More than 50 relatives and friends of the sniper victims are expected in a Virginia courtroom this morning for the sentencing of John Allen Muhammad - a haunting reminder for the trial judge of the pain caused by the shooting rampage that left 10 people dead in the Washington region.
A jury recommended last fall that Muhammad, 43, be put to death, but the final decision is up to Circuit Judge LeRoy F. Millette Jr., who could opt for the lesser sentence of life in prison without parole. He is not expected to take that course.
"It is very rare for a judge to set aside a sentence of death and impose a sentence of life," said Steven D. Benjamin, president-elect of the Virginia Association of Criminal Defense Lawyers, adding that defense lawyers must show that crucial evidence was omitted at trial.
"It is a virtually impossible undertaking."
Muhammad's accomplice, 19-year-old Lee Boyd Malvo, will be sentenced tomorrow in Chesapeake, Va.
Because a jury recommended a lesser sentence of life without parole for him, Fairfax Circuit Judge Jane Marum Roush has no leeway. She must impose that sentence.
Many families of the sniper victims plan to attend Muhammad's sentencing today in Northern Virginia and then drive south to attend Malvo's sentencing tomorrow. Even though there is little doubt as to the outcome, relatives said the sentencings would bring some relief for them.
"This signifies another phase of finality," said Larry Meyers, whose brother Dean Meyers, 53, was killed while pumping gas at a Sunoco station outside Manassas, Va. "This is a real heavy lid closing on this at this point in time."
Both Muhammad and Malvo were convicted, in separate trials, of two counts of capital murder for the October 2002 sniper attacks. They also have been linked to killings in Georgia, Louisiana, Alabama and Washington state.
Although prosecutors contended that the pair formed a "killing team," juries returned different sentences for them. Muhammad's lawyers will bring up that discrepancy today - as well as the different theories used in the prosecutions -as they seek mercy.
Prosecutors in Prince William County, Va., who tried Muhammad said that he was the "captain" of the team and that it didn't matter who pulled the trigger because Muhammad influenced the young, impressionable Malvo.
But Fairfax, Va., prosecutors who tried Malvo, argued that the teen-ager knew what he was doing. Malvo admitted to investigators shortly after his arrest Oct. 24, 2002, that he was the triggerman in most of the killings. He later told defense psychologists that he shot only one of the 10 victims and had lied earlier to protect Muhammad. It was never determined who was the triggerman.
"From a perception of fairness point of view, it just stinks," said Jonathan Shapiro, one of Muhammad's lawyers. "We think it's very relevant that someone should be condemned to death while another man was given life, particularly where the other man was the acknowledged shooter."
In court papers filed yesterday, Shapiro wrote, "the Commonwealth can speculate all it wants about who must have been the captain of a killing team. No facts support such a claim. ... It offends the Constitution to execute Muhammad and save Malvo."
Shapiro also asked that any victim impact testimony presented today be limited to the family of Dean Meyers, who was the principal victim in Muhammad's trial. Prosecutors have not indicated how many witnesses, if any, they will call.
With no witnesses expected to testify at Malvo's sentencing tomorrow, the proceedings should take about half an hour, said defense lawyer Craig S. Cooley. Malvo was convicted of two counts of capital murder in the killing of FBI analyst Linda Franklin, 47, in a Home Depot parking lot in Falls Church, Va.
Although Roush cannot change Malvo's life sentence, she can lower the fine of $100,000 for each capital murder count.
Cooley said Malvo would have no family present. His father and other relatives came to the trial to testify at state expense, but they lack the money for a trip for sentencing.
As for what comes next for the convicted snipers, prosecutors in Fairfax and Prince William counties have long said that they plan to swap defendants, each trying the other's convicted sniper.
"I think Muhammad will come here," said Fairfax Commonwealth's Attorney Robert F. Horan Jr.
But, he added, no firm decision will would be made until at least the end of this week, possibly later.
But prosecutors looking at Malvo have a larger issue looming.
The U. S. Supreme Court will rule within a year on whether it is legal to execute criminals who were minors at the time of the offense. If the court, reviewing a Missouri case, abolishes the death penalty for juveniles, there would be little reason to push forward with more trials for Malvo.
"Even if the authorities were successful in obtaining a death sentence against Malvo - which is a big if at this point - it is rather pointless if within a year we will have a holding that a death sentence is unconstitutional, a holding that frankly many people expect," Benjamin said.
The two sniper trials so far have cost more than $2 million.Copyright © 2015, The Baltimore Sun