Circuit Court Judge Jane Marum Roush denied portions of all motions argued by Lee Boyd Malvo's defense attorneys, Michael Arif, Craig Cooley, Thomas Walsh and Mark Petrovich. Roush heard the arguments on Monday, March 31, during the third in a series of monthly motions hearings before Malvo's trial, currently scheduled to begin on Nov. 10, 2003 in Fairfax County.
Malvo, now 18, is charged with the murder of Linda Franklin, an Arlington resident who was killed outside a Home Depot in Seven Corners on Oct. 14, 2002. He was 17 at the time of the shootings.
Malvo and John Muhammed, who is scheduled to be tried in Prince William County in October, 2003, were arrested for the October, 2002, sniper attacks that left 10 dead and three injured in the Washington area. Prosecutors Robert F. Horan and Raymond Morrogh presented their views before Roush made her rulings.
* ON EXECUTING JUVENILES. The juvenile death penalty is unconstitutional because it contradicts "evolving standards of decency," said defense attorney Michael Arif. The juvenile death penalty is still "the law of the land," Horan said. The law of the land is still what the Circuit Court is required to follow, said Roush, who denied the defense's motion to declare the juvenile death penalty unconstitutional.
* EXPERTS. Roush granted Malvo's attorneys a DNA expert, a ballistics expert and a fingerprint expert. Reminding defense attorneys of the three investigators and mental health expert she already granted last month, Roush denied their request for a mitigation specialist and also denied a voice/audio expert and handwriting expert.
* PRISON LIFE. If Malvo is convicted, the rest of his life will be spent in jail. How dangerous he could possibly be in the future depends mostly on conditions, restrictions, and isolation within jails, said Cooley, his defense attorney. “Future dangerousness” is one aggravating factor that can lead to a death sentence.
"Prison is still a dangerous and violent place," said Morrogh. "The Commonwealth could bring an army of witnesses who could testify to that, but that will take away from the focus of this case, the defendant."
Roush denied the defense's motion to allow evidence of general prison life conditions but will allow evidence of the ways Malvo specifically has responded to his prison life.
* UNADJUDICATED ACTS. Evidence of Malvo's possible involvement at scenes of other sniper attacks in Maryland, D.C. and Virginia will be permitted to be used during the sentencing phase of the trial if Malvo is convicted. Defense attorneys had requested to bar Horan from using unadjudicated acts during the sentencing phase since their client has not been convicted of any of these crimes.
* VICTIM IMPACT STATEMENTS. Roush denied the motion to limit victim impact testimony to those who were at the scene of the crimes. "We should not be permitted to limit victims as mere spectators in these cases," Morrogh argued. Roush will hold a pretrial conference on this issue to determine who, in fact, are victims in the case. A police dispatcher in Maryland, for example, wants to testify as a victim.
* JURORS. Both prosecuting and defense attorneys will receive each potential juror's information questionnaire 48 hours in advance of jury selection, despite request by Malvo's attorneys to receive the information by Aug. 1, 2003.
BILL OF PARTICULARS. Horan doesn't need to get any more specific than the charges spelled out against Lee Boyd Malvo. Malvo is charged with capital murder of Linda Franklin, the "said killing being the killing of more than one person within a three year period," according to the indictment. Horan said he will use evidence of the killing of Dean Myers in Prince William County on Oct. 9, 2002 to prove the additional offense.
Malvo has been also been charged with the murder of Linda Franklin under the Terrorist Statute, defined in Virginia Code. Roush ruled that Horan does not need to inform defense attorneys if he intends to prove the act of violence was committed with the thought to intimidate the civilian population at large or to influence the conduct or activities of the U.S. government, a state or locality through intimidation. Horan could attempt to prove both.
UNCONSTITUTIONAL? The definition of vileness/depravity of mind is not unconstitutionally vague, ruled Roush and the jury will decide the relevance of "depravity of mind" in the case, if it convicts Malvo. Defense attorneys said depravity of mind comes close to some type of psychological torture, and a single shot to the head does not fit this definition.
An execution style killing fits the definition of depravity of mind, said Horan. "It is hard to believe, sitting 100 yards away with a rifle, executing someone you don't know, a person selected at random, a person killed in ambush…is not an execution style killing," said Horan.