Maryland and Virginia prosecutors turned up the volume yesterday on a debate over who should try the high-profile sniper case first - the state where the killings began and ended, or the commonwealth where both suspects could get the death penalty.
Montgomery County is the only jurisdiction to file charges against John Allen Muhammad and Lee Boyd Malvo. But Hanover County, Va., plans to follow suit today, and at least one other Virginia county expects to be close behind.
Because Malvo is 17 - too young to be sentenced to death in Maryland - the question of who the shooter was looms large. William F. Neely, the Spotsylvania County commonwealth's attorney who intends to file charges shortly, said he believes that Malvo either fired the gun or drove the getaway car.
"Law enforcement has been investigating the case under the theory that both men have shot at some point," Montgomery County State's Attorney Douglas F. Gansler said yesterday.
The federal government also could decide to prosecute the suspects under the Hobbs Act, which allows for the death penalty if murder is accompanied by extortion or other aggravating circumstances.
Gansler said extortion would be tough to prove in all the killings because demands for money did not come until late in the sniper attacks.
Gansler said politics had nothing to do with his quick decision to indict, but he based his argument for a Maryland prosecution in part on issues beyond the law. He said he would not be doing the job the people of Montgomery County expect if he didn't move swiftly.
"Because Montgomery County was disproportionately affected, because the crime spree began and ended in Montgomery County, we believe the case should be prosecuted in the epicenter of these crimes," he said in a telephone interview with The Sun. "But we also have the best evidence because seven of the 14 shootings were here, and six of the 10 homicides."
Robert F. Horan Jr., the commonwealth's attorney for Fairfax County, where the snipers killed one person Oct. 14, thinks the case should be tried in Virginia first.
"Virginia has the potential of getting the death penalty on both defendants," Horan said. "Maryland does not."
Maryland's death penalty statute may also be useless against Muhammad.
The state's attorney whose county has put more defendants on death row than any other - nine of the 13 - says death sentences cannot be given to serial killers under Maryland law.
Prosecutors in the state must prove one of 10 "aggravating circumstances" to warrant a death sentence, and the only one that comes close to applying in the sniper case is if multiple murders are committed as part of the "same incident," said Sandra A. O'Connor, Baltimore County state's attorney.
But shooting someone, driving elsewhere and shooting someone else is not the same incident, she said.
She pointed to a state Court of Appeals decision in 2000, in which a death sentence for a serial killer was overturned because the aggravating factor - robbery - was committed as an afterthought to murder. In Joe Roy Metheny vs. State of Maryland, the dissenting judge wrote that the reason the robbery was an issue at all is because the legislature "has not established serial murder as a death-qualified offense."
O'Connor knows this won't make sense to most people.
"The average, common-sense intelligent person would say, 'If you had a death penalty, of course this case would apply,'" she said.
O'Connor said that if she were in Gansler's position, she would ask the federal government to try the case because its death penalty statute would apply at least to Muhammad.
But Gansler is convinced that Maryland could win a death sentence for Muhammad. He argued that the shootings constitute a single incident - particularly the four Montgomery County shootings that happened Oct. 3 within 2 1/2 hours and a few miles of each other.
Virginia's death penalty statute is clearer: Prosecutors can seek death for people convicted of killing two or more people within a three-year period, said Neely, the Spotsylvania prosecutor.
He expects swift action.
"All four Virginia localities will be seeking indictments either [today] or as soon as possible," he said. "We have to move this quickly because we don't want to be pre-empted by federal charges."
He said he will file charges of capital murder against both Muhammad and Malvo.
Hanover County Commonwealth's Attorney Kirby H. Porter will seek indictments today against both men in the Oct. 19 shooting of a 37-year-old man in Ashland, Va.
He plans to ask a Circuit Court grand jury to indict Muhammad on charges of attempted capital murder, commission of an act of terrorism and conspiracy to commit capital murder, and he will seek similar charges against Malvo in juvenile court.
Part of the reason the counties are jockeying for position is that the jurisdiction that tries the case first may be the only one to do so. Gary Christopher, an assistant federal public defender, said a death penalty case would cost at least $1 million.
"Whether you're going to spend a million dollars to do it a second time and a third time is, I think, a bigger question," he said.
For his part, Horan said he is not planning to file charges in Fairfax until more of the "tremendous amount of evidence" is processed.
"I've been doing this for 36 years now; if there's anything I've learned in 36 years, it's patience," he said. "If these people were going somewhere, there might be some urgency. But they're not going anywhere."
Sun staff writers Jonathan D. Rockoff and Johnathon E. Briggs and Sun researcher Shelia Jackson contributed to this article.
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