers are taking up a measure sponsored by Gov. Martin O'Malley to repeal the death penalty. Senate President Thomas V. Mike Miller Jr. (D-Calvert) is pushing for an up-or-down vote on the bill by the Judicial Proceedings Committee, which has derailed similar legislation in each of the past two years.

Under current law in Virginia, the death penalty can only be applied to a person who killed willfully and deliberately and also acted as "a principal in the first degree" -- a legal concept that has come to mean the person who pulled the trigger or otherwise committed the fatal act. During Muhammad's first trial, a judge ruled Muhammad eligible for the death penalty even though there was no proof that he fired the fatal shots.

Other exceptions to the rule include murder for hire and killings done as part of a continuing criminal enterprise or as an act of terror.

"The good thing about it is it will allow prosecutors to seek the death penalty against accomplices in the appropriate circumstances when the accomplice shares the exact same intent as the person who pulls the trigger or plunges the knife," said Kimberley Slayton White, Halifax County commonwealth's attorney, who chairs the Virginia Bar Association's criminal law section. "They're both as guilty."

But James Hingeley, a public defender for Charlottesville and Albemarle County, said Virginia was removing a key evidentiary hurdle."

"That's an open door to inferring intent," Hingeley said. "Why go that next step and say the accomplice should be punished by the death penalty, especially when we have enough death penalty prosecutions?"

The bill passed the Senate 24 to 13. Gordon Hickey, a spokesman for Kaine, said the governor would veto the triggerman bill. But Kaine will consider the measures expanding the death penalty to auxiliary police officers and others.

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