Who pulled the trigger?

It's still not clear, but initial sniper trials laid key groundwork

Richmond Times-Dispatch/December 28, 2003
By Paul Bradley

Chesapeake -- Two trials, 10 weeks of testimony and hundreds of witnesses and exhibits have not clearly established who fired the shots that cut down 13 people, killing 10, during last year's sniper-shooting rampage.

But with more capital-murder prosecutions likely, future trials will be following a detailed out- line established by veteran prosecutors Paul B. Ebert of Prince William County and Robert F. Horan Jr. of Fairfax during the first two sniper trials.

By defining the roles John Allen Muhammad and Lee Boyd Malvo played in the murderous plot, Ebert and Horan have laid the groundwork for more prosecutors who want a crack at the pair.

The 42-year-old Muhammad emerged as the criminal mastermind, planning and coordinating the attacks, selecting the locations of the assaults - his motives a bizarre mix of personal retribution against an ex-wife and a seething racial hatred.

The 18-year-old Malvo was Muhammad's protege, accepting the teachings of the older man, succumbing to the rigorous training needed to carry out the plot and sharing the risks of executing the attacks.

Muhammad gave the orders. Malvo followed them. Together, driving around the country in a battered 1990 Chevrolet Caprice that once was a police car, they singled out people doing everyday tasks, cutting them down with shots from a high-powered rifle.

Ebert and Horan are likely to be the first beneficiaries of their respective work. Ebert, who prosecuted Muhammad, wants to put Malvo on trial in Prince William. Horan is preparing to try Muhammad in Fairfax. Both would again be subject to the death penalty.

But other localities want to try them, too. Malvo and Muhammad have been linked to 20 shootings in all, in Virginia, Maryland, Georgia, Alabama, Louisiana and Washington, D.C.

In Alabama and Louisiana, prosecutors intend to seek the death penalty against the pair, trying to impose on Malvo the sanction he avoided in Virginia. Both men are charged with capital murder in Baton Rouge in the September 2002 killing of Hong Im Ballenger, who was shot in the head as she left work at the beauty-supply house she managed. In Alabama, Muhammad and Malvo are charged with capital murder in a September 2002 shooting outside a Montgomery liquor store. The manager, Claudine Parker, was killed and a co-worker was seriously wounded.

Muhammad and Malvo could also face the death penalty in the third fatal shooting in Virginia, in Spotsylvania County.

But Malvo cannot be sentenced to death in the six fatal shootings in Maryland because he was 17, a minor, at the time. Additionally, Maryland currently has a moratorium on executions.

The District of Columbia, where the snipers killed one man, has no death penalty.

The roles of Muhammad and Malvo have come into much sharper focus since Muhammad's trial got under way in Virginia Beach on Oct. 14.

Muhammad was convicted last month of capital murder in the killing of Dean H. Meyers outside a gas station in Manassas on Oct. 14, 2002. The jury recommended he get the death penalty.

Malvo was convicted of capital murder in the shooting death of Linda Franklin outside a Home Depot store near Falls Church on Oct. 9, 2002. The Chesapeake jury recommended he serve a life-prison term without the possibility of parole.

Where the pair will stand trial next is up to Gov. Mark R. Warner. His office has said he will decide by Feb. 12, the date of Muhammad's formal sentencing.

Warner's decision was complicated by the Chesapeake jury's decision not to impose the death penalty on Malvo. But no matter where the next prosecution comes, the task of future prosecutors has been greatly simplified by the first trials.

When Muhammad's trial got under way in Virginia Beach, prosecutors were preparing to use a new, untested anti-terrorism law, and seemed to be pursuing different theories of the very same crimes. Ebert appeared to be contending that Muhammad fired most of the fatal shots, while Horan said it was Malvo.

In the end, each prosecutor portrayed a deadly sniper team.

Lacking firm evidence about who shot Meyers, Ebert instead asserted the identity of the triggerman was irrelevant. Each member of the team was as vital as the other and equally responsible for all the sniper shootings, he argued. He convinced the jury that a murder defendant need not pull the trigger in a deadly shooting to receive the death penalty.

Horan made no such argument. He asserted that Malvo shot Franklin from the trunk of the Caprice while Muhammad was at the wheel. He, too, stressed they were a team. One acted as spotter, one as a shooter, each as essential as the other, to pull off the attacks and escape detection.

Despite failing to provide a definitive answer on who did the shootings, Malvo's trial did yield a glimpse into the snipers' motives. Malvo told mental-health experts that the pair planned to extort $10 million from the government and use the money to build a utopian compound in Canada. There, Muhammad would mold 140 black children into a society free from racial prejudice. From his Fairfax County jail cell, Malvo sketched drawings of the fanciful utopia.

But Malvo's attorneys argued that the notion of a utopia was a ruse, planted in Malvo's mind to provide a justification for murder. Muhammad's true motive, they said, was to use the shootings as a cover to kill his ex-wife and regain custody of his three youngest children, lost in a custody fight. Malvo was to be Muhammad's final victim, eliminating the only witness to the crimes, Malvo's lawyers said.

For all the lingering uncertainty in the wake of the trials, they did reveal rich details about the two men who terrorized a region for three weeks in October 2002.

Jurors heard about Malvo's nomadic, rootless life in Jamaica, where he was born. They learned of how he and his mother moved to Antigua, where Malvo met Muhammad in a video arcade. Witnesses testified about Muhammad's lucrative business forging immigration documents, until his arrest forced him to flee back to the United States, Malvo in tow. The found out about their stay in a homeless shelter in Bellingham, Wash., where Muhammad purportedly began schooling his young charge.

Jurors saw Malvo's former teachers and Muhammad's Army buddies. They met Mavlo's schoolmates and Muhammad's ex-wives and children. Jurors learned how sniper teams use a spotter and shooter and speak in their own peculiar venacular. Months of shooting practice and survival training preceded the attacks, they were told.

The trials also detailed the awful mechanics of the shootings, including a series of robberies to finance the mission. They saw the car Muhammad bought for $250 from a Trenton, N.J., dealer and later modified into a mobile sniper's platform. They learned of the tools of snipercraft seized from the car when the killers were arrested, including a Bushmaster .223-caliber rifle, a computer and a global-positioning system.

In addition to the physical evidence, the government had Malvo's own words that he had fired several fatal shots. The teenager's confessions to Fairfax County investigators, which he later recanted, were taped and played for Malvo's jury.

Prince William prosecutors could not use Malvo's confessions against Muhammad because they were inadmissible hearsay. They decided instead to stress that the two acted as a team and bore equal responsibility for the killings.

Future prosecutions are likely to be staked on the same claim. Prince William prosecutors plan to argue that Malvo was a willing participant and knew what he was doing was criminal. Assistant Commonwealth's Attorney Richard Conway attended several days of Malvo's trial taking detailed notes, preparing to rebut the insanity claim likely to be mounted by his lawyers.

But Craig S. Cooley, one of Malvo's attorneys, said the teenager's insanity defense - ultimately rejected by his jury - was real.

"This was an honest defense," said Cooley, who added he is unsure whether he would be involved in future trials. "It is the reality of what happened to Lee."

In upcoming trials, the defense likely will claim the same thing, he said.