Zachary Coile, Chronicle Washington Bureau Wednesday, October 30, 2002

Washington -- In a slap at Maryland, the Justice Department filed death penalty charges in the sniper shootings Tuesday, signaling that it won't let the case be tried in a state that isn't strong on capital punishment.

Attorney General John Ashcroft called the shootings that killed 10 people and wounded three "atrocities" and said they merited execution. His strong comments and the filing of federal charges demonstrated the government's intention to steer a case that typically would be handled by local authorities.

"There are already people who are saying that they don't think the ultimate penalties ought to be available, whether they're editorialists or others who don't believe in the death penalty," Ashcroft told reporters Tuesday. "I believe the ultimate sanction ought to be available here."

A senior federal law enforcement official confirmed Tuesday night that Maryland, with the largest number of victims and which filed the first charges in the case last week, will not handle the first trial. The official cited Maryland's track record in death penalty cases and its moratorium on executions.

"Maryland is out," said the official, who spoke on condition of anonymity.

Federal officials are deciding whether to try John Allen Muhammad, 41, and John Lee Malvo, 17, themselves or turn the suspects over to prosecutors in Virginia, which has executed more people than any state other than Texas.

Virginia law, unlike federal or Maryland law, allows capital punishment for those who committed crimes as minors -- a key issue because of Malvo's age. Virginia courts also are less likely than Maryland courts to overturn death sentences.

SUSPECTS IN FEDERAL CUSTODY

Justice Department officials have the right to determine where Muhammad and Malvo will be tried first because they have custody of the two suspects.

Federal prosecutors filed 20 firearms, extortion and interstate commerce charges against Muhammad in U.S. District Court in Greenbelt, Md. Malvo was not publicly charged because he is a juvenile. Ashcroft said he could not discuss the case against the 17-year-old unless a court certifies that he should be treated as an adult.

In the complaint, Muhammad was accused of using a firearm in crimes that led to the deaths of six people in Maryland and a seventh in Washington, counts that can carry a death sentence.

The government also accused Muhammad of violating the Hobbs Act, which forbids the use of extortion or threats of violence to interfere with interstate commerce -- another count that can bring the death penalty. He also was charged with interstate transportation in aid of racketeering and discharging a gun in a school zone.

Prosecutors did not include charges for any of the shootings that took place in Virginia because the state has a "double jeopardy" law that does not allow someone to be tried twice for the same crime. Legal experts said it was another sign the first trial may take place in Virginia.

The Justice Department's move to file charges came after a week of jockeying by prosecutors in different venues to get the first crack at the two suspects.

'POLITICAL ASPECT'

"There's no question there's a political aspect to this," said Paul Rothstein, a professor of law at Georgetown University Law Center. "There's going to be a lot of national press attention for whoever goes first, and the attention drops off with respect to later prosecutions. It can make or break someone who is ambitious."

Montgomery County State's Attorney Douglas Gansler, a Democrat who has said he'd like to run for Maryland attorney general someday, captured the headlines by being the first to file murder charges in the sniper case, angering Justice Department officials who asked him to wait for further discussions.

Virginia Attorney General Jerry Kilgore also lobbied to bring the suspects to his state, arguing in a letter to Ashcroft last week that the state "has tested and proven criminal statutes under which these murderers can be tried and sentenced to death."

Barry Pollack, a former assistant federal public defender in Maryland, said that in cases that involve multiple jurisdictions, prosecutors usually sit down and work out the best place to bring charges before making any announcements.

PROSECUTORIAL COMPETITION

"I've never seen anything like this," Pollack said. "The idea of there being public debate among various prosecutorial authorities, each touting their own office's reason to think that office is the office that ought to go first . . . it's highly unusual."

Gansler had argued that Montgomery County was the best place to prosecute the case first because seven of the 14 shootings took place there, while there was only one killing in each of three Virginia counties.

He also said that Maryland's moratorium on executions does not prevent prosecutors from seeking a death sentence. Any death sentences handed down during the moratorium would be carried out after the moratorium is lifted, he said. The moratorium is set to expire in the spring.

But federal officials were looking at the statistics: Since capital punishment was reinstated in 1976, Maryland has had three executions while Virginia has had 86.

Death penalty critics said Ashcroft's support for the death penalty in the sniper case goes against the Justice Department's usually deliberative process,

which allows defense attorneys to submit a report arguing against a death sentence before prosecutors proceed.

"This talk of punishment without the full range of information is inappropriate," said Richard Dieter, executive director of the Death Penalty Information Center in Washington.

"There are so many facts we don't know. So often mistakes are made in death penalty cases and information is withheld or improperly presented and it turns out not to be true because of the must-win mentality that the death penalty creates. There's a political dimension to these cases that's not just seeking the truth and allowing the criminal justice system to take its due course," Dieter said.

-- Anonymous, October 30, 2002