Judge Declines to Drop Count in Sniper Case

A judge on Thursday refused to dismiss one of two death penalty counts against sniper suspect John Allen Muhammad, saying defense claims of a lack of evidence were premature.

Defense lawyers said Muhammad cannot receive death under one of the counts because fellow suspect Lee Boyd Malvo admitted firing the shot that killed a man outside a Manassas-area gas station Oct. 9.

Muhammad’s lawyers argued in court papers that only the triggerman can receive the death penalty under a law that allows the death penalty for multiple murders, and that prosecutors have no evidence Muhammad fired the shot.

Prosecutors said that it is irrelevant who pulled the trigger, and that Muhammad is eligible for the death penalty if they can prove he instigated the shooting.

The ruling by Circuit Judge LeRoy F. Millette Jr. does not address the merits of the prosecution’s case. During the trial, if the judge finds a lack of evidence for the death penalty, he could instruct the jury to reduce the charge to first-degree murder, which carries a maximum sentence of life in prison.

Muhammad faces the death penalty under two statutes. One is a new anti-terrorism law that explicitly allows for a death sentence even if the defendant never fired a weapon. But that law is untested and subject to a constitutional challenge. The other, which is the focus of defense efforts so far, allows for the death penalty in multiple murders. The law is generally considered constitutionally sound, but prosecutors and defense lawyers differ about whether a defendant must be the triggerman to get the death penalty.

Malvo, 18, and Muhammad, 42, have been linked to 20 shootings, including 13 deaths, in Virginia, Maryland, Georgia, Alabama, Louisiana and Washington, D.C.