Malvo takes Fifth during hearing

Thursday, October 2, 2003

MANASSAS, Va. -- Lee Boyd Malvo took the Fifth Amendment on Wednesday at a hearing for John Allen Muhammad that brought the sniper suspects together for the first time since their arrests 11 months ago.

Malvo spent about five minutes on the witness stand and took the Fifth when he was asked about his relationship with Muhammad, who appeared to stare at Malvo throughout the questioning.

It was the first time Malvo and Muhammad had seen each other since their arrests.

Defense lawyers had objected to Malvo, 18, coming to court. They said he could have asserted his Fifth Amendment rights through a written affidavit.

Prince William County Commonwealth's Attorney Paul Ebert will now submit to the judge a list of questions he wants to ask Malvo. If they are deemed potentially incriminating, Malvo can again cite the Fifth Amendment guarantee against self-incrimination.

Circuit Judge LeRoy F. Millette Jr. will decide at an Oct. 7 hearing whether Malvo will be required to answer any of the questions.

Peter Greenspun, Muhammad's lawyer, said Malvo was called as a witness regarding a motion that is under court seal, and said he could not comment further.

Malvo attorney Craig Cooley said legal ethics do not allow prosecutors to put a witness in front of a jury if they have a strong expectation the witness will invoke his constitutional right to avoid self-incrimination.

Muhammad, 42, and Malvo have been charged with 13 shootings, including 10 killings, over a three-week span last October in the Washington area. They are also suspected or charged with shootings in Georgia, Alabama, Louisiana, Arizona and Washington state.

Muhammad's trial is scheduled to start Oct. 14; Malvo's begins Nov. 10.

Earlier Wednesday, prosecutors agreed to exclude some material from Muhammad's trial after the defense complained that he was questioned improperly by investigators in Maryland after his arrest.

Millette rejected the defense motion and said Muhammad's statements could be used at trial.

Millette also rejected a motion seeking to bar the death penalty on one of two capital-murder counts levied against Muhammad. Defense lawyers had argued that a terrorism law under which Muhammad is charged is written in such a manner that the maximum penalty should be life in prison.

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