The Feds Back Off

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

Holding all of the procedural and tactical cards, the Justice Department decided Thursday not to play them and to defer instead to Virginia, a state that offers a combination of swift justice and a broad capital sentencing scheme. It's a move that makes perfect sense from the government's perspective for so many reasons that the only real surprise is that it wasn't announced 10 days or so ago, promptly after John Allen Muhammad and John Lee Malvo first were arrested.

By bowing graciously to Virginia's state prosecutors, the Justice Department avoids the perception that it was big-footing all of the other jurisdictions involved.

Federal and state prosecutors knew from the start that what Muhammad and Malvo are accused of doing isn't at its essence the federal crime of extortion. They knew, instead, that the sniper shootings were simple state murders that just happened to be numerous and widespread enough to trigger multi-jurisdiction charges. By not making a federal case of the men now, the Justice Department has tacitly acknowledged that it cannot and should not always "go first" even where there is a lot of good publicity to be had from a high-profile trial.

Then there is the more practical issue of Virginia's death penalty statutes, which make it far more certain that both men will be sentenced to death if they are convicted of the crimes with which they have been charged. Under federal law, or under Maryland's death sentencing scheme, Malvo could not have been sentenced to death if convicted because was not 18 years old when his alleged crimes were committed. So, if you were forum-shopping as a prosecutor for the most ideal place to get the men not just convicted but given the system's ultimate punishment, Virginia or Alabama would be, by default, at the top of your list. And given the choice between those two states, Virginia was a shoo-in.

Remember, Virginia is where the feds raced to bring charges against Zacarias Moussaoui, the alleged terror conspirator, and John Walker Lindh, the American Taliban. This is no coincidence. Neither Moussaoui nor Lindh had anything to do with Virginia except that officials brought them there for trial. Why? Because Virginia juries are known to be no-nonsense bodies that aren't likely to embrace the sorts of arguments defense attorneys are sometimes forced to make in these sorts of cases. The law that will govern the men's trials may be slightly different than it would have been in federal court, but the jury pool remains essentially the same.

Meanwhile, prosecutors in Maryland shouldn't be surprised by the way Virginia has moved to the front of the line. The biggest part of the terror spree took place there, the investigation was based there, and the men were caught there, but Maryland's laws simply don't offer what the Justice Department and a great many people are buying these days; namely, a stacked deck against the suspects when it comes to sentencing. Not only is Maryland less enthusiastic about capital sentencing for juveniles than Virginia, it's operating under a moratorium on executions right now because of perceived disparities in capital sentencing in the state.

Thursday's shuffling of the deck means that once Virginia is finished with the men -- finished with their trials, I mean -- they may still be tried in federal court and then again in Maryland and in Alabama and wherever else, I suppose, prosecutors figure they can link a bullet to the rifle the government says the men used.

And it is also noteworthy that prosecutors themselves decided that the men should be tried separately and not together. Usually, prosecutors seek to combine defendants in a case like this so that they cannot successfully point fingers toward each other during trial. And even if prosecutors in Virginia had moved to try the men jointly their judge likely would have severed the case into two trials.

But still, it means something that Muhammad is off to Prince William County while his alleged cohort Malvo faces the music in Fairfax County. It means, primarily, that prosecutors feel strongly that their best cases against the men are in the venues where they will now be tried. There must be particularly good evidence against Muhammad relating to the murder of Dean Harold Meyers, shot at a gas station in Manassas on October 9th. And perhaps the evidence against Malvo in that killing is not as good.

Likewise, there must be strong evidence against Malvo relating to the murder in Falls Church of FBI analyst Linda Franklin. And the evidence against Muhammad may not be as strong in that case. I believed the prosecutors Thursday when they told reporters that the venue selections were "evidence driven."

The two men accused of so much destruction together now will truly take separate paths through the legal system, in many of its various forms.

by Andrew Cohen