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2 charged with murder in Md.

THE BALTIMORE SUN

ROCKVILLE - Montgomery County authorities brought the first murder charges last night against an Army veteran and his teen-age companion in the string of deadly sniper shootings as prosecutors in three states and Washington, D.C., thrashed out which jurisdiction would get the high-profile assignment.

Even as Montgomery County State's Attorney Douglas F. Gansler announced he would seek the death penalty for suspect John Allen Muhammad, however, it was unclear whether the case would be eligible under Maryland's capital punishment laws.

That fueled speculation that Muhammad, 41, and Lee Boyd Malvo, 17, instead would be tried first in the federal courts or in Virginia, where death penalty laws are broader and used far more frequently. But Gansler said the defendants should first face a jury in the county where the most victims were killed.

"Montgomery County was the community most affected and most impacted by the sniper shootings," Gansler said. "Unfortunately, we suffered six of the 10 homicides in our community, and seven of the 10 homicide victims lived here."

Gansler's office issued arrest warrants last night charging Muhammad and Malvo with six counts of murder in the Oct. 2 death of James D. Martin, the Oct. 3 deaths of James L. "Sonny" Buchanan Jr., Prem Kumar Walekar, Sarah Ramos and Lori Ann Lewis-Rivera, and in the Oct. 22 death of county bus driver Conrad E. Johnson - the last victim in the rampage that also touched Virginia and the District of Columbia.

The warrants identified Muhammad as John Allen Williams of Tacoma, Wash., and Malvo as John Lee Malvo of Bellingham, Wash. Williams changed his name last year to Muhammad; Malvo has been identified on other documents as Lee Boyd Malvo.

Maryland prosecutors cannot seek the death penalty against Malvo because Maryland law - unlike in Virginia - prohibits death penalty prosecutions for defendants under 18. Gansler said the teen-ager, a Jamaican national who slipped illegally into the country last year, would be tried as an adult and could face life in prison without parole if convicted.

While Montgomery County officials moved ahead with their murder case, state prosecutors in Virginia also made plans to seek grand jury indictments in four counties there, and U.S. attorneys from the two states and the District of Columbia were reviewing options for a federal prosecution with Justice Department officials.

In Alabama, where Muhammad and Malvo are also suspects in a deadly Montgomery liquor store robbery Sept. 21, officials filed murder charges yesterday against the two men, saying they would seek the death penalty. That case is not considered part of the string of sniper attacks, but evidence from the crime scene helped lead authorities to Muhammad and Malvo.

The two were arrested early Thursday morning at a rest stop near Frederick. Investigators have said that a semiautomatic rifle found in their car has been linked to 11 of the 14 shootings - seven of those in Montgomery County, including the first and the last killings. In one of the shootings, no one was hurt.

One central question in the behind-the-scenes discussions over where to try the men has been where prosecutors would be most likely to win a death sentence, and Virginia Attorney General Jerry Kilgore made a blunt appeal: "I have no doubt that under Virginia law, we will be able to seek the death penalty for both suspects."

Virginia ranks second in the nation, behind Texas, in death penalty cases. The state has executed 86 convicted criminals since the death penalty was reinstated by the U.S. Supreme Court in 1976 - including five people in the past two years, according to the Death Penalty Information Center in Washington.

Maryland, which has a moratorium on executions, has put three people to death since 1976.

There are other potential problems with a death penalty trial in the sniper case.

To seek the death penalty, prosecutors must prove one of 10 "aggravating factors." The one factor that most closely fits this case allows prosecutors to seek the death penalty when multiple homicides result from the "same incident." But experienced prosecutors and legal experts said the sniper attacks in the state, coming at different times and locations, did not appear to fit that definition.

"The law seems to say that it has to be multiple murders, in one incident, and in this case you would have to say these six separate acts were somehow one incident," said Frederick County State's Attorney Scott L. Rolle, who lobbied unsuccessfully for an expansion of the state's death penalty laws in 1997. "I think that's a tough row to hoe."

