John Lee Malvo can be tried in adult court, where he would be eligible for the death penalty, a Fairfax County juvenile judge ruled yesterday, after hearing 24 witnesses detail forensic and other evidence linking the 17-year-old to October's Washington area sniper attacks.
Judge Charles J. Maxfield noted that there were no witnesses to place Malvo at any of the shootings, but he said that "the circumstantial evidence is quite strong that he was in each place."
In reaching his decision, Maxfield pointed to evidence that Malvo's fingerprints were found on the Bushmaster .223-caliber rifle used in the sniper killings. He also noted an Oct. 21 call that prosecutors said Malvo made to the FBI in an effort to extort $10 million. "Dearest police. Call me God. . . . Your children are not safe," the caller said.
Maxfield's ruling means that Fairfax prosecutors can seek to indict Malvo on capital murder charges in Circuit Court in the Oct. 14 slaying of FBI analyst Linda Franklin, 47, outside a Seven Corners Home Depot store. A grand jury will hear evidence Tuesday.
Malvo's defense team expressed disappointment at Maxfield's ruling, and his attorneys cautioned that many facts have not yet been disclosed. Police have "circumstantial evidence, which is substantial, but it's not the be-all and end-all of this case," said Michael S. Arif, Malvo's lead attorney.
"There is no one placing Mr. Malvo at the site of the Linda Franklin shooting," Arif said earlier in court. ". . . There's no proof. It's just not there."
Fairfax County Commonwealth's Attorney Robert F. Horan Jr. said outside court that he is hopeful Malvo can go to trial this summer. "A whole lot of physical evidence places him at the scene," Horan said.
The ruling came after 12 hours of detailed testimony over two days about evidence gathered at the sites of four sniper attacks. Horan chose the crime scenes hoping to provide Maxfield with proof that the case satisfies the two death penalty provisions under which Malvo is charged.
Yesterday's testimony focused in part on one of those provisions -- Virginia's anti-terrorism statute. Prosecutors argued that the slayings were carried out to terrorize the community and extort money from local governments, necessary elements for a capital conviction under that provision.
Horan argued that Malvo and John Allen Muhammad, 42, were after money when they shot 13 people -- 10 fatally -- in the District, Maryland and Virginia in October. The pair also are suspected in nine other shooting attacks across the country. Muhammad is facing capital murder charges in Prince William County in the slaying of Dean Harold Meyers, 53, of Gaithersburg at a gas station.
"In essence, they said if you want us to stop killing people, give us the money," Horan said.
Referring to the Oct. 21 phone call, Horan said: "Who said, 'Call me God. Do not release to the press. Five red stars. You have our terms. They're nonnegotiable'? This defendant."
Arif argued that the terrorism law is intended to address an "attack upon the United States," not an effort to extort money.
But Horan said he can convince a jury that the sniper shootings were an act of terrorism. "If that doesn't fit within the terrorism statute, there may never be another case that does," Horan said.
Malvo, who appeared attentive but unemotional as he sat at the defense table, closely watched the witnesses but did not speak. He seemed to be particularly interested when a fingerprint examiner from the federal Bureau of Alcohol, Tobacco and Firearms pulled the black Bushmaster from a cardboard box to show defense attorneys where he had found Malvo's fingerprint.
Yesterday's most dramatic testimony came from FBI Special Agent Charles B. Pierce, who was part of the team that arrested Malvo and Muhammad at an Interstate 70 rest stop near Frederick. His hostage rescue team had been waiting for a call from the sniper task force and finally received it about 1 a.m. Oct. 24, Pierce testified. The blue Chevrolet Caprice owned by Muhammad had been spotted.
Pierce said police sharpshooters were positioned at the edge of the woods surrounding the rest area. Agents and officers moved within 20 to 30 meters, Pierce said, then rushed the car at 3:28 a.m. and smashed out windows on both sides.
Malvo was sleeping, lying across the front seat, Pierce said, and Muhammad also was asleep, slumped on the passenger side in the back. Pierce stayed with Malvo for the next half-hour and asked him his name several times. "He was unresponsive," Pierce said. "Defiant silence."
David McGill, a forensic specialist with the Montgomery County police, testified that he searched the Caprice and discovered that the back of the rear seat was hinged at the top. Officers lifted the seat to find that the wall separating the seat from the trunk had been removed so that someone could crawl into the trunk, McGill testified. They also found the Bushmaster rifle.
Outside the car, police found a quarter, gray-and-black mittens, clothes, and a green military duffel bag that contained vitamins and a scope for the rifle, according to testimony. They took several items of clothing from inside the Caprice.
In addition to the anti-terrorism law, enacted in response to the September 2001 attacks, Malvo and Muhammad are charged under a commonly used statute that makes it a capital offense to kill more than once in three years.
During the hearing in Juvenile and Domestic Relations Court, Horan offered 42 pieces of evidence from the four crimes -- Franklin's slaying, Meyers's shooting Oct. 9, the Oct. 22 slaying of bus driver Conrad Johnson, 35, in Aspen Hill, and the Oct. 19 wounding of a man in Ashland, Va.
Several of yesterday's witnesses were called to close the loop on testimony that was offered Tuesday, when police officers established that shootings had taken place in Fairfax, Prince William and Ashland. ATF examiner Walter Dandridge testified that bullet fragments from those Virginia shootings, as well as Johnson's slaying, could have been fired only from the Bushmaster rifle found in the Caprice.
Prosecutors also continued to focus on communications made by the snipers to police.
FBI crisis negotiator Jackie K. Dalrymple testified that she was answering phones on Oct. 21 when an unusual call came at 7:57 a.m. In the conversation, the caller repeated phrases similar to those on notes allegedly left by the snipers near shooting scenes.
The tape, which was barely audible, was played in court. But Dalrymple later read a transcript of the conversation.
"You have our terms. They are nonnegotiable," the caller said.
Fairfax County Detective June Boyle, who testified that she interviewed Malvo for six hours after he was transferred to Fairfax on Nov. 7, said she recognized the voice on the tape as Malvo's. "I've talked to him long enough to know. . . . He's very smooth, well-spoken, kind of on the high-pitched side," Boyle said. "I'd know that voice immediately."
At the end of the hearing, prosecutors entered Malvo's birth certificate, produced in his native Jamaica, into evidence. Although authorities initially had identified Malvo as John Lee Malvo, the document lists his name as Lee Boyd Malvo.