The trial of sniper suspect Lee Boyd Malvo will not be broadcast publicly or photographed, a Fairfax County judge ruled yesterday, but she will allow a closed-circuit video feed to be shown at police headquarters next to the courthouse.
The ruling by Circuit Court Judge Jane Marum Roush was one of dozens she made on a series of pretrial motions filed by Malvo's attorneys and the news media. Among their motions, Malvo's attorneys asked Roush to declare the Virginia death penalty statute unconstitutional, to pay for five investigators for the defense and to allow individual questioning of potential jurors.
Roush declined to invalidate capital punishment, but she did authorize three defense investigators and said she would allow questioning of potential jurors in groups of three.
The major broadcast and cable television networks had asked Roush to allow them to broadcast the trial, either wholly or in part. And various print media, including The Washington Post, asked for permission for still cameras, arguing that the public had a right to watch an open trial held in a public courthouse.
But Roush, Commonwealth's Attorney Robert F. Horan Jr. and the defense team all worried about the effect televising the trial would have on potential jurors in other trials the sniper suspects may face. Malvo, 18, and his co-defendant, John Allen Muhammad, 42, are suspected in 13 shootings -- 10 of them fatal -- in the Washington area sniper slayings and in six others across the country.
"I am concerned with the possible prejudice to Mr. Malvo of photography -- whether still or television," the judge said in rejecting media cameras. But she granted Fairfax County's request to set up a closed-circuit feed in the adjacent Massey Building, for victims, reporters, investigators and members of the public who cannot fit into Courtroom 5E, where Malvo's trial is scheduled to start Nov. 10.
Malvo faces capital murder charges in the Oct. 14 shooting death of FBI analyst Linda Franklin, 47, outside the Home Depot store in the Seven Corners area of Fairfax County. Muhammad faces similar charges in Prince William County for the Oct. 9 slaying of Dean Harold Meyers, 53, outside a Manassas area gas station.
Mark Petrovich, one of Malvo's attorneys, questioned how the judge would prevent investigators who might testify at a future trial from watching the closed-circuit feed. Roush said sheriff's deputies would monitor the spectators and screen out future witnesses.
Michael S. Arif, another of Malvo's attorneys, argued for individual questioning of potential jurors during the voir dire phase of the trial. He said that allowing jury panelists to listen to each other's answers while being asked about their knowledge of the case or their views on the death penalty could cause them to influence each other. The panelists are likely to be more candid about these issues in one-on-one interviews, Arif said.
A panel of 200 potential jurors is to be called. Roush said she would ask them collectively such general questions as whether they know any of the participants and whether they would be available for a trial lasting anywhere from three to 12 weeks. She said she would then call them in groups of three to be asked about capital punishment and pretrial publicity and interview them individually if necessary.
Both Roush and Horan cited the Watergate trials of the mid-1970s as evidence that finding an impartial jury would not be difficult. Although the pretrial publicity regarding Watergate was massive, "they had a jury that didn't know anything about it," Roush said.
Malvo's attorneys had sought a team of five investigators to check out criminal allegations against their client and to do a personal history check on him. Arif said the defense team would have to prepare not only for the shooting of Franklin at trial, but also for any other shootings that the prosecution might use against Malvo. Roush granted them three investigators at taxpayer expense.
The judge also authorized the hiring of a clinical psychologist from the University of Virginia, Dewey Cornell, to help the defense team assess Malvo. The defense said it would request other experts for ballistics and forensics later.
Ruling on a list of 58 requests for different types of evidence, Roush rejected the defense call for a witness list, saying it was not required under state law. In response to numerous defense inquiries for evidence from jailhouse informants, Deputy Commonwealth's Attorney Raymond F. Morrogh said there were no such informants at present, but if any came forward and were headed for the witness stand, the prosecutors would provide their statements to the defense.
Roush also ordered the prosecutors to provide the defense team with copies of any statements Malvo has made to law enforcement. Horan said he had done that.
Roush granted the defense team access to some evidence and required prosecutors to disclose by June 1 which other shootings it plans to use in the penalty phase of the case. She rejected defense requests for more peremptory juror challenges and for limited uniformed police presence in the courtroom.
Arif then argued that Virginia's capital punishment law is "unconstitutionally vague and gives no meaningful guidance" to jurors trying to decide between life and death. In the sentencing phase, prosecutors may present evidence of other crimes that haven't been proven in court, and Arif said, "somehow, by a magic waving of a wand, we've reduced the standard of proof to probability."
Horan replied that the same arguments had been rejected repeatedly by the Virginia Supreme Court, and Roush agreed.
The defense attorneys have not filed a motion to suppress Malvo's statements to Fairfax police, which prosecutors said last week was a full confession. They said they would do so in the next two months.