Defense attorneys believe the statements indicate that Malvo acted on his own in the sniper shootings that terrorized the Washington region last fall and that he was not under Muhammad's control. The information could help spare Muhammad from the death penalty if he is convicted.
The defense team said it needs the statements to have a record of what the witnesses told police in case they change their stories when they testify at trial. Also, the lawyers have had trouble finding some of those people. At least three of the 13 live in Jamaica, where Malvo grew up, and others have refused to speak to the defense.
Also yesterday, Prince William Circuit Judge LeRoy F. Millette Jr. ruled that prosecutors must disclose to the defense details about handwriting, voice and witness identifications of Muhammad. But the defense team will not get the names of the people who made the identifications.
Two witnesses were unable to identify Muhammad or Malvo from photo spreads, attorneys said. It is unclear how many witnesses were able to positively identify the suspects. Other witnesses apparently have been asked to match the suspects' voices and handwriting with notes left at several of the shootings and phone calls made to investigators while the suspects were at large.
Prosecutor Paul B. Ebert said he was reluctant to turn over the names of the witnesses because he didn't want them to be harassed by defense attorneys. "We have witnesses that have been contacted numerous times," Ebert said. "These witnesses have made it clear they don't want to be bothered, they don't want to be harassed, and they continue to be contacted."
Defense attorney Peter D. Greenspun strongly denied that. "Nobody has been harassed; nobody has been put-upon," he said. "It's insulting [to suggest so], and it's just not correct."
Greenspun noted wrongful death convictions, mistakes made by lawyers and courts in death cases, racial discrepancies and disparities among states.
"This is not a philosophical argument," Greenspun said. "We need to convince the court that the death penalty cannot be properly applied. There are mistakes made by judges. There are mistakes made by prosecutors. There are prosecutors who may not act in good faith. There are defense attorneys who are drunk at the table."
Assistant Commonwealth's Attorney Richard Conway responded strongly, saying the court should not waste its time with an evidentiary hearing on an issue that has been decided by higher courts.
"This court is bound by the legal precedent of the Virginia Supreme Court and the United States Supreme Court," said Conway.
The judge declined to schedule an evidentiary hearing on the matter, but he invited defense lawyers to submit written arguments.