They each been convicted once, but the Washington, D.C., sniper suspects now may be swapped between two northern Virginia jurisdictions, the Baltimore Sun reports. Fairfax County prosecutor Robert F. Horan Jr., who failed to obtain the death penalty for Lee Boyd Malvo this week, is recommending that Prince William prosecutor Paul B. Ebert, be next to try Malvo. Ebert would almost certainly seek a death penalty for Malvo, as he did for Muhammad. Ebert also would vigorously fight the insanity defense used by Malvo’s lawyers in the trial that just ended.
Lawyers have not been appointed to represent Malvo and Muhammad elsewhere in Virginia. Those who represented them in their first trials could be asked to continue. Steven Benjamin, president-elect of the Virginia Association of Criminal Defense Lawyers, said Malvo should hope that Craig Cooley represents him again: “The most important factor was the quality of Cooley’s representation. Only an attorney of Cooley’s insight, thoughtfulness and judgment would perceive what is not obvious to us – that this case had to be tried in order to save Lee Malvo’s life.”
Some say it could appear unseemly to keep trying the men, especially Malvo. “I think there is a real public relations problem for them if they keep trying Malvo for the sniper crimes, if they keep going back to the well until they find 12 jurors who vote for death,” said Scott Sundby, a Washington and Lee University law professor who specializes in death penalty juries.
Other states are standing by. Baton Rouge, La., prosecutors say they are ready to move ahead with capital murder trials in the Sept. 23, 2002, shooting death of a woman outside a shop there. Prosecutors there would have an advantage in that it is a “totally different” crime, not part of the Washington-area sniper siege, said former federal prosecutor Abraham Dash, now teaching at the University of Maryland School of Law.