MANASSAS, Va. - A Virginia judge refused yesterday to rule out the death penalty for sniper suspect John Allen Muhammad, rejecting the claims of defense lawyers that evidence shows Muhammad's teen-age partner pulled the trigger.
Prince William County Circuit Court Judge LeRoy F. Millette Jr. said that because no evidence has been presented in his courtroom regarding who shot Dean H. Meyers at a Manassas gas station on Oct. 9, it's too early to bar capital punishment.
"The bottom line ... is I do think it's premature," Millette said. "I simply don't think it's appropriate to dismiss the indictment [for capital murder] when I don't know what the evidence is going to be. There's not one word of evidence being brought to the court at this time."
Muhammad's lawyers argued that the younger sniper suspect, Lee Boyd Malvo, has admitted to authorities that he shot Meyers and that those statements have been presented as fact by prosecutors in Fairfax County, Va., where Malvo faces trial on Nov. 10.
Jonathan Shapiro, an attorney for Muhammad, said Virginia law only allows the person who was directly responsible for the crime to be put to death, and he said the state cannot have it both ways by seeking the death penalty for both suspects.
"This is an issue that will haunt this case," Shapiro said in court yesterday, adding that Fairfax prosecutors plan to present evidence that Malvo admitted to several killings - including that of Meyers - to bolster their case for capital punishment.
"We believe it is grossly improper, especially in a death case, to claim different things in different courts," Shapiro said. "We have a good grasp of the evidence here, and not a bit of it would rise to the level of principal [murder] in the first degree."
Prosecutors argued it was premature to make decisions based on evidence when none has been presented in court. The trial is scheduled to start Oct. 14.
They also argued that Muhammad, 42, and Malvo, 18, worked together closely in the string of 13 shootings - 10 of them fatal - that put the Washington area on edge last fall.
Exactly who is primarily responsible is a matter of interpretation best left to a jury, prosecutors said.
"What they did was they formed a killing team," said Assistant Commonwealth's Attorney Richard Conway. "It may have been cowardly, but it was effective. The defendant [Muhammad] was at least - at least - an equal partner in that team, and more likely, he was the team captain."
The judge ruled for the prosecution on 10 other motions during the 3 1/2 -hour hearing yesterday afternoon. Millette denied the defense's request to impose a broad gag order to keep lawyers and law enforcement officials involved in the case from talking to the news media. But he said he would allow a narrower order on what can and cannot be said if it is agreed upon by both sides in the case.
Millette turned down a defense motion to exclude victim impact statements from the trial, and he refused to bar the death penalty on grounds that it is unconstitutional or that the crime in question is not of such depravity to warrant it.
"With respect to depravity," said Assistant Commonwealth's Attorney James Willette, "for someone to conceal himself from a safe distance, to randomly select a victim for execution, to pull the trigger, to skulk away so as to be free to commit that crime again has to be the distilled essence of depravity."
Willette also argued the death penalty applies because of the money he said Muhammad and Malvo demanded for the killings to end. He said they gave authorities this message last fall: "Better get a good supply of body bags. You're going to need more body bags until the money is paid."
Muhammad appeared in court yesterday but did not speak.