A Fairfax County juvenile court judge yesterday denied a request by teenage sniper suspect John Lee Malvo to bar the public and press from an evidentiary hearing next week, ruling that media coverage of the proceeding will not make it more difficult to find an impartial jury.
Judge Charles J. Maxfield noted that the courts were able to seat juries in other "celebrated cases," including the trials of such Watergate figures as H.R. Haldeman and John Ehrlichman and the Communist trials of the 1950s.
"The commonwealth is going to have the same problem in selecting a jury even if the information from this hearing comes out," Maxfield said. "Those citizens who want to be informed know a lot already, whether it's accurate or not. These folks who don't watch the evening news are potential jurors, and the commonwealth is going to have to find them."
Malvo, 17, who is charged with capital murder, has appeared in Fairfax County Juvenile and Domestic Relations District Court several times since his Oct. 24 arrest, and each hearing has been open to the public. His attorneys sought to close Tuesday's preliminary hearing because, they said, it will provide the most comprehensive picture so far of evidence linking Malvo to the October sniper shootings in the Washington area.
Malvo and John Allen Muhammad, 42, are charged in 13 shootings -- 10 of them fatal -- in the sniper attacks and are suspected in eight other shootings across the country. Muhammad is facing capital murder charges in Prince William County.
Tuesday, prosecutors will try to convince a judge that there is enough evidence to send Malvo's case to adult court, where he could face the death penalty. Malvo, who was not brought to the courtroom during yesterday's hearing, is charged in connection with the Oct. 14 fatal shooting of FBI analyst Linda Franklin, 47, outside a Home Depot store in Seven Corners.
Under Virginia law, the juvenile judge is required to either certify the case to the Circuit Court or dismiss the charges. A murder case with a defendant 14 or older cannot be tried in juvenile court. But even if prosecutors lose at the preliminary hearing, the law allows them to ask a grand jury to charge Malvo as an adult because of the serious nature of the crime.
Malvo's court-appointed guardian, Todd G. Petit, argued yesterday that the jury pool already has been biased by media coverage and that the release of evidence in the case would further taint potential jurors. He showed the judge a glossy tabloid magazine devoted to the shootings and a four-inch-thick binder filled with two weeks' worth of newspaper articles about the case.
"Why don't we stop the bleeding while we can?" Petit asked. "Why don't we stop the information . . . until the trial?"
In Virginia, serious juvenile cases involving defendants older than 14 are open to the public, but a judge has the discretion to bar access if the judge deems it would result in "substantial prejudice" to the defendant. Such a ruling would have barred not only the media but other members of the public, including Franklin's husband, Ted, who has attended each hearing.
Malvo's criminal defense team joined in Petit's motion. And Muhammad's attorney, Peter D. Greenspun, wrote a letter to the court noting that he supported closing Malvo's hearing.
But Fairfax County Commonwealth's Attorney Robert F. Horan Jr. said Virginia case law is clear that the public has a right to know what goes on in Malvo's court case. He said the defense showed no compelling reason why the judge should make an exception.
"The Virginia Supreme Court resoundingly said you've got to open criminal proceedings to the public," Horan said.
Several media organizations, including The Washington Post, Baltimore Sun and the Associated Press, also opposed the motion.