Lee Boyd Malvo's attorneys have challenged the constitutionality of the death penalty for juveniles.
Michael Arif and Craig Cooley, defense counsel for Malvo, will attempt to persuade Fairfax County Circuit Court Judge Jane Marum Roush on Monday, March 31 that the juvenile death penalty contradicts "evolving standards of decency." States are moving away from the execution of juvenile offenders, and Roush should declare the juvenile death penalty unconstitutional, Malvo's attorneys argue. Malvo, who is charged with the Oct. 14, 2002 murder of Linda Franklin, was 17 when the sniper attacks occurred. During the attacks, 10 people were killed and three others were injured in the Washington area.
"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.
There is no Eighth Amendment bar to capital punishment for juveniles, wrote Commonwealth's Attorney Robert Horan Jr. in his response.
Roush will hear arguments Monday regarding this and six other motions filed by the defense.
While Horan agrees that Malvo is entitled to a DNA expert, a ballistics expert and a fingerprint expert, he objects to the defense's request to pick its experts and to naming its experts to the court secretly. Malvo's attorneys also seek a voice/audio expert, a handwriting expert and a mitigation specialist.
Other motions concern when counsel will receive information about prospective jurors, whether victim impact statements and unadjudicated acts will be admissible during the sentencing phase if Malvo is convicted, and whether evidence of prison life and prison conditions can be introduced by the defense to rebut claims concerning the possible future danger of Malvo.
The only way to measure future dangerousness would be to introduce evidence of prison life since "the only society he will ever be a part of is the prison society," argue his attorneys.
Last month, Roush denied the defense's motion to declare the death penalty unconstitutional because it fails to provide meaningful guidance to the jury.