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State Turf Battle over Snipers is Immaterial By: Henry Mark Holzer
FrontPageMagazine.com | Thursday, October 31, 2002


Seeking to fill time on their 24-hour all-news shows, the cable networks have been highlighting an unseemly squabble between prosecutors about which jurisdiction will have first dibs at trying John Muhammad and John Malvo. Arguments abound.

The killing spree apparently began in Montgomery, Alabama, grist for the mayor’s contention that his state should prosecute first.

Numerically speaking, the State of Maryland (where the task force was headquartered) is in the lead – six killings – affording a politically ambitious prosecutor some justification for beating other jurisdictions to early indictments. The State Attorney is seemingly undisturbed by the fact that, under Maryland law, Malvo, a juvenile, would avoid the death penalty.

The Virginia Attorney General claims his state trumps the other jurisdictions on three grounds: Virginia works fast, it can try both suspects for murder, and it has no qualms about (and considerable experience with) meting out the death penalty.

There hasn’t been much talk about the District of Columbia as a possible trial venue, largely because it lacks a death penalty for murder.

This turf battle is pointless and unnecessary. It makes no difference where the suspects are tried first because, eventually, both Muhammad and Malvo will be tried for murder in a death penalty jurisdiction, they will be convicted, they will be sentenced to death, and they will be executed.

Put aside all the other crimes Muhammad and Malvo may have committed – assault with intent to kill, conspiracy, extortion, smuggling, weapons violations, armed robbery, and more – and focus only on capital murder. That is the crime for which Muhammad and Malvo will die. (As we’ll see below, at least Muhmmad, and possibly Malvo, depending on his actual age, could also receive the death penalty under the federal charges that have just been filed.)

Discount Maryland as the state that will decide the ultimate fate of the two defendants because of that state’s current death penalty moratorium, as well as Malvo’s juvenile status which, under Maryland law, would make him ineligible for the death penalty.

Rule out the District of Columbia, which has no death penalty.

That leaves two jurisdictions (the federal courts aside, for the moment) in which murders were committed: Alabama and Virginia.

In Alabama, Muhammad and Malvo (and perhaps someone else) apparently stuck up a liquor store and murdered one employee. Anyone involved in the crime, even if he’s not the actual shooter, can be charged with felony murder. Since, under Alabama law, the 17-year-old Malvo has no immunity deriving from his juvenile status, both he and Muhammad are eligible for Alabama’s death penalty under the indictment already filed in that state.

The same is true in Virginia, where Muhammad and Malvo already have been indicted for capital murder. Virginia, too, has a felony murder law, making it irrelevant as to which of the two defendants pulled the trigger. Nor, under Virginia’s homicide laws, would Malvo get a Maryland-type pass because of his age.

No matter what other crimes – including murder – occurred in other jurisdictions, citizens of Alabama and Virginia were killed, giving these two states an unqualified right to try Muhammad and Malvo for murder. No matter what other jurisdictions do or when they do it or how many trials of the two suspects take place elsewhere based on whatever charges, both Alabama and Virginia are entitled to vindicate the rights of their citizens by trying Muhammad and Malvo for murder and ultimately imposing the death penalty -- and sooner or later, they will.

A wrinkle in this scenario arises from federal charges that have just been filed against Muhammad in the United States District Court for the District of Maryland. (Malvo, still considered to be a juvenile, was not charged – although he is referred to in the criminal complaint’s supporting affidavit as "John Doe, Juvenile.") The twenty counts against Muhammad – ranging from extortion to a conspiracy to commit offenses against the United States – include using a firearm during a criminal act that causes death. This charge carries the death penalty and in announcing the charges against Muhammad, Attorney General John Ashcraft, calling the sniper killings "an atrocity," told journalists: "I believe the ultimate sanction ought to be available here."

With all these jurisdictions filing all these indictments, the question has been raised as to whether multiple prosecutions of Muhammad and Malvo somehow violate constitutional prohibitions against double jeopardy. The Fifth Amendment to the United States Constitution provides that no "person [shall] be subject for the same offense to be twice put in jeopardy of life or limb." The Due Process Clause of the Fourteenth Amendment has been construed to enjoin the same prohibition against the states. Equally, state constitutions contain the same prohibitions. These provisions notwithstanding, none of the contemplated prosecutions of Muhammad and Malvo run afoul of either state or federal double jeopardy prohibitions. Each murder committed by them in a particular state, or the District of Columbia, is a crime only in that jurisdiction, and can be prosecuted only there. Muhammad and Malvo can be convicted of every murder that they committed wherever the killings occurred. They can also be convicted of the federal charge, even though the Maryland killings charged so far occurred in that state. (No federal charges have been brought for the Virginia killings, apparently because not all of the Commonwealth’s local jurisdictions have yet filed their own indictments.)

The confusion over double jeopardy arises only when the federal government is involved. A common example is the armed robbery of a bank. If Muhammad and Malvo had stuck up a bank in Virginia, they would have committed a crime under the laws of that Commonwealth. If the bank were federally insured, they would also have committed a crime under federal law. Does this mean they could be indicted and tried in both a state and a federal court? Yes, according to the Supreme Court of the United States.

But what about our Constitutional proscription against being tried twice "for the same offense"? While a state and a federal prosecution for the bank robbery would arise from the same facts, it would not be for the same offense. It would be for two offenses – one state, one federal. For Muhammad and Malvo, this means that, even if the United States Attorney brought an indictment against the two for the murder of the FBI employee, they could also be tried for murder in Virginia, where the killing occurred.

In the end, then, focusing only on the killings, the Muhammad/Malvo scenario comes down to this: There appears to be airtight evidence that the two committed murder in Alabama and Virginia. If that evidence holds up, both men will be convicted. And, fittingly, both will die.


Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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