By Andrea F. Siegel
May 3, 2006
Montgomery County prosecutors want Malvo, now 21, to testify against Muhammad in coming weeks - setting up the dramatic spectacle of Muhammad, who is acting as his own attorney, cross-examining Malvo on the witness stand. It would be the first time that Malvo has taken the stand to publicly discuss the siege that terrorized the Washington area.
An agreement would call for Malvo to plead guilty to the same six Montgomery County killings for which Muhammad is on trial and accept sentences of life without parole, a source familiar with the cases said. Sources, who spoke on the condition of anonymity because of the sensitive nature of the discussions, said Malvo and his attorneys have spoken with prosecutors.
Malvo's lawyers did not return telephone calls, and prosecutors declined to comment.
"We are not going to comment on any of the evidence that may or may not be presented during the course of the trial," said State's Attorney Douglas F. Gansler.
Malvo's appearance would not only mean a confrontation between the two halves of what prosecutors in Virginia called a killing team when both were convicted in that state, but would likely feature Malvo being pressed about the inconsistent admissions he made to Virginia authorities and to experts who testified in 2003 that he was mentally ill.
"His character would definitely be on trial," said J. Wyndal Gordon, one of three Baltimore lawyers acting as standby counsel for Muhammad. Still, he said, the 45-year-old Muhammad "harbors no ill will" against Malvo.
"In Maryland, he is going to make a jury listen because he was there," said Abraham Dash, a University of Maryland law professor who is a former federal prosecutor.
Told that Muhammad could be questioning Malvo, Dash said, "That's ridiculous."
He said that even if Malvo's past inconsistencies are brought out, prosecutors have nothing to lose by having him offer a first-person account of the shootings, efforts to instill fear in millions of people and extortion demands.
Malvo has worked with prosecutors before. After he was convicted in 2003 and sentenced to life without parole for a sniper slaying in Fairfax County, Va., he pleaded guilty in 2004 to two sniper shootings in Spotsylvania County, Va., and was given a life term. His lawyers in Virginia said he was prepared to plead guilty and testify against Muhammad in 2003, but the deal with Prince William County prosecutors collapsed.
Muhammad was convicted of capital murder in that trial and sentenced to death. That is on appeal.
Sources said Malvo, whose lawyers said he was brainwashed by Muhammad while the elder acted as a father figure, has come to see Muhammad in a different light.
The sniper shooting rampage turned the Washington area into a ghost town for three weeks in October 2002, as 13 people were shot, 10 of them fatally. Hundreds of thousands of students were kept indoors as people zig-zagged through parking lots, were afraid to pump gas, and stopped going to outdoor events.
Six of the deaths were in Montgomery County. Authorities in Alabama and Louisiana want to try Muhammad and Malvo for murders there, and officials suspect them in others in Georgia and Washington State.
Gordon said Muhammad was not shocked to hear that Malvo might testify against him and is gearing up to deal with it.
"Let's just say he is prepared to question Mr. Malvo," said Gordon, who was appointed as a standby lawyer after Muhammad fired the public defenders who were representing him. They alleged that the Gulf War veteran was too mentally ill to stand trial.
Muhammad had included Malvo on his list of potential witnesses. Prosecutors had indicated that they might call the Jamaican-born Malvo as a witness, Gordon said.
Legally, the stage could already be set for Malvo to testify for prosecutors, as he and Muhammad are not being tried together. Malvo's trial here is scheduled for October.
"He's not going to be the star witness for the prosecution," Gordon said. "If the prosecution's case depended on Malvo, the case would not be strong at all."
Malvo told mental health experts for his defense that he was the shooter in two slayings, the experts testified in his 2003 trial. Those were the killing in Washington state of the niece of a woman who testified against Muhammad in a bitter custody dispute with his ex-wife, and Conrad E. Johnson, the Fort Washington bus driver who became the final sniper victim on Oct. 22, 2002 as he prepared to start his bus route in Montgomery County.
But he told investigators that he carried out almost all the sniper shootings.
Lawyers said Malvo could be an effective, if eerie, witness for the prosecution, even if Muhammad asks him about his inconsistent statements.
"It's going to be mighty weird, mighty goddamned weird," to have Muhammad question Malvo, said Michael S. Arif, one of two lawyers who headed Malvo's defense in Virginia.
He said he would worry about what Malvo would say. "Nobody knows what is going to come out of this kid's mouth. He could say, 'I shot everyone,' " Arif said. "He has nothing to lose."
Although Malvo never took the stand against Muhammad, jurors in Malvo's 2003 Virginia trial heard a tape-recording made by police in which a smug and snickering Malvo confessed and toyed with interrogators, boasting of his shooting prowess and declaring that he wanted to plunge America into a state of "martial law" during the sniper rampage.
In that audiotape, Malvo laughed and said he had no remorse for the shootings. He said the shootings were aimed at creating such turmoil that government officials would give in to the pair's demands for $10 million.
After predicting that Muhammad would be executed, Malvo said he expected he would face the same fate. "They will kill me too, oh yeah. But they don't have to make a deal. Right now, I incriminate myself."
If Malvo and Montgomery County prosecutors do not reach an agreement, Muhammad cannot force Malvo to speak on his behalf. Malvo would be allowed to protect his right not to incriminate himself, said William R. Blanchard, Malvo's lawyer in Alabama.
Facing inquiries from Muhammad "would probably dredge up some memories that Lee probably would not want to revisit," Blanchard said.
He said he has not been approached about a deal that could include two shootings, one of them fatal, in Alabama.
Jose F. Anderson, a University of Baltimore law professor and defense expert, said that once a defendant represents himself, the entire case becomes unpredictable, including the reactions witnesses have to being questioned by the person who accused them of wrongdoing.
"It's a case-by-case, witness-by-witness adventure," he said.
If Malvo is not called by prosecutors and refuses to testify for Muhammad, it may be possible to get some of his prior inconsistent statements admitted, Anderson said. Inconsistencies, he said, are "one of the greatest things to create doubt in the mind of a juror."
Yesterday, Judge James L. Ryan agreed with prosecutors over Muhammad's objection to allow relatives of victims to listen to testimony in the courtroom. Individual questioning of potential jurors for the trial, expected to last a month, continued. So far, 53 people have been told to return tomorrow for jury selection. A pool of about 60 is needed to select 12 jurors and four alternates. Jury selection is to resume today.
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