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Judge Upholds Possibility of Execution

After his attorneys presented 13 different motions over six hours, Lee Boyd Malvo, who turned 18 on Feb. 18, watched and listened attentively to prosecutor Robert Horan Jr.

Horan was telling Circuit Court Judge Jane M. Roush the reasons why Malvo should remain eligible for execution.

"These arguments have been made — have continued to be made — for 26 years. They have been uniformly denied by the Supreme Court of Virginia. It is troublesome to me that in this case, the suggestion is made that … the Virginia Supreme Court in case after case just doesn't know any better," said Horan, after Michael Arif, one of Malvo's defense attorneys, presented his argument why Virginia's death penalty is unconstitutional and should be prohibited in Malvo's case.

"No matter how many times we say something wrong, the more we say it, doesn't make it right. That is why we make these arguments," said Arif, on Monday, March 3, during the first of several monthly motions hearings — preliminary stages in the upcoming Nov. 10 trial of sniper suspect Malvo.

THE DEATH PENALTY was reinstated in Virginia and the rest of the United States in 1976, eight years before the birth of Malvo. Malvo is the juvenile sniper suspect charged with the capital murder of Arlington resident Linda Franklin, 42, on Oct. 14, 2002 outside a Home Depot store.

Malvo was brought to Virginia because the law here would allow for his execution, even though he was a juvenile when the crimes were committed.

The defense is well-advised to challenge the constitutionality of the death penalty, said a George Mason University law professor.

"The death penalty law is still really young," said Joanmarie I. Davoli, law professor at George Mason University School of Law, in Arlington. Davoli, a former public defender, has represented defendants charged in capital murder cases, including the first one in which Horan was unsuccessful in seeking the death penalty.

"You want to cover all your bases because the law is constantly changing."

Judge Roush denied Arif's motion on Monday. "The issue has been decidedly made by the Virginia Supreme Court," Roush said.

ARGUING THE CONSTITUTIONALITY of such law is something a defense attorney must do in a capital murder case, said Davoli, a McLean native and graduate of Madison High School.

"These laws are still untested. So even if people have raised it, there may not be authority on it or the authority may have been a 5-4 split United States Supreme Court vote and it's worth revisiting because things have changed," said Davoli. "Maybe 50 years from now the laws will be more completely settled, but it's still not completely settled in these areas so even if they're routine motions that you've seen a hundred times they are worth arguing in your case."

Davoli cited a case last year in which the Supreme Court reversed a 1989 court ruling allowing the execution of a person with mental retardation.

"That's a motion that had been argued probably thousands of times," said Davoli. "There was good case law from 1989 saying it's OK."

Now, just a short time later, the Supreme Court has barred the execution of people with mental retardation.

IN HIS BRIEF, Arif argued that the death penalty fails to provide meaningful guidance to the jury.

"The two aggravating factors the jury must consider in determining whether to impose the death penalty, "vileness" and "future dangerousness," are unconstitutionally vague and do not provide the sentencer with meaningful instruction to avoid the arbitrary and capricious infliction of a death sentence," wrote Arif.

A convicted murderer is not eligible for the death penalty just because he committed murder, Davoli said. The prosecution must prove that the murder was especially vile, or that the defendant will be significantly dangerous in the future.

Virginia fails to require jury instruction to define these terms, said Arif. He said that Virginia also fails to properly inform and instruct the jury of consideration of mitigating evidence, which exposes a defendant to the "substantial risk that he will be killed without regard to evidence that calls for a lesser sentence."

NO CASE has been overturned for the reasons Arif claims the death penalty is unconstitutional, said Horan.

"The death penalty has stood the test of time," said Horan, after the hearing.

"In support of its motion the defense files a memorandum which can best be described as 68 pages of diatribe against the Supreme Court of Virginia. It cites surprisingly few Virginia cases and then only to tell us how wrong they are. This in spite of the fact that virtually all of the Virginia capital cases cited had certiorari denied in the United States Supreme Court," wrote Horan, in his response to Arif's motion. "Obviously the supposed constitutional flaws were not as visible to that Court."