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Who Gets To Prosecute the Sniper Suspects First?

By Brandt GoldsteinPosted Tuesday, Oct. 29, 2002, at 2:38 PM ET

Prosecutors for Maryland, Virginia, and the federal government all want to try John Muhammad and John Malvo, the sniper suspects, for killings in the D.C. area. Alabama prosecutors have filed murder charges against the two men for an earlier shooting. And the state of Washington wants them for a homicide in Tacoma. Who decides which prosecution will go first?

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There is no law governing the issue, but in this case federal officials will dictate the order of prosecution, largely because they enjoy two sources of leverage over their state colleagues.

First, the suspects are currently in federal custody in Baltimore—Muhammad on an unrelated weapons charge, Malvo as a material witness. In prosecution battles, possession is nine-tenths of the law. A prosecutor has no duty to hand over a suspect in custody for another jurisdiction to prosecute first. And while murder itself is strictly a state crime, Muhammad and Malvo can be charged with federal offenses. The Hobbs Act, for instance, makes it a federal crime to kill someone while demanding $10 million in interstate extortion.

Moreover, under the Constitution's Supremacy Clause, federal statutes have supremacy over state law. So, even if state officials had the suspects in custody, federal prosecutors could demand that they turn them over for prosecution under federal law first—a demand one state cannot make of another.

What will Justice officials decide? Two options seem most likely.

Attorney General John Ashcroft could hand the case to the U.S. attorney in Maryland or Virginia for a federal prosecution. MSNBC reports Tuesday that federal charges will be filed in Maryland, but that doesn't necessarily mean the federal case will go forward first. Ashcroft may want the death penalty for Malvo, who is reportedly 17 years old, and there's no federal death penalty for minors.

So, as an alternative, the feds may authorize Virginia state prosecutors to proceed first. Virginia allows the execution of minors and its appellate courts have a strong record of upholding death penalty convictions. And Virginia is second in the nation in executions per year, behind only Texas.

Unfortunately for Malvo, he wouldn't be able to claim double jeopardy because the federal government and the states are all considered separate sovereigns.

Next question?

Explainer thanks Robert Weisberg at Stanford Law School and Solomon Wisenberg at Ross, Dixon & Bell.

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Brandt Goldstein is the author of Storming the Court (Scribner 2005), the story of Yale law students and human rights lawyers who shut down the first Guantanamo detention camp.

COMMENTS

Remarks From The Fray:

Ross Perot used to talk about the crazy aunt hiding up in the attic. No one wanted to admit she existed or talk about her. In this case the crazy aunt is the unseemly rush that is going on to prosecute the snipers so that someone can be first to execute them. We may see a bizarre situation several years down the road when the snipers, already sentenced to death are transported to another state to face a murder trial so that a second death sentence can be obtained. If this sounds far fetched I suggest you take a look at what is happening in the State of Oklahoma. Presently the state is preparing to spend millions of dollars so they can execute the second Oklahoma City bomber who was only sentenced to life imprisonment in Federal Court. I wonder how that money might be better spent on helping the victims of that crime. Is it that important to execute a man who was tried for the offense and had his guilt and ultimately his sentence determined by a jury?

-- H.L. Mencken

(To reply, click here.)

So far, so good, but Explainer doesn't say what happens next. In other words, assuming a conviction in, say, Maryland, do trials then proceed in the other 4 jurisdictions (Virginia, Alabama, the District of Columbia and Washington)? Such a succession of trials could conceivably last for quite a long time. In the case of a convict sentenced to imprisonment this might not matter, but it seems excessive to defer the execution of a convicted murderer until his role in every one of the crimes he has ever been accused of is ascertained.

-- Zathras

(To reply, click here.)

(10/30)

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