MANASSAS, Va. -- A judge refused Thursday 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 attorneys said that 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 attorneys 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 that Muhammad fired the shot.
Prosecutors responded 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 attorneys differ about whether a defendant must be the triggerman to get the death penalty.
In other matters, Millette ruled that prosecutors can discuss Muhammad's case publicly, but police will be drastically restricted in what they can say. The ruling stopped short of the sweeping gag order sought by Muhammad's attorneys.
Millette also rejected a defense motion that the indictments should be dismissed because the court failed to ensure that the grand jurors who indicted Muhammad were persons "of honesty, intelligence and good demeanor," as required by Virginia law. The defense attorneys said it is impossible to meet such a standard. Similar arguments have been rejected in the past.
Malvo, 18, and Muhammad, 42, have been linked to 20 shootings, including 13 deaths, in Virginia, Maryland, Georgia, Alabama, Louisiana and Washington, D.C. Prosecutors have said the three-week shooting spree in October was part of a scheme to extort $10 million from the government.