Fancy Footwork In Sniper Case

John Lee Malvo and John Allen Muhammad, court, scales of justice,
Attorney Andrew Cohen analyzes legal issues for and CBS News.

John Allen Muhammad, the older of the two sniper suspects, has kept a lower profile than Lee Boyd Malvo since the two men were arrested last fall in Maryland. So far as we know, Muhammad hasn't tried to escape, hasn't doodled odd drawings that were then leaked to media, and certainly hasn't talked to Virginia law enforcement officials about what he did or did not do during the DC-area sniper spree.

For these reasons, among others, Prince William County's case against Muhammad seems significantly more ambiguous than does Fairfax County's case against Malvo.

If Malvo seems doomed to be convicted - doomed because of his own statements, if not by the evidence against him - Muhammad's lawyers seem to have at least a little to work with, both legally and factually. And that work begins in earnest Thursday with an argument that seems to suggest that Team Muhammad is perfectly willing and reasonably able to point a finger at Malvo as the fellow who ought to pay most for this crime spree.

Muhammad's attorneys are asking Circuit Court Judge LeRoy F. Millette, Jr. to dismiss the case against him, or at least bar prosecutors from seeking the death penalty, for a handful of reasons.

The most intriguing motion raises a question about whether the position prosecutors are taking against Muhammad in Prince William County is inconsistent with the information prosecutors in Fairfax County are receiving from Malvo, who's due back in court in Fairfax on Monday.

The Commonwealth wants to convict and execute Muhammad for killing Dean Harold Meyers last October 9th. But Commonwealth attorneys working the Malvo case have reason to believe that it was Malvo, not Muhammad, who killed Myers.

Muhammad's attorneys argue that Prince William County cannot go forward with a case that paints Muhammad as Meyers' murderer if they have reason to believe from their Fairfax counterparts that the theory isn't true. And the defense says that if Muhammad was not the triggerman in the Meyers shooting, he cannot be sentenced to death under Virginia law.

Muhammad's attorneys say "...there is no way for the Commonwealth of Virginia to take the position in Malvo's case, as they surely will do, based on his statements, that he was the sole shooter in the Meyers case, yet seek the death penalty for Muhammad, which must of necessity rest on proof that he, not Malvo, was the shooter. Whether or not the Commonwealth can prove that both men were involved in the murder is beside the point. A death sentence may only be imposed on the one man who fired the shot."

Prosecutors in the Muhammad case say it is too soon for the defense to make this argument, that the Commonwealth "has neither adopted nor advanced any position on the identity of the person who fired the shot which killed Mr. Meyers," and that Prince William County cannot be held accountable either for what Fairfax County thinks about Malvo's involvement in the Meyers shooting or for what media reports say about it.

Prince William County prosecutors also cited a case for Judge Millette Jr. that suggests that two different prosecutors can say that two different defendants were triggermen in two different trials without creating a factual inconsistency.

Prosecutors also contend that Virginia law doesn't limit capital punishment only to triggermen in a murder. In court papers, they argue that "the Virginia Supreme Court clearly has established that it is the level or degree of participation in the murder and not the method of killing that determines whether a particular actor is subject to the death penalty."

It's a dispute that recalls the story of the King brothers, Alex and Derek, who were tried in Florida last year for killing their father. As prosecutors in the Kings' case argued that the boys were responsible for the death of their father, prosecutors in a different case - but at the same time - argued that an adult friend of the King brothers, Ricky Chavis, was responsible for the death of Terry King.

Jurors in the Kings' case expressed outrage that prosecutors had pulled a fast one on them in this fashion and the Kings' judge ultimately threw out their convictions for a number of reasons.

Is the Muhammad trial shaping up to look like the King brothers trial? Will Judge Millette Jr. permit Prince William County prosecutors to look Muhammad's jurors in the eyes and tell them that he shot Meyers if Prince William County has reason to believe that Malvo confessed to shooting Meyers?

Muhammad's trial (October 14) is scheduled to begin before Malvo's trial (November 10). Will the timing of the two trials play into how this dispute plays out? Already you can see that the Muhammad case is far more intricate for the government than is the Malvo case.

By Andrew Cohen