The panel for the capital murder trial, winnowed in only two days of jury selection from 45 people questioned, will be pared to 12 jurors and four alternates this morning. Opening statements are scheduled for tomorrow -- the same day the defense is likely to rest in the capital murder trial of the other sniper suspect, John Allen Muhammad, 42, in nearby Virginia Beach.
Nearly all of the potential jurors said they are parents -- something court-appointed defense lawyer Craig S. Cooley said he hopes will translate into sympathy for Malvo from people who know how malleable teen-agers can be.
"Mr. Muhammad is every parent's worst nightmare," Cooley said, referring to the defense's contention that Muhammad was a father-figure who brainwashed Malvo.
Cooley said Malvo once followed Muhammad's every word, but his client's sentiment has changed. "It is an angry position now," he said.
The defense and prosecution, which will each strike six from the pool of 28 today, said they want people who will be fair and open-minded as they listen to the testimony of more than 100 witnesses and see dozens of items of evidence in a trial expected to take six to nine weeks.
Court officials in this southeastern Virginia city, where Malvo's trial was moved to find jurors who were not directly affected by last fall's sniper siege in the Washington area, had summoned 210 people for jury duty. That number was down to 179 in the days before the trial and had dropped to 151 by Monday, when jury selection began.
"We are impressed with the jurors here," said Michael S. Arif, Malvo's other court-appointed attorney. "These jurors, they heard the questions, they gave direct answers."
Any potential juror whose mind was made up was excused: Some said they opposed the death penalty, others said they could not consider anything else, and some pronounced Malvo guilty.
Defense attorneys asked, in so many words, can you listen to the opinions of mental health experts as they discuss brainwashing and insanity? Prosecutors asked, in so many words, do you feel you have to bow to the expert opinions or will you evaluate that testimony on your own?
One man, who said his brother is a police officer in nearby Norfolk, was asked if they talk about police work.
"No, we talk about golf, mostly," he replied.
Malvo was 17 when charged with two counts of capital murder in the death of FBI analyst Linda Franklin, 47, who was killed Oct. 14, 2002, in a Home Depot parking lot near Falls Church, Va. One count alleges he killed more than one person in three years. The other is under Virginia's untested anti-terrorism law, which alleges that the sniper killings were an effort to extort $10 million from the government.
If convicted, Malvo would face either execution or life in prison. If he is found not guilty by reason of insanity, he would be sent to a Virginia state mental institution.
Malvo and Muhammad are suspected in 13 shootings, 10 of them fatal, in the Washington area, and in other crimes as part of a cross-country rampage.
With trials for the two men overlapping, the logistics of moving evidence is becoming an issue. In the Malvo case, Fairfax County Commonwealth's Attorney Robert F. Horan is likely to want to show the Bushmaster rifle believed to be the murder weapon in his opening remarks or soon after. But prosecutors in the Muhammad case may also want it at the end of this week.
Also this morning, the defense will ask Fairfax County Circuit Judge Jane Marum Roush to strike the entire jury panel because, under Virginia law, death penalty opponents were thrown off. The motion is probably doomed, but Cooley said it will be an issue for appeal if Malvo is convicted.