Lawyers for convicted teenage sniper Lee Boyd Malvo missed a deadline last month to appeal Malvo's two capital murder convictions, and the Virginia Court of Appeals has dismissed the case.
The ruling does not mean that the case is over, however. Malvo's attorneys may file a habeas corpus appeal to the state Supreme Court, saying that their clerical failings should not prejudice the rights of a convicted defendant. Experts said that the state attorney general rarely opposes such an appeal and that the Supreme Court usually reinstates the case.
Michael S. Arif, one of Malvo's court-appointed attorneys, said the deadline was missed because an associate in his office wrote down the wrong date. "It's just a [calendar] error," Arif said. "We all do it. It's not Lee's fault."
Malvo, 19, was sentenced in March to two life terms in prison without parole for his role in the Washington area sniper shootings of October 2002, when he was 17. He was tried by Fairfax County prosecutors on charges of committing terrorism and multiple murders and was found guilty by a jury in Chesapeake after the trial was moved out of Fairfax.
Malvo's co-defendant, John Allen Muhammad, was tried by Prince William County prosecutors on the same charges. His trial also was moved out of Northern Virginia, and a Virginia Beach jury sentenced him to death. His attorneys have filed two briefs in the case and are awaiting a date for oral argument this fall.
In case that appeal is successful, Fairfax prosecutors have launched a second prosecution of Muhammad, with trial set for January. Muhammad's attorneys have argued that the second case should be dismissed because it was not begun until June of this year, even though Muhammad was indicted in November 2002 and has been in Virginia's custody since then. Virginia law requires that a jailed defendant be tried within five months. A hearing on the issue is scheduled for Wednesday.
Defense lawyers for Malvo and Muhammad challenged prosecutors' use of a new anti-terrorism law in the sniper cases, saying it was unconstitutionally vague and inappropriate for a murder case. The trial judges in both cases rejected that argument. Muhammad's attorneys have taken the issue to the Virginia Supreme Court, where death penalty appeals are automatically heard.
In the late filing, Malvo's court-appointed attorneys presented the issue to the Court of Appeals, an intermediate court that hears nearly all criminal appeals other than death penalty cases.
The appeal was due July 21. Malvo's attorneys, Craig S. Cooley of Richmond and Arif, of Springfield, asked for an extension and were granted one until Aug. 20.
In an order entered Wednesday, the appeals court noted that it received Malvo's appeal Sept. 3 and that it was postmarked Aug. 31 -- 11 days after the deadline.
Lawyers familiar with the legal process said that Malvo's attorneys now must file a habeas corpus petition with the Supreme Court, claiming that their ineffective assistance to Malvo caused the missed deadline. The Supreme Court can then reopen the case and send it back to the circuit court if new lawyers need to be appointed. Appointment of new lawyers is unlikely in a case of such complexity, experts said.