The Muhammad prosecutors have argued that he was the "captain" of a "killing team" and the moving spirit behind the shootings, which left 10 dead last fall, thus making him eligible for capital punishment even if he was not the person who pulled the trigger.
At issue: Who was the driving force in the killings? The answer could help spare one of the two suspects from the death penalty if convicted.
In a motion released yesterday, Muhammad attorneys Peter D. Greenspun and Jonathan Shapiro wrote, "The state cannot simultaneously take conflicting views in concurrent prosecutions of what the same facts are in these cases."
Prosecutors do not agree with that assessment. In an interview yesterday, lead Muhammad prosecutor Paul B. Ebert said Muhammad was "an actual participant in all of these killings" but declined to say whether he believes Muhammad fired any of the fatal shots. He said the two prosecutions are consistent.
"It's our position that it takes two to tango, and that's what happened here," Ebert said.
The lawyers asked the court to require prosecutors to turn over 23 pages of witness statements that they believe show Malvo acted on his own and was not under the control of Muhammad. That information could help them fight the death penalty for their client.
Ebert turned over those documents to Malvo's defense team but hasn't given them to Muhammad's attorneys because he says Virginia law doesn't require him to. He said they would not help Muhammad's defense.
But Muhammad's attorneys wrote of the evidence, "To the extent it shows that Malvo was the shooter, and a very willing one at that, [the evidence] mitigates against the punishment of death - both at the guilt stage by showing that Muhammad did not direct or control Malvo, and at the punishment stage by helping to establish that Muhammad was not the shooter."
Muhammad and Malvo are charged in Virginia with two counts of capital murder each - Muhammad in the Oct. 9 killing of Dean Harold Meyers at a Manassas gas station, and Malvo in the Oct. 14 killing of Linda Franklin in a Fairfax parking lot.
Malvo's attorneys have sought evidence that shows the teen-ager was under Muhammad's control at the time of the shootings. But Fairfax Commonwealth's Attorney Robert F. Horan Jr. wrote in court papers, "The Commonwealth is aware of no witness who described Lee Boyd Malvo as being 'under the spell' of John Muhammad."
Seizing on that statement in its request for more evidence, Muhammad's team wrote to prosecutors July 30, "Any evidence that Malvo was his own man, capable of making his own decisions, helps diminish the importance of any role Muhammad is alleged to have had."
One legal expert said that in sensational cases such as these, the discrepancies in the prosecution theories of what happened will not amount to much in the eyes of a jury.
"Technical defenses are not going to be very effective here. ...The prosecutors will be able to square these cases, and the inconsistencies won't be as monumental as they might now appear," said Michael Greenberger, a University of Maryland Law School professor and former associate U.S. attorney general.