Jurors will hear a lengthy audiotape of Lee Boyd Malvo bragging about several killings, occasionally laughing as he describes the shootings to police. The tape was made Nov. 7, 2002, during his questioning by an FBI agent and an investigator from Fairfax County, Va. Malvo's own words and the unrepentant attitude he reportedly conveys are considered among the potent evidence against him.
"His cavalier spirit is just devastating," said Michael Greenberger, a law professor at the University of Maryland. "The inaccuracies pale in comparison to the scope of the admission."
But the jury also will hear the defense raise strong questions about the propriety of authorities dropping federal charges in Maryland against Malvo and his alleged accomplice, John Allen Muhammad, and whisking them to Virginia without their lawyers' knowledge. Defense attorneys say it was wrong for authorities to question Malvo until nearly midnight without a lawyer present.
Fairfax County Circuit Judge Jane Marum Roush has ruled the statements voluntary and admissible because Malvo neither refused to talk nor did he insist on a lawyer. But the defense will be allowed to explain the circumstances to the jury.
Still, Greenberger said, given the scope of Malvo's statements, jurors are unlikely to be sympathetic to the defense's complaint, and it raises a constitutional question for appeal.
Fairfax County prosecutors have yet to enter a critical piece of evidence and testimony to tie their case together: the Bushmaster rifle they contend was used to kill FBI analyst Linda Franklin on Oct. 14, 2002, and other victims in the sniper attacks. The rifle and other evidence are in nearby Virginia Beach, where a jury is deciding the sentence for Muhammad, who was convicted Monday of capital murder.
Prosecutors zoomed through 32 witnesses yesterday - it took about three days to hear the same ones in Muhammad's trial - as they race to finish today.
"It's going to be close," Commonwealth's Attorney Robert F. Horan Jr. told Roush.
Timing has become an issue because the tentative trial schedule called for the defense to begin tomorrow with three witnesses from the Caribbean island of Antigua, where Malvo's mother left him as collateral for fake travel papers she bought from Muhammad.
Between the cost and difficulty of rescheduling flights around the Thanksgiving holiday and the witnesses' loss of pay from their jobs, Malvo's lawyers say they want to keep their defense of not guilty by reason of insanity on schedule. Also, the trial is scheduled to run only a half-day tomorrow, as Malvo has an appointment with the prosecution's psychologist.
Malvo, 18, is charged with two counts of capital murder and a weapons violation in the death of Franklin, 47, who was killed in a Home Depot parking lot in Fairfax County. One count accuses him of committing multiple murders within three years and the other accuses him of violating Virginia's untested anti-terrorism law by seeking to extort $10 million from the government. Both are punishable by execution or life in prison without parole.
Yesterday, prosecution witnesses and photos detailed five separate shootings in Maryland, Virginia and the District of Columbia. Jurors heard about phone calls to various authorities and an Ashland, Va., priest that were believed to be made by either Malvo or Muhammad. They saw notes left at two of the crime scenes, demanding money, both of which ended "p.s. your children are not safe."
Malvo, often slumping over in his seat, appeared to look at some of the evidence items but seemed to shield his eyes from others.
Nearly every witness who appeared on the stand yesterday had already testified in Muhammad's trial. Several witnesses discussed seeing Muhammad's dark-blue Chevrolet Caprice with its distinctive tinted windows and New Jersey license plates near three separate shootings.
"Everything about that car set off red flags," said Christine Ann Goodwin, a software engineer who lives near the gas station in Fredericksburg, Va., where Kenneth H. Bridges was killed Oct. 11, 2002. "It looked like someone was living out of the car."
She saw the Caprice a few hours before the shooting but didn't call police until nearly two weeks later.
"Why didn't you call about the Caprice that day?" Horan asked.
"Everyone was looking for a white van," she said.