Malvo's lawyers had argued that foreign countries and international treaties banning the death penalty for juveniles combined to rule out execution for Malvo, who was 17 at the time of the shootings last fall. But prosecutors contended that the Virginia law allowing execution of juveniles is constitutional.
Although most of the sniper victims were killed in Maryland, federal authorities sent the first prosecutions to Virginia because of the state's tough record on capital punishment. Over the past 25 years, Virginia is second only to Texas in the number of executions.
Judge Jane Marum Roush denied the defense motion, saying that while the United States might someday bar the execution of juveniles, for now it allows it.
The ruling, while expected, was nevertheless a disappointment for the defense, which had called Richard J. Wilson, an American University law professor specializing in international human rights, to bolster its position. During about 30 minutes of testimony, he said the United States is the last civilized nation to execute juveniles and contended that the practice runs counter to international law.
Calling the execution of juveniles "abhorrent," Craig S. Cooley, one of Malvo's lawyers, said: "I think the world has said we are going to draw a bright line at 18. ... The world has spoken. This is not a close call."
"International law was not the issue in here today as far as I was concerned," Commonwealth's Attorney Robert F. Horan Jr., said after the hearing.
He argued that federal and Virginia law allows the execution of juveniles and that the United States has exempted itself from sections barring the death sentence for juveniles in international treaties. While Horan is expected to seek execution if Malvo is convicted, he has said he will first see what the evidence is.
Malvo, now 18, and John Allen Muhammad, 42, are charged in 13 shootings, 10 of them fatal, in Maryland, Virginia and the District of Columbia, and are suspected in others around the country. Their trials are the first under Virginia's anti-terrorism law. Prosecutors contend that the duo sought to extort $10 million from the government to end the killings.
Yesterday, in response to a defense bid, Roush ordered Horan to give Malvo's lawyers notice that he intends to use the extortion provision of the law and not the one that allows execution for a murder committed as part of terrorizing the population. Roush refused a defense request to force prosecutors to specify the acts of terrorism and give them related information, which Malvo's other lawyer, Michael S. Arif, said the defense needs to attack the new law.
Malvo is set to stand trial Nov. 10 on capital murder charges in the killing Oct. 14 of FBI analyst Linda Franklin, 47, in the parking lot of a Home Depot store in the Seven Corners section of Fairfax County, a wealthy county outside the nation's capital.
Muhammad's trial on capital murder charges in the killing Oct. 9 of Gaithersburg engineer Dean Harold Myers at a gas station near Manassas is set to open Oct. 14.
Both trials were moved 200 miles southeast to the Hampton Roads area, Malvo's to Chesapeake and Muhammad's to Virginia Beach.