FAIRFAX, Va. - Over the repeated objections of defense lawyers, a Fairfax County judge set a Nov. 10 trial date yesterday for teen-age sniper suspect Lee Boyd Malvo, who could face the death penalty if convicted in the slaying of an FBI analyst outside a Home Depot.
"I am not going to be ready by Nov. 10," lead defense lawyer Michael S. Arif told Fairfax County Circuit Judge Jane M. Roush. "It is not a realistic date."
The date is midway between the February 2004 date the defense sought and the June or September dates county prosecutors wanted. A capital murder trial is set for Oct. 14 in neighboring Prince William County for the other sniper suspect, John Allen Muhammad, 42.
Roush said that while she would consider requests to postpone Malvo's trial, she wanted both sides to view Nov. 10 as a "firm date" and noted it provides twice the amount of preparation time the state's speedy trial rules allot. If the defense is considering an expert witness who would not be available then, the judge told Arif, "Keep looking, and find another expert."
Malvo is accused of gunning down FBI analyst Linda Franklin Oct. 14 in the parking lot of a Home Depot store in the Seven Corners area of the county.
Arif said he needed a year to make extensive trial preparations, which include scouring the material provided by prosecutors not only about Franklin's shooting but about others, too; working with experts; investigating the case; and questioning people around the United States, in Antigua, where Malvo lived, and in his native Jamaica.
But Commonwealth's Attorney Robert F. Horan Jr. said he would prefer not to push the date further out.
Last week, a grand jury indicted the 17-year-old on two capital murder charges and one weapons charge.
Malvo and Muhammad are accused in 13 fatal shootings in Maryland, Virginia, the District of Columbia, Alabama, Georgia and Louisiana. The shootings placed the Washington area under siege for three weeks in October. The pair also are suspected in several other shootings in which victims survived.
But the first, and perhaps only, prosecutions of Malvo and Muhammad will take place in Virginia, where Attorney General John Ashcroft referred the case in part because he said state laws there provide the best chance to secure death sentences. Unlike Maryland, Virginia allows for the execution of juveniles.
The expected length of Malvo's trial is in dispute. Horan estimated the trial would last three weeks or so. The defense said the trial could take up to three months, with several weeks for choosing a jury alone.
The November trial date means it is possible that Malvo and Muhammad will face juries at the same time in neighboring counties. Muhammad's trial on capital murder charges in the fatal shooting Oct. 9 of Dean Meyers at a Manassas gas station is expected to last up to eight weeks.
Asked outside the courtroom whether moving evidence and witnesses between simultaneous trials would pose logistical problems, Arif said, "It's going to be Mr. Horan's and Mr. Ebert's problem." Horan had told the judge that he did not foresee it as problematic. Paul B. Ebert is the commonwealth's attorney in Prince William County.
Judge Roush also said she will add prominent Richmond criminal defense lawyer Craig S. Cooley to Malvo's defense team. Arif, who appeared surprised, later said he had intended to ask Roush for more legal help. Two of Arif's law partners, Thomas B. Walsh and Mark J. Petrovich, are working on Malvo's case. Washington and Lee University law Professor Roger Groot and a few law students are also providing support.
Cooley, reached in his office yesterday, said he was surprised when Roush contacted him last week. He said he is "very impressed" by Arif, with whom he had his first conversation, by phone, after court yesterday.
He said that over his roughly 26 years of law practice, he has represented 60 capital murder defendants, though only about one-third of those went to trial as capital cases. Two are on death row.
But Malvo is likely to lose one of his lawyers soon. Roush said the job of Todd G. Petit, Malvo's court-appointed guardian, will end Feb. 18 when Malvo turns 18. Petit said he intends to see what he can do to stay on.
Malvo appeared attentive in court yesterday. As usual, he was not asked to speak, and so he did not address the judge.
Over the weekend the teen-ager had gotten a close-cropped haircut, which, Arif said, Malvo did not like. Petit said he had been trying to arrange a haircut.
His next court appearance probably will be March 3, the first of several motions hearings Roush expects.
Horan said his office is sifting through from 50,000 to 70,000 calls made to police during the manhunt to comply with requirements that prosecutors give the defense potentially exculpatory material - evidence that could cast doubt on someone's guilt.
But Horan described the "vast majority" of the reports as worthless, falling into these categories: white van sightings, psychics, callers identifying a person they dislike or recall from years ago, and comments on police work. He said he expects to turn information over to the defense by March 1.
At a preliminary hearing this month Horan alleged that Malvo sought to extort $10 million from the government in exchange for ending the shootings.
He faces the possibility of a death sentence under two Virginia provisions if he is convicted. One requires prosecutors to show that he killed more than once in three years, and the other is an untested post-Sept. 11 anti-terrorism measure that refers to intimidating the public or trying to coerce the government.