W By Ralph Vartabedian and Josh Meyer
ASHINGTON – A Maryland prosecutor charged John Allen Muhammad and his traveling companion, Lee Boyd Malvo, with six counts each of first-degree murder late Friday night, the first legal salvo in the sniper killing spree that flared across two states and the nation’s capital.
A spokesman for Douglas F. Gansler, the Montgomery County state’s attorney, confirmed that arrest warrants had been issued for Muhammad and Malvo, charging them in the six slayings that wracked the suburban county between Oct. 3 and last Tuesday.
Meanwhile, federal officials issued a warrant Friday for a third man sought for questioning in the purchase of a car used in the sniper attacks.
The move to charge the two sniper suspects Friday night came in a six-page document containing terse warrants listing the names of the sniper victims and accusing Muhammad and Malvo of “premeditated malice.” John P. McLane, the prosecutor’s spokesman, said a county District Court Commissioner had ordered that the statements of facts for both defendant “must remain sealed” until they were served with the charges.
The two defendants are being held in federal detention center in Baltimore, where they were taken after their arrest early Thursday at a rural Maryland rest area. Muhammad was arraigned in U.S. District Court on Thursday on a federal weapons charge. Malvo, held as a material witness, underwent a closed-door hearing normally accorded to juveniles.
Prosecutors and law enforcement officials in Maryland, Virginia and Alabama have all said they intend to indict the two suspects on murder charges, triggering a debate about which state could most quickly send them to the execution chamber.
The decision about who gets to prosecute first could end up in the lap of the Bush administration.
Political tempers are already flaring. Although Maryland sustained the heaviest death toll and much of the investigation was concentrated there, three slayings occurred in Virginia, which is widely recognized as one of the most successful states in obtaining death sentences.
Further complicating the decision is that some federal prosecutors are considering making the first prosecution in the case. Although murder by itself is not a federal crime, a prosecution could potentially be made under the Hobbs Act, which requires proof that the murders were based on an attempted extortion, prosecutors said.
A consensus has emerged quickly among officials from all the affected jurisdictions that the slayings warrant the death penalty. But Maryland and the federal government do not allow executions of minors; Virginia does. Malvo is 17.
Although all jurisdictions can ultimately prosecute the men on all of the charges, the most attention clearly will go to the first prosecutors.
With many questions about the crimes unanswered, Malvo and Muhammad are refusing to talk. Both were being interrogated extensively and separately as authorities tried to gain confessions that could significantly expedite their prosecutions.
“They are not cooperating,” one senior federal law enforcement official said. “They’re not talking. Neither of them. They’ve clammed up.”
Meanwhile, FBI director Robert S. Mueller III signed a material witness warrant Friday that seeks the arrest of Nathanel Osbourne, a Jamaican from Camden, N.J., who is the co-owner with Muhammad of the 1990 Chevrolet Caprice allegedly used in the shootings. Muhammad and Malvo spent time around the Camden neighborhood where Osbourne lived, witnesses told the FBI.
Such warrants are issued when authorities believe a person is likely to flee or otherwise be uncooperative in an investigation. While Osbourne is not a “subject” of the investigation, Mueller said, “it is believed that he can provide law enforcement officials with valuable information regarding this case.”
Why Osbourne helped Muhammad purchase and register the vehicle, a former police car in Bordentown Township, N.J., in mid-September is not known, according to Camden police. The vehicle allegedly was modified to allow someone to shoot victims with a rifle equipped with a scope out of an opening in the trunk, though FBI officials and other law enforcement authorities would not discuss those details. The modifications took place after the vehicle was sold by the township, according to Mayor Mark Roselli.
Although FBI officials said they did not believe anyone else had taken an active role in the shootings, they were not ready to rule that out.
“The case is still pending so we are not saying that the two we have are it or if others are involved,” an FBI official said. “There are still a lot of leads to be covered and loose ends to be tied up. We are still pursuing a lot of leads and right now we don’t know the extent of the involvement of others, if there are others.”
The warrant, which asks anyone with information about Osbourne to contact a local FBI office, describes him as a black male between 5-feet-4 and 5-feet-8 and 120 pounds, with black hair and brown eyes. It said he may be driving a 1992 Honda Accord, and that he has ties to Boston, Camden, Trenton, N.J., and Indiana.
