VIRGINIA BEACH, Va. - Prosecutors rested their case against John Allen Muhammad yesterday with an unconventional argument: The fear and terror caused by last fall's sniper shootings demand the death penalty for Muhammad even though he might not have pulled the trigger in the attacks.
Lead prosecutor Paul B. Ebert all but admitted that the emotional and detailed testimony of the past three weeks has failed to prove Muhammad fired any of the shots that killed 10 people and injured three last October. But as soon as he made that admission, Ebert said it didn't matter anyway.
Ebert also specifically addressed the killing of civil engineer Dean H. Meyers at a gas station on Oct. 9, 2002 - the slaying at issue in this trial.
Ebert said "it's fair to say" that the shooting appeared to be the work of Malvo because a police officer saw Muhammad in his car a half-hour after the attack, indicating Malvo was in the trunk.
Prosecutors believe that some of the sniper shootings were carried out from the trunk of Muhammad's blue Chevrolet Caprice, with the muzzle of the rifle poking through a beveled hole cut above the license plate. Experts testified that they found gunshot residue in the trunk of the car.
The comments came in response to a defense motion to strike the charges because of a lack of evidence. Despite the testimony that a rifle found in Muhammad's car fired the bullets that killed 10 people, and despite a gun port cut into the trunk of the car, defense attorneys said not a bit of evidence shows Muhammad fired the weapon.
"The person who buys the car, cuts out the hole and provides the gun is not the direct participant," said defense lawyer Peter D. Greenspun, responding to prosecution claims that Muhammad ordered Malvo to kill. "There's no evidence during the October time frame of Mr. Muhammad giving Mr. Malvo any direction or order at all."
Judge LeRoy F. Millette Jr. said he would consider the motion to strike - a routine defense tactic in criminal trials - and announce his ruling tomorrow. Court is not in session today because of Veterans Day.
Prosecutors admitted from the beginning that they have no direct evidence - in the form of a confession or witness accounts - against Muhammad.
"There will be no eyewitness testimony to any of these shootings," prosecutor James A. Willett said in his opening statement. "That's how clever he is."
But prosecutors promised a mountain of circumstantial evidence, and they have methodically assembled bits of evidence from various scenes.
Muhammad's DNA was found on a pen barrel near one shooting. His fingerprints were at another scene. Witnesses occasionally saw him near shootings.
On their own, the bits might not amount to much. But by stringing the evidence together across the 16 shootings presented at the trial, prosecutors hope jurors will see a pattern and have little doubt about who committed the crimes.
Prosecutors made frequent use of their two most significant pieces of evidence - the Bushmaster rifle found in Muhammad's car and the car itself. Prosecutors waved the rifle before the jury box and asked witnesses to handle it. Jurors were taken to a garage to view the car for themselves last week.
"This car became a mechanism of death," Ebert said in court yesterday.
The car provided a bounty of evidence for prosecutors: a right-hand brown glove that appeared to be the mate of a left-hand glove found at the final sniper killing scene, a global positioning system unit, ear plugs, walkie-talkies, a laptop computer, a digital voice recorder and the rifle.
Authorities said the Bushmaster had one live round of ammunition in its chamber and Malvo's fingerprints on the grip. Ballistics tests showed that it fired the bullets that killed 10 people last fall "to the exclusion of all other weapons," according to ballistics experts.
The laptop computer in the car was identified as the one stolen from Paul LaRuffa after he was shot several times outside his restaurant in Clinton, Md. The computer contained a draft letter that demanded $5 million to put an end to the killings and maps that marked some of the shooting sites with skull-and-crossbones icons.
"In that computer we have a map of the dastardly deeds they've done, a record of the shootings," Ebert said in court yesterday. The digital voice recorder contained two recordings - one was 21 minutes of news conferences by former Montgomery County Police Chief Charles A. Moose, the head of the sniper task force. The other recording lasted 20 seconds and contained two voices identified as Muhammad's and Malvo's by detectives.
The voice said to be Muhammad's reiterates the demand for $10 million first mentioned in a note left in the woods behind the Ponderosa in Ashland, Va.
The voice said to be Malvo's then says, "Until then, just follow the body bags."
Muhammad's Caprice also contained, on a slip of paper stuffed between the front passenger headrest and the seat back, a list of five schools in Baltimore County that might have been potential targets. And, in a rucksack in the car, authorities found a gun sight with Muhammad's DNA on it.
That sight is the closest authorities have come to placing the weapon in the hands of the Army veteran who was skilled at marksmanship. The sight fit the Bushmaster rifle, but there was no proof it was ever mounted.
Muhammad is charged with two counts of capital murder in Meyers' death at a Sunoco station north of Manassas, Va. One provides for the death penalty for killing more than one person in a three-year period. The other calls for death under Virginia's new anti-terrorism law.
That law, passed after the Sept. 11, 2001, terrorist attacks, makes killing a person in the commission of an act of terrorism a capital crime. This is the first time the law has been used, and it's not clear whether it will stand up to an appeal. The defense argued yesterday that the law is meant for Osama bin Laden types - not Muhammad.
Securing the death penalty under the multiple-killings law is also questionable. The law requires proof that the defendant was a direct participant or "principal in the first degree" - in other words, the trigger man. Prosecutors argue that Muhammad's role as the guiding spirit in the attacks fulfills the trigger man requirement.
"We can't say who the trigger man is, but we certainly can say we had joint participation," Ebert said, going as far as calling Malvo a "soldier" for Muhammad's cause of spreading fear and extorting the government.
Defense attorneys aren't so sure. "It is the killer who is the last person who has the opportunity to stop the death from occurring," Greenspun said. "There is no evidence that Mr. Muhammad is the person who pulled the trigger of the rifle that caused Mr. Meyers' death."
The final witness for the prosecution yesterday was a Montgomery County police sergeant who supervises homicide investigators. He described the morning of Oct. 3, 2002, when four people were killed in the county in just over two hours. He said he told his officers to put on bulletproof vests.
"I was fearful of what would happen to the employees I had out there," testified Sgt. Roger Thomson. "We had an individual who was randomly shooting individuals, and we didn't know who they were or where the next shooting would be."
Ebert showed Thomson a map of the shooting scenes - the state's final piece of evidence, No. 406 in this trial - and asked him to walk the jury through them once more, one by one. After doing that, Thomson pointed to the rest stop on Interstate 70 in Frederick County where the suspects were arrested Oct. 24 last year.
Ebert asked him, "From that date to this one, has there been another sniper shooting?"
"No," Thomson said, "nothing like this."