Stephen Bailey, a deputy state's attorney in Baltimore County, said a prosecutor could argue that the shootings constituted a single incident. But he said because there is no state case law on the issue, the argument could carry risks on appeal. "The danger in doing that is the Court of Appeals in Maryland has always taken a very narrow view of interpreting criminal statutes, away from the state and to the defendant," Bailey said. That means the prosecutor and victims' families could go through long death penalty proceedings, only to see the sentence overturned.

Gansler said he is confident that his office is on solid ground. He said the five killings that occurred over a 16-hour period Oct. 2 and Oct. 3 could be considered the same incident, adding: "Certainly, the four that happened during a 2 1/2 -hour period [on Oct. 3] would be eligible. Because of the close proximity in time and geography that these murders happened, we hope ultimately that the jury will find, if the case was prosecuted here, that it is death penalty eligible."

In all, the string of sniper shootings crossed into seven jurisdictions. The governors of Maryland and Virginia and Washington Mayor Anthony Williams said they expect prosecutions in each location but said they would defer to prosecutors to determine which cases are tried first.

"This should not be about the competition between jurisdictions," Maryland Gov. Parris N. Glendening said. "It should be, 'OK, let's proceed in a cooperative effort because there will be trials in Maryland, in Virginia, possibly even in the District of Columbia and Alabama."

Glendening said the suspects, if convicted, "are obviously going to serve the ultimate penalty many times over."

Prosecutors elsewhere who have been involved in high-profile trials that touch multiple jurisdictions said there are no hard rules about who goes first - but they say there almost always is a battle for the honor.

"Whatever trial is first, and gets the worst punishment, that's the one that everyone is going to watch," said Jerry M. Blair, state attorney in Live Oak, Fla., who prosecuted serial killer Ted Bundy. "Whatever comes after it is just a second act."

Blair said prosecutors follow general guidelines, looking at where the crimes happened and where the suspect was arrested. But he said dryly, "Egos tend to - believe it or not - play a role as well."

Muhammad and Malvo are being held for now in U.S. custody. Muhammad was arrested on a federal firearms charge from Seattle, and Malvo was detained as a material witness in the sniper investigation. Authorities also issued yesterday a material witness warrant for Nathaniel Osbourne of Camden, N.J., a co-owner with Muhammad of the Chevrolet Caprice in which Muhammad and Malvo were arrested.

Muhammad and Malvo are being held at the Maryland Correctional Adjustment Center, also known as Supermax. Malvo was moved to the Baltimore facility Thursday after he attempted to climb out of a holding room at a juvenile facility in Montgomery County, law enforcement officials said. Guards monitoring the room by video camera saw Malvo try to climb through a ceiling tile but rushed into the room and pulled him down, the officials said.

Justice Department officials are also reviewing the case to determine whether they could bring a federal death penalty case, which would take precedence over local prosecution. As in Maryland, the federal death penalty does not apply to minors. There is no general federal murder statute, but using a firearm during any federal crime is a capital offense.

Law enforcement sources said that because a note was left in the Ashland, Va., shooting last week demanding $10 million, the author could face a federal extortion charge.

In Northern Virginia, U.S. Attorney Paul J. McNulty has not commented on the sniper attacks. Maryland U.S. Attorney Thomas M. DiBiagio also has declined to talk about the case - his office announced yesterday it would not return reporters' calls - but his office handled this week's preliminary appearances for Muhammad and Malvo in U.S. District Court in Baltimore.

DiBiagio and Gansler were scheduled to meet yesterday, but the meeting was canceled. Instead, Gansler met with other state-level prosecutors while DiBiagio conferred with federal authorities.

As Gansler announced plans to file murder charges - hours before the arrest warrants were finalized - he acknowledged that federal authorities still could step in but said his charging decision is prudent.

"In terms of whether [Justice Department officials] agree with what we're doing, they understand that Montgomery County has a local interest in prosecuting its murder cases," Gansler said. "These are murder cases that occurred here. We filed our charges, and I think they would understand it."

Sun staff writer Del Quentin Wilber contributed to this article.

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