Evidence shows teenager was gunman in a sniper death
( 2002-10-28 16:41 ) (7 )

Prosecutors in Virginia said today that they had evidence that the 17-year-old charged with an adult in the sniper attacks that terrorized the Washington suburbs was the gunman in at least one of the shootings.

The prosecutors are using the revelation to buttress their argument that Virginia is the best venue for the first trial of the two, who would both be eligible for the death penalty here.

Commonwealth's Attorney Robert F. Horan Jr., the prosecutor for Fairfax County, said investigators believed that the teenager, John Lee Malvo, was the killer in the Oct. 14 shooting of Linda Franklin, 47, an analyst with the Federal Bureau of Investigation who was felled by a single shot to the head inside a parking garage at a Home Depot in Falls Church, Va.

"There will be evidence that the juvenile was the shooter," Mr. Horan said. He refused to provide any more details.

As jockeying for control of the case intensified today, federal officials said they would support holding the first trials in Virginia. But the officials said the Justice Department still maintained that a federal court would be the best venue for prosecution and was considering taking over the case.

Federal prosecutors who have custody of the two men will have the final say on which jurisdiction conducts the first trial.

Prosecutors in Montgomery County, Md., where 6 of the 10 people were killed, filed murder charges on Friday against the two, Mr. Malvo and John Allen Muhammad, 41.

But federal prosecutors and those in Virginia have noted that Maryland's death penalty law is rarely used and that Mr. Malvo could not be executed in that state because he was under 18 at the time of the killings.

As federal and Virginia prosecutors met over the weekend to discuss a strategy for prosecuting what is certain to be a highly publicized trial, one federal law enforcement official said the group felt that State's Attorney Douglas F. Gansler, the Montgomery County prosecutor, "just cut us out of the process and doesn't want to deal with us."

The decision on where to first prosecute Mr. Muhammad and Mr. Malvo has divided state and federal officials in a manner not seen during the three-week investigation. Mr. Gansler said Montgomery County was the logical place to lead because most of the killings occurred there. Mr. Gansler, a Democrat who is considering a run for state attorney general, denied accusations by Republicans in government and law enforcement that his decision was politically motivated.

Investigators today continued to explore leads about the actions of Mr. Muhammad and Mr. Malvo in the 15 months before the shootings. A law enforcement official said today that they were investigating whether Mr. Muhammad and Mr. Malvo had been involved in several crimes or schemes in Antigua, Alabama, Indiana, Maryland, the District of Columbia and Washington State.

Police officials said they were examining whether Mr. Muhammad and Mr. Malvo had been involved in several robberies in the Washington area and other parts of the country to help finance the killings they are accused of.

"We are looking into other incidents around the country, and certainly in the Washington area," Douglas Duncan, the Montgomery County chief executive, said.

Sgt. Scott Martino, a spokesman for the Montgomery Police Department, in Montgomery, Ala., where Mr. Muhammad and Mr. Malvo are charged in a murder that occurred before the sniper attacks began on Oct. 2, said investigators there were trying to determine whether the pair was involved in other crimes.

Despite the divisions, Mr. Horan, the Fairfax County prosecutor, said prosecutors were working well together on retracing the men's steps before and after the shootings.

"There are a lot of security cameras out there that are being re-evaluated, instead of looking for a white van, they are looking for a Caprice," he said. "They keep coming up with more examples every day."

Mr. Horan has not said when he will file charges against the pair. But Virginia prosecutors in Spotslyvania County, where one person was killed and another was injured, and in Hanover County, where one person was killed, said they planned to file charges on Monday.

Other charges are expected to be filed in Prince William County, Va., where one person was killed; Prince George's County, Md., where a 13-year-old boy was seriously injured; and in Fairfax County.

Virginia officials would like the United States attorney for Maryland, Thomas M. DiBiagio, who has Mr. Muhammad and Mr. Malvo in custody in Baltimore on unrelated federal charges, to turn the pair over to prosecutors in their state, where the death penalty has been used frequently and provides less opportunity for appeal.

Federal officials said it would be politically impossible for Mr. DiBiagio to turn the two men over to local prosecutors in Virginia when Montgomery County, Md., filed its charges first and had most of the victims.

To avoid Montgomery County going first, federal officials are exploring the option of pre-empting all the local prosecutors and charging the two under the Hobbs Act, which makes it a federal crime to break the law as a part of an interstate extortion scheme. The officials said the snipers' demand for $10 million could be used to make that case.

"It looks like the prosecutors are breaking ranks," Toby Vick, a former state and federal prosecutor in Virginia, said today. "They are not doing as good a job cooperating as the law enforcement people."

Three men have been executed in Maryland since the death penalty was reinstated in the United States in 1976, compared with 86 in Virginia. Five months ago, Gov. Parris N. Glendening placed a moratorium on executions in Maryland pending a review by a criminology professor at the University of Maryland at College Park. But in a move widely viewed here as an effort to insulate Lt. Gov. Kathleen Kennedy Townsend, the Democratic candidate for governor, from criticism, Mr. Glendening said on Friday that the review would be completed soon and would not get in the way of seeking the death penalty against Mr. Muhammad.

Mr. Gansler, the Montgomery County prosecutor, defended his decision to quickly file six counts of murder against Mr. Muhammad and Mr. Malvo. Mr. Gansler said he would seek the death penalty against Mr. Muhammad and a life sentence for Mr. Malvo.

Federal officials have criticized Mr. Gansler for filing charges before reaching a consensus with other prosecutors.

One federal official said Mr. Gansler's decision to file had "more to do with getting out there first and grabbing headlines than working as a team."

But Mr. Gansler said there was still an open debate about which jurisdiction should go first, adding, "Politics should have no part whatsoever, ever, in any prosecutorial decision."

There is some question, the authorities said today, about whether Mr. Malvo, who is believed to be an illegal immigrant from Jamaica, is 18 or is indeed 17. Kirby Porter, the chief prosecutor in Hanover County, Va., said his office would empanel a grand jury on Monday to seek indictments against Mr. Muhammad for the Oct. 19 shooting outside the Ponderosa Steakhouse in Ashland, Va. Mr. Porter said he was waiting to seek indictments against Mr. Malvo because of the questions about his age.

If it turns out that Mr. Malvo was 18 at the time of the crimes, Maryland could seek the death penalty against him as well.

If the federal government chooses to prosecute the Virginia cases, they could not be retried in that state because of concerns about double jeopardy.

Justice Department officials said that Attorney General John Ashcroft, who was in Asia last week as the sniper investigation came to a head, returned to Washington today and would be briefed on Monday on options for prosecution. "The situation is still very much in flux," a Justice Department official said.

Mr. Ashcroft is a strong proponent of the death penalty, and he is also close to Paul McNulty, the United States attorney for the Eastern District of Virginia. Several people in the Justice Department speculated that Mr. Ashcroft would push to have Mr. McNulty's office take the lead in the case. Appellate judges in that district are considered less likely to overturn a death sentence than those in the region that includes Maryland.

Officials said it was unlikely that Mr. DiBiagio would turn the two men over to prosecutors in Alabama. Federal officials said that Mr. DiBiagio, the United States attorney for Maryland and a future candidate for the state's attorney general post, presumably would not want to turn the case over first to Mr. Gansler.

Federal officials said they planned to try to work out the jurisdictional issues with Mr. Gansler.

"We want to work this out cooperatively, but the feds do have control of the custody of the suspects," one Justice Department official said. "And we ultimately have the final call."