Defense lawyer Craig S. Cooley said during yesterday's court hearing that the defense was so outgunned by the combined prosecution efforts of state and federal officials that his investigators find that witnesses they question have already been interviewed by four or five federal and state investigators since Malvo's arrest Oct. 24.
"We don't have any thought that we would get dollar for dollar," he told Fairfax County Circuit Judge Jane Marum Roush. But he said the defense would use the information in making a plea for funds from the federal courts because, he said, Malvo was in effect being prosecuted by federal and Virginia authorities. Fairfax County officials recently applied for a $200,000 federal grant to help with prosecution costs.
Fairfax County Commonwealth's Attorney Robert F. Horan Jr. opposed the request, calling "farfetched" the defense notion that federal courts would chip in for the defense in the Virginia case. Horan said the defense was really looking to have a federal judge pay for the mitigation expert - a specialist who could help spare Malvo from execution if convicted - that Roush turned down several months ago.
"I do think I have approved every reasonable expense in this case," Roush said in denying the most recent request.
Afterward, Horan said the defense was trying to appear as "David going after Goliath," but Cooley said the money issue was "a matter of fairness."
Yesterday's hearing did not resolve the defense pitch to have some of its witnesses testify either by a taped statements or through video conference calls that put them on courtroom monitors from other states, and from the Caribbean islands of Antigua and Jamaica where Malvo was raised. It also would relieve the defense of the problem of trying to obtain a visa for Malvo's mother, who was deported to Jamaica last year.
Horan is still reviewing two dozen tapes - which include statements from Malvo's relatives and teachers - that he said would be excessive for a jury and that lacked context. He noted that the technique has never been used in a criminal trial in Virginia.
Cooley, who said using the tapes could save $18,000, said witnesses testifying on video conference calls would speak not only about Malvo's background, but about how John Allen Muhammad was able to approach him.
Malvo, 18, and Muhammad, 42, are accused in last fall's string of 13 sniper shootings in the Washington area, 10 of them fatal.
Malvo is charged with gunning down FBI analyst Linda Franklin, 47, outside a Home Depot in the Seven Corners section of Fairfax County. His trial, expected to take about nine weeks, is scheduled to begin Nov. 10. Muhammad is being tried in the Oct. 9 fatal shooting of Dean Harold Meyers, 53, at a gas station outside Manassas. His trial is scheduled to open Oct. 14.
Both trials have been moved to the Hampton Roads area of southeast Virginia.