By Stephen Kiehl
October 2, 2003
The pair authorities have called a "killing team" exchanged several long glances but displayed little emotion as a packed courtroom watched Malvo answer several perfunctory questions while Muhammad stoically stared at the witness stand.
Prosecutors called Malvo to a pretrial hearing to determine whether he would testify in their case against Muhammad, who is alleged to be his co-conspirator in last year's attacks and is accused of intimidating the teen-ager into assisting in the killings.
Malvo asserted his Fifth Amendment right against self-incrimination and declined to say whether he would testify. He also took the Fifth when asked whether he knew Muhammad, though at that question Malvo locked eyes with Muhammad for several seconds before answering.
The encounter in a Prince William County courtroom lasted less than 10 minutes. While Muhammad rested his head in his left hand at the defense table, Malvo sat at the witness stand and spoke in a clear, confident voice. His attorneys later said Malvo felt a "certain amount of trepidation at being brought into Mr. Muhammad's presence."
"Clearly we intend to assert there was a very strong degree of indoctrination," said Craig S. Cooley, one of Malvo's attorneys. "Bringing him back into the presence of that person is something that concerns us and probably concerns Lee."
While on the stand, Malvo, 18, answered only questions about his name, age and place of birth. Dressed in a light-green button-down shirt and khakis, Malvo entered the courtroom from a side door and did not look at Muhammad until asked whether he knew him. Later they appeared to exchange glances that lasted several seconds.
Prosecutors, apparently frustrated by Malvo's lack of cooperation, offered to submit a list of questions to his attorneys to determine which ones he could answer. The lawyers and judge agreed to that, and Malvo is scheduled to appear again in court with Muhammad on Tuesday to answer questions.
Malvo's attorneys say they have spent recent months trying to break the hold Muhammad had on him, and the teen-ager has appeared in better spirits at recent hearings - similar to the pleasant young man described by those who knew him in Antigua before he met Muhammad, now 42.
"As Lee separates from this indoctrination, there's always a concern of being placed back in the presence of the person" who held power over him, Cooley said outside court yesterday. Asked whether Malvo was anxious before the hearing, Cooley said, "There was a degree of nervousness, a degree of concern, if not fear."
Muhammad's first trial, in the killing of Dean H. Meyers at a Manassas gas station, is set to begin Oct. 14 in Virginia Beach. Malvo's first trial, in the killing of Linda Franklin in a Home Depot parking lot in Fairfax County, is set for Nov. 10 in Chesapeake. Both were moved to find an impartial jury.
Indeed, Muhammad's attorneys objected to Malvo even appearing in court yesterday. They said the appearance would prejudice potential jurors because the media would probably make too much of the meeting and try to interpret the significance of the suspects' facial expressions.
"Anything that Lee Malvo does when he comes in this courtroom - if he looks around, if he sees Mr. Muhammad, if there's a nod, if there's a smile, if there's a frown - that's going to be diced and dissected by all these reporters," said Muhammad attorney Peter D. Greenspun.
Lead prosecutor Paul B. Ebert interjected, "Talking about what reporters are going to do has nothing to do with this case."
Greenspun continued that he wanted to avoid the "fiasco" and "brouhaha" that would result if Malvo were to enter Muhammad's courtroom. He also suggested that the appearance could be avoided by putting the questions and answers in writing.
But Judge LeRoy F. Millette Jr. allowed Malvo to take the stand to answer questions. Several dozen reporters in the courtroom jostled for position to get a clear sight line around the burly guards who surrounded Malvo and the defense table. The pool photographer in the courtroom was told that he could not take pictures.
Prosecutors have to determine now whether Malvo will testify at trial because it is unethical to call a witness to the stand in the presence of the jury if the prosecutor knows the witness will take the Fifth. Prosecutors also indicated that they need to determine whether it's necessary to introduce into evidence the statement Malvo gave police after his arrest in which he is alleged to have bragged about the killings.
Malvo's appearance wasn't the only matter before the court yesterday as attorneys scramble to prepare for a trial set to begin in less than two weeks.
Millette ruled that a security camera videotape that appears to show Muhammad in a Sav-A-Lot store in Ashland, Va., near the scene of one of the shootings is clear enough for jurors to see at trial. Defense lawyers had argued the tape was too grainy to be of any use.
Prosecutors said they will introduce evidence that shows Muhammad purchased at the store a Halloween bag and notepaper that were later found outside the Ashland Ponderosa restaurant where a man was shot Oct. 19. Muhammad and Malvo are alleged to have written a demand for $10 million on the notepaper and to have left it in the bag, tacked to a tree in the woods behind the restaurant.
The judge also ruled that testimony of a priest in Ashland who received a call from someone purporting to be the sniper can be used at trial. The judge ruled last week that the testimony would not be allowed, but prosecutors said yesterday that an electronic organizer found in Muhammad and Malvo's car contained the priest's phone number.
The judge then reversed his earlier decision.
Defense lawyers sought yesterday to exclude statements Muhammad made to police the day of his arrest. They said Muhammad was not informed of his Miranda rights until almost 90 minutes into the interrogation. Prosecutors agreed not to use material from that first 90 minutes, and the judge ruled that what Muhammad said afterward is admissible.
Finally, the judge rejected a defense motion to exclude the death penalty as a possible punishment because of the ambiguity of state laws about terrorism. While one Virginia law makes killing a person in an act of terrorism a crime punishable by death, another law provides for a life sentence.
Prosecutors said the state should be able to choose which law it uses against a defendant, and the judge agreed.
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