Despite requests to delay the trial of teenage sniper suspect Lee Boyd Malvo, 18, jury selection will begin as scheduled on Nov. 10 in Chesapeake.
"This really is an unstoppable train at this point," said Judge Jane Marum Roush, Fairfax County Circuit Court.
Roush ruled against a request by Robert F. Horan Jr., Commonwealth's Attorney, to delay the beginning of the trial by one month. Horan said he needed time to allow his mental health expert, Dr. Evan Nelson, the necessary opportunity to fully evaluate Malvo.
"I do not make this motion lightly," Horan said, during the Oct. 23 hearing. "To find somebody to do this sort of work, you don't want somebody with nothing to do. You have to look for people who are active in the field."
IN THE 37 YEARS Horan has prosecuted cases in Fairfax County, he has never before asked to delay a trial.
"First one," Horan told Roush, adding that in his opinion, there is only one circumstance when an attorney should ask for a continuance: his own death.
Horan's request to delay the trial came a couple of weeks after Malvo's defense attorneys Michael S. Arif and Craig S. Cooley stated that Malvo was so dominated by Muhammad that he was not legally responsible for his actions.
On Oct. 9, Arif and Cooley gave Roush notice that they intend to argue that Malvo is not guilty be reason of insanity and that they have mental health experts who support this claim.
"I'll give them the benefit of the doubt, but they are sandbagging," Horan said, of the notification of their defense one month before the trial.
"That's inappropriate," Cooley responded. "We have made it very clear that indoctrination was a factor in this case."
Malvo's attorneys will argue that Malvo was "under the spell" of sniper co-defendant John Allen Muhammad, currently being prosecuted in Virginia Beach.
Horan said in order to successfully prosecute Malvo, he and his mental health expert will need extra time.
Horan argued last Thursday that the defense's mental health experts have examined Malvo the last 10 months.
"That tells me, we've got a complicated case here," Horan said. "They have to form a retrospective diagnosis — that sometime in the past, this was the defendant's mental state."
Although the trial will begin as scheduled, Roush said she will give Nelson extra time — if he needs it — to evaluate Malvo at an appropriate stopping point during the trial.
ROUSH TOLD MALVO during the hearing that he will need to cooperate with Dr. Nelson if Malvo wants his own mental health experts to testify in his trial.
"Yes, ma'am," Malvo replied.
Cooley said the defense is "prepared to go."
"We don't have any objection to Dr. Nelson spending as much time as he needs," Cooley said. "Lee will cooperate."
Malvo is accused of the Oct. 14, 2002 murder of Arlington resident Linda Franklin outside a Home Depot in Falls Church during sniper attacks that left 10 dead and three injured in the Washington metropolitan area.