A Fairfax County judge yesterday set a Nov. 10 trial date for Lee Boyd Malvo, charged with capital murder related to last fall's sniper shootings, even as his attorneys insisted repeatedly that they could not be ready by then.
Circuit Court Judge Jane Marum Roush also told Malvo's court-appointed attorneys that she planned to appoint another person to their team -- Richmond defense lawyer Craig S. Cooley. And Roush said she would relieve Todd G. Petit, Malvo's court-appointed guardian, of his responsibilities Feb. 18, Malvo's 18th birthday.
Michael S. Arif, Malvo's lead attorney, predicted that Malvo's trial would last eight to 12 weeks, and he proposed a trial date in February 2004. He noted that in addition to the massive amounts of investigative information he expects to receive in the Fairfax case, he will have to defend Malvo against evidence from other sniper shootings during the sentencing phase if Malvo is convicted.
Fairfax Commonwealth's Attorney Robert F. Horan Jr. estimated that the trial would take no more than two to three weeks and urged the judge to set a date between late June and mid-September. "These things, if you allow them to just lay around, they get further and further away from you," Horan said.
Malvo, formerly known as John Lee Malvo, was arrested with John Allen Muhammad, 42, on Oct. 24. He is charged in Fairfax in the Oct. 14 shooting of FBI analyst Linda Franklin, 47, outside a Home Depot store in Seven Corners. Muhammad is being prosecuted in Prince William County on identical charges in the Oct. 9 shooting of Dean Harold Meyers, 53, outside a Manassas area gas station. His trial is set for Oct. 14. The pair are charged in other jurisdictions in the Washington area sniper shootings that killed 10 and wounded three.
Arif told the judge that if the two trials overlap, "evidence is going to be all over the place." Horan said that would not be a problem.
Roush chose a date between the times requested by each side. "I want us to work diligently toward that date," she said. "I'm not saying never as far as continuances, but I want that as a firm trial date."
The judge also gave the defense until Feb. 14 to file pretrial motions, and prosecutors until Feb. 24 to respond. Oral arguments on the motions were set for March 3.
Arif said he would seek to suppress Malvo's statement to Fairfax police. A Fairfax homicide detective, June Boyle, interviewed Malvo for six hours in November, and sources close to the case have said that Malvo told her that he pulled the trigger in at least three shootings, including Franklin's.
Malvo's attorneys have said that the questioning of a juvenile without a lawyer present should be reviewed by a judge. But Arif said his suppression motion would come later and not be included in the Feb. 14 package.
Arif did not say what other motions he might file. But in a 2001 capital case, Arif argued against the constitutionality of the death penalty and made requests for court-appointed experts to examine DNA and blood evidence, crime scene forensics and the defendant's mental health. Arif also may challenge the new anti-terror law, under which Malvo is charged, which prohibits "the willful, deliberate and premeditated killing of any person by another in the commission of or attempted commission of an act of terrorism."
At Malvo's preliminary hearing, Horan introduced a note that he said was written by the snipers that demanded $10 million for the killings to stop. Horan said that fit the definition of terrorism under the new statute, but Arif argued that the sniper shootings weren't terrorism, but blackmail. A Fairfax juvenile court judge agreed with Horan and certified the terrorism charge and others for trial in Circuit Court.
Arif also could seek to have the trial moved from Fairfax. He said yesterday that he had not decided whether to ask for a change of venue, although he noted that if one is granted, the defense will have no say in where the trial is held. Arif said he had heard rumors that the trial could be moved to southwest Virginia, "but I don't know that that is any more beneficial [to the defense] than Fairfax."
One problem for both sides will be wading through what Horan said were 50,000 to 70,000 tips and tidbits called in to authorities during the three-week sniper rampage in October. Horan said he and the prosecution task force would try to provide any of the tips that may be helpful to Malvo's defense by mid-March. He is not required to provide the information that led to Malvo's arrest, although he said he gave the defense team a large amount of such documentation last month.
After the hearing, Arif said the November trial date is "not realistic. We're not going to be prepared then, and I told the judge that, because of the scope and breadth of what Mr. Malvo is charged with." Arif said witnesses must be found in Jamaica and Antigua and possibly compelled to come to this country.
Neither Arif nor his two co-counsels, Thomas Walsh and Mark Petrovich, has met Cooley. The defense team also will include volunteers from the capital defense project at the Washington and Lee University law school.
Cooley was given the state bar's Harry L. Carrico Professionalism Award last year for a "unique contribution to the improvement of the criminal justice system in Virginia." In 1995, the Richmond Bar Association recognized him for his involvement with neighborhood children in crisis. He received his undergraduate, master's and law degrees from the University of Richmond.
Cooley has extensive experience in death penalty cases, most recently defending a man accused of fatally shooting a bank guard during a robbery in 1999. The man was sentenced to death.