The arguments made by Fairfax County's top prosecutor during the trial of sniper Lee Boyd Malvo were just that -- arguments, not facts or evidence -- and cannot be used to prevent Fairfax from trying Malvo's co-conspirator, prosecutors argued yesterday.
Attorneys for John Allen Muhammad last week asked the judge in Muhammad's second capital murder case to recuse Commonwealth's Attorney Robert F. Horan Jr. and all other Fairfax prosecutors from the case because Moran argued that Malvo fired the shot that killed FBI analyst Linda Franklin during the October 2002 sniper shootings. Horan is now prosecuting Muhammad for the same crime. Muhammad's attorneys theorized that they could summon Horan as a witness to repeat his argument about Malvo and that Horan could not be both witness and prosecutor.
The motion by Muhammad's defense team was one of eight filed last week in the first set of pretrial requests in the case. A hearing on the motions is scheduled for this morning before Fairfax Circuit Court Judge Jonathan C. Thacher.
Muhammad, 43, was convicted by Prince William County prosecutors last fall for the killing of Dean H. Meyers and was sentenced to death. Malvo, 19, was convicted by Fairfax prosecutors for Franklin's killing and was sentenced to life in prison without parole.
Fairfax Deputy Commonwealth's Attorney Raymond F. Morrogh wrote that prosecutors have "always said that Malvo and Muhammad acted together as members of a sniper team and with the intent to murder innocent men, women and children. The Commonwealth's position in this respect has never changed. The Commonwealth continues to maintain that Malvo and Muhammad acted jointly to accomplish their goal of murdering Linda Franklin."
Horan did allege at Malvo's trial that the teenager pulled the trigger in Franklin's shooting, but Morrogh argued yesterday that Muhammad remains equally responsible, "a principal in the first degree," and thus is eligible for a second death penalty. Prince William prosecutors made the same argument at Muhammad's first trial, and the judge in that case agreed, submitting capital murder charges to the jury despite the defense's contention that only a triggerman can be charged with capital murder. That issue is now a keystone of Muhammad's appeal to the Virginia Supreme Court.
"Mr. Horan's argument is not itself evidence," Morrogh wrote. "Since he cannot offer testimony on the shooting of Linda Franklin, there can be no rationale for recusing the Commonwealth's Attorney from the case."
Malvo initially said he committed many of the sniper shootings, then recanted. Muhammad has not spoken of them. There were no witnesses to the 13 Washington area shootings, which took 10 lives during a three-week period.
Prosecutors also rejected defense arguments that a pending terrorism charge against Muhammad should be dismissed because all residents of Fairfax were victims of the shooting and thus are ineligible to serve as jurors. Morrogh wrote that if such logic were used in the Sept. 11, 2001, terror attacks, the perpetrators would be immune from prosecution because "all Americans were 'victims' of that crime."
The prosecution also said the case does not need to be moved from Northern Virginia, as Malvo's and Muhammad's first trials were. Morrogh said that heavy publicity does not automatically require a change of venue, that the costs of such a move are high and that the growing county will have many potential jurors who were not in Fairfax during the shootings.