Sniper Case Touched by Death Penalty Politics, Lawyers Say

Atty. Gen. John Ashcroft, who remained distant from the investigation of the sniper shootings during the rampage, seized control of the prosecution this week, raising questions among some lawyers about whether the politics of the death penalty had trumped the ordinary rules for handling murder cases.

On Friday, Montgomery County, Md., prosecutor Douglas F. Gansler filed six counts of murder against John Allen Muhammad, 41, and Lee Boyd Malvo, 17. He sought the death penalty against Muhammad, but Maryland law does not allow capital punishment for those under age 18.

“Montgomery County was the community most affected and most impacted by the sniper shootings,” Gansler said, because six of 10 slayings took place there.

But on Tuesday, Ashcroft, having returned from a trip to Asia, announced that federal prosecutors had filed separate charges in Maryland.

Moreover, his office said it would decide where the case would be prosecuted first, and liberal, Democratic-leaning Montgomery County was not the likely venue, his aides said.

When asked why the Justice Department had intervened, Ashcroft said, “It’s important that we have available the very most serious penalties in a setting like this. I believe that the ultimate sanction ought to be available here.”

The public squabble over who would try the sniper suspects broke out just hours after the pair were arrested -- in Maryland. Muhammad and Boyd were being questioned at a county jail in Rockville, Md., when federal authorities insisted they be transferred to federal custody in Baltimore. With the two in federal hands, the Justice Department says it can take charge of the prosecution.

Several former prosecutors and law professors called Ashcroft’s intervention heavy-handed.

“This is normally the kind of case the feds would want to turn over to the states, and Maryland has suffered the most,” said Beth Wilkinson, a former federal prosecutor who worked on the Oklahoma City bombing case.

In that case, U.S. authorities prosecuted Timothy J. McVeigh and Terry L. Nichols because eight federal law enforcement officers were killed.

Federal authorities also prosecuted Theodore Kaczynski, the Unabomber, for his 17-year series of mail bombings. Legal experts described that case as a classic federal crime -- sending bombs across the country via the U.S. mail.

The sniper shootings in Maryland, Virginia and Washington, D.C., resulted in 10 deaths, but murder, even crossing state lines to commit murder, is not itself a federal crime.

In Tuesday’s complaint, the Justice Department said it could prosecute the sniper suspects under the Hobbs Act, a 1946 measure intended as a weapon against Mafia bosses who used violence to squeeze money out of legitimate businesses.

“This is rather unusual use of the Hobbs Act,” Wilkinson said.

“It seems like a bit of a stretch,” agreed Kevin McNally, a defense lawyer in Frankfort, Ky., who specializes in federal death penalty cases.

The Justice Department also said it might prosecute the pair under federal firearms charges. Under this theory, Muhammad and Malvo could be charged with transporting a regulated firearm across state lines for the purpose of committing murder.

But Ashcroft stressed he had not decided how the case would be handled. Like Maryland law, federal law limits capital punishment to those 18 or older.

For that reason, some officials favor sending the case to one of the three Virginia counties where the sniper fired a lethal shot. Virginia also has a newly enacted anti-terrorism law that would simplify the prosecution of the pair.

Andrew McBride, a former assistant U.S. attorney in Virginia, said Virginia would give prosecutors the best chance for sending Muhammad to his death if convicted and their only chance of winning a death sentence against Malvo.

“You have a shorter and more secure route to the death penalty in Virginia,” McBride said. “Under Virginia law, you don’t have to prove which one was the triggerman, and that’s very useful to the prosecutor. Of course, if I were a defense lawyer, I would want the case to go to Maryland.”

During the Civil War, the Potomac River served as the dividing line between the North and South, and even today, Virginia and Maryland have rather different political cultures. Virginia is a Republican stronghold, and Maryland leans just as strongly in favor of Democrats.

Some in Maryland are surprised at the sudden turn of events in a case that had brought together the entire region.

“After all, the hard work was done by Montgomery County and Chief [Charles A.] Moose. They [Justice Department officials] stood back and let this proceed as a local matter. Then, after the arrest, the federal government steps in and takes charge,” said University of Maryland law professor Michael Greenberger, who served in the Clinton administration. “Common sense would tell you that after what Maryland went through, Maryland would have the strongest claim to prosecute. But Virginia is more conservative and Republican, and I have the sense Ashcroft may send the case there.”

Ashcroft has been a strong supporter of the death penalty and has clashed with those who have a different view.

As a senator from Missouri, Ashcroft persuaded his fellow Republicans to vote as a bloc to defeat Missouri Supreme Court Justice Ronnie White’s nomination by President Clinton for a federal judgeship. Ashcroft said the justice had voted to reverse some death sentences. However, White had upheld the death penalty in most of the cases that came before him.

In the sniper case, officials in all the jurisdictions agree that the death penalty is the appropriate punishment for the killer.

They disagree only on which jurisdiction should seek it first.

“Politics and division always seem to be involved when the death penalty is on the table,” said Richard Dieter, director of the Death Penalty Information Center.

“It makes for a very strange situation.”