Attorney General John D. Ashcroft could decide as early as this week who will launch the first prosecution of John Allen Muhammad and John Lee Malvo, the suspects in a cross-country shooting rampage that involved 13 killings and five woundings, Justice officials said yesterday.
Federal and state prosecutors in Maryland, Virginia, Louisiana and Alabama have filed charges against Muhammad, 41, and Malvo, 17, after their Oct. 24 arrest at a rest stop near Frederick. After the two were interrogated in Montgomery County, they were taken into federal custody, leaving Ashcroft to decide which court and which prosecutor will try the case first.
Both suspects are due in federal court this week. Malvo, because he is younger than 18, is scheduled for a closed hearing today in an undisclosed location, and Muhammad is scheduled for a hearing in Greenbelt tomorrow. Both are appearing for detention hearings, in which prosecutors must prove that a defendant might flee the area or poses a danger to the community.
Malvo's hearing will determine whether he should be detained on federal juvenile charges related to the sniper attacks. Because he is a juvenile, the existence of any sniper-related federal charges remains officially unknown.
Ashcroft has said he believes the death penalty is appropriate in the sniper killings, and the availability of capital punishment remains a key component of deciding where to try the case first. Justice Department officials have said they have all but ruled out bringing the first case in Maryland because of limitations in the capital murder law there and the state's historical reluctance to impose the death penalty.
If the case remains in federal court, Malvo would be ineligible for the death penalty because of his age. Furthermore, in federal court, information about Malvo, or any charges he faces, is sealed from the public. But if Ashcroft decides to transfer the case to a Virginia state court, Malvo could be prosecuted as an adult and receive a death sentence if convicted.
"That's the only advantage to trying the case in Virginia," a Justice Department source said.
Prosecutors in Prince William and Spotsylvania counties have obtained first-degree murder indictments against Muhammad and Malvo. Fairfax County, which also had a fatal sniper shooting, could seek an indictment as early as today, sources close to the investigation said.
In addition to capital charges involving conspiracy, extortion and weapons filed by federal prosecutors in Greenbelt, Montgomery County prosecutor Douglas F. Gansler has obtained six murder indictments against Muhammad and Malvo. There are advantages to keeping the case in federal court, Justice officials said yesterday. All of the shootings could be brought to trial at the same time. Witnesses and family members would not to have sit through a succession of trials. Evidentiary and other procedural rules are more favorable to prosecutors in federal court. And to have the conviction qualify for the death penalty, federal prosecutors would have to prove only that Muhammad participated in the crime, not that he pulled the trigger.
But no decision has been made, Justice officials emphasized yesterday. A conference call between the Justice Department and prosecutors in Baton Rouge, La., Montgomery, Ala., Tacoma, Wash. -- where Muhammad and Malvo are uncharged suspects in another killing -- and the Washington area is scheduled for early this week to discuss evidence and legal options.
"We have no idea where we are going first," said a Justice official yesterday, adding that "evidence is still coming in."
"It's foolish for anyone to think any decision has been made or that we're leaning one way or the other," he said.
Several prosecutors may hold preliminary hearings or even file indictments against Muhammad this week, but that still will not be a definitive signal as to which one will be tapped to try the case first. "That decision has not been made, not even remotely," said the official, adding that the decision may not be made this week.
Staff writer Susan Schmidt contributed to this report.