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Hearing the Impact on Victims

Malvo’s attorneys challenge execution of juveniles, victim impact statements.

William Franklin was standing next to his wife Linda Franklin, an Arlington resident, when a single bullet ripped through her head last Oct. 14.

No matter what, Franklin will testify during the trial of Lee Boyd Malvo, 18, who is charged with murdering Franklin’s wife. But attorneys for Malvo are trying to limit the opportunity for other family members to speak out during the trial, and subsequent sentencing hearings, if they were not present at the scene of the attacks.

Judge Jane Marum Roush will hear arguments Monday, March 31 on a defense motion to exclude testimony about the impact on the surviving family members of those killed in the attacks. The sniper attacks claimed the lives of 10 people and injured three others in the Washington area last October.

Testimony from family members could only serve to inflame jurors, attorneys Michael Arif and Craig Cooley wrote in their motion. “This testimony will divert the jury's attention from the relevant inquiry with a highly visceral appeal to the juror's emotions.”

THE MOTION would not affect statements from those who were witnesses to any of the shootings. Because he was present at the scene of the attack, William Franklin will be able to testify about what he witnessed the evening his wife was murdered outside a Home Depot in Falls Church.

If Malvo is convicted, Franklin will also be able describe during a sentencing hearing how his life has been permanently changed due to the emotional and psychological impact of his wife's murder.

Malvo and John Lee Muhammed are suspects in sniper attacks and other shootings that occurred in the states of Washington, Georgia and Louisiana as well.

THE JURY will already see and hear “a great amount of gruesome evidence," according to Raymond F. Morrogh, deputy commonwealth's attorney. When considered in the context of all the evidence, victim impact testimony will not be inflammatory, Morrogh said.

If Malvo is found guilty, it would be wrong for jurors only to hear testimony from witnesses for the defense during sentencing, Morrogh wrote.

"The Commonwealth simply requests that the Court allow the specific harm caused by this defendant to be explained to the jury through the testimony of survivors of these killings," wrote Morrogh.

A discussion of the pain and suffering incurred by survivors would be "brief and narrowly focused,” he wrote, “especially in comparison to the lengthy and wide ranging testimony permitted to the accused.”

JUDGE ROUSH will rule on this and six other motions on Monday, March 31 at the Circuit Court of Fairfax County.

* ON EXECUTING JUVENILES. Malvo's attorneys will attempt to persuade Judge Roush that the juvenile death penalty contradicts "evolving standards of decency." States are moving away from the execution of juvenile offenders, and, for this reason, Roush should declare the juvenile death penalty unconstitutional, Malvo’s attorneys argue. Malvo was 17 when the sniper attacks occurred.

"If Texas and Virginia are removed from the calculation, just five juvenile offenders have been executed in the United States since 1972," wrote Arif and Cooley.

Horan said there is no Eighth Amendment bar to capital punishment for juveniles.

* EXPERTS. Commonwealth's Attorney Robert Horan Jr. agrees that Malvo is entitled to a DNA expert, a ballistics expert and a fingerprint expert but objects to the defense's request to pick its experts and naming its experts to the Court secretly.

Malvo's attorneys also seek a voice/audio expert, a handwriting expert and a mitigation specialist to assist in the sentencing phase if Malvo is found guilty.

* JURORS. Arif and Cooley request that the Clerk of the Court provide them with a list of all potential juror members by August 1, 2003, along with each juror's information questionnaire. They say such information could allow them to determine if any prospective juror has a prejudice or bias and the attitudes each prospective juror has in regard to the death penalty.

"Who is going to instruct them on what they should or should not be doing in those 100 days? The legislature created a very small window (potentially 48 hours) for good reason," wrote Horan.

* PRISON LIFE. The only two possible sentences for a defendant convicted of capital murder are death and life imprisonment, without the possibility of parole.

If Malvo is convicted, his attorneys say the only way to measure future dangerousness would be to introduce evidence concerning prison life and conditions inside prisons since "the only society he will ever be a part of is the prison society."

"Clearly one 'would not' commit future criminal acts of violence where one's conditions of detention, movement, interaction with others, etc., is so stringently restricted as to make it so one 'could not' commit such acts," wrote Arif and Cooley.

"The Supreme Court has rejected evidence of prison life and conditions time after time," wrote Morrogh.

* OTHER MOTIONS. Other defense motions seek to bar the prosecution from using information about other crimes at sentencing if their client has not been convicted of those crimes. Another asks the judge to order the prosecution to spell out the particulars of charges against Malvo.