The political dispute over jurisdiction in the case emerged when a joint agreement expected Friday about who would proceed to trial first never materialized.
Instead, Gansler held a news conference to announce Maryland would file indictments and assert that “we are able to present the best and most extensive evidence here in Montgomery County.”
That irked federal officials.
“Folks here were disappointed that Gansler moved forward because he had been asked to wait so we could continue this dialogue and move forward together,” a Justice Department official said. “We are trying to keep it from getting political. The death penalty is of much concern to us and their death penalty is extremely weak and it is not clear it would apply in this case.”
Since the U.S. Supreme Court permitted reinstatement of the death penalty in 1976, Virginia has executed more convicted murderers–86–than any state except Texas. Death penalty appeals also move considerably more rapidly than the national average, said Richard Dieter, director of the Death Penalty Information Center.
A convicted murderer in Virginia typically is executed three or four years sooner than a convicted murderer in other states. The Virginia Supreme Court rarely overturns death sentences. By contrast, Maryland has executed only three people in the modern death penalty era and currently has a statewide moratorium on executions.
Some legal experts, including Columbia, S.C., lawyer David Bruck, said one reason Virginia carries out more executions is the low caliber of lawyers handling such defendants. Virginia does not have a state public defender system; Maryland does.
Authorities in Montgomery, Ala., also jumped in Friday, saying at a news conference that they will file murder charges and will seek the death penalty. Montgomery police believe that both sniper suspects took part in a Sept. 21 liquor store shooting that left one employee dead and another seriously wounded.
Montgomery Police Chief John Wilson said Muhammad was believed to be the gunman, adding that a Montgomery police officer who chased the gunman had “positively” identified a photograph of Muhammad on Thursday.
Attorney General John Ashcroft has been kept abreast of the jurisdictional debate even though he is in Asia meeting with counterparts there in the war on terrorism, said the Justice Department official, who spoke on condition of anonymity. Ashcroft will get personally involved when he returns Sunday, the official said.
Meanwhile, new details emerged Friday about missed opportunities to apprehend the pair much earlier in the killing spree. One source of confusion for investigators and the public was the widely publicized focus on finding a white truck or van.
Police in the District of Columbia acknowledged that they had run a check on Muhammad’s Caprice when they spotted it Oct. 3, after the sniper had already killed five people in Montgomery County and just hours before Pascal Charlot, 72, was fatally shot in the chest on a D.C. street corner.
“Nothing came back on the tags,” District Police Sgt. Joe Gentile said.
A witness spotted a Caprice near the scene, its lights out while the car rolled. Police put out a lookout for “what was believed to be a burgundy-colored Caprice-type vehicle, possibly with tinted windows,” Gentile said. He said the lookout was never canceled.
“Obviously, there’s a strong possibility” that the witness saw the right car that night, he said. Yet in the days that followed, the police and public concentrated their efforts on finding a white van or box truck.
Soon after the Oct. 2-3 murder spree, police reported on TV that at least one witness had spotted a box truck with weathered white paint. Eventually, the white van was reported seen repeatedly at the crime scenes. When police set up roadblocks after shootings to catch a suspect, they concentrated on drivers of white vans.
(The Caprice was stopped “at least five times” at these roadblocks, according to a senior federal law enforcement official quoted by Newsday.)
“You’ve got to go with the best information you had,” said Fairfax County, Va., Police Chief Thomas Manger, noting that investigators kept telling the public not to limit their observations to white vehicles.
There was also surprise among some that the suspects did not match the prevailing profiles of the killer–probably a person from Montgomery County neighborhoods where the shooting spree began; perhaps an angry white male. Such presumptions were spouted on national TV by the growing industry of criminal consultants and profilers.
“The danger in making these assumptions–based on profiles–is that you divert resources toward things that are more likely statistically” but are dead ends in the particular case, said Barry Rosenfeld, a forensic psychologist at Fordham University in New York speaking about criminal inquiries in general.
Muhammad and Osbourne purchased the former undercover police car from Sure Shot Auto Sales in Trenton on Sept. 10, according to New Jersey Department of Motor Vehicles records. The two men registered it the next day at a Trenton DMV office, shortly before police evacuated the building because of a bomb scare.
Sure Shot acquired the vehicle for $230 at a public auction conducted by Bordentown Township on Oct. 6, 2001, according to Mayor Roselli. The car, which accumulated more than 150,000 miles during police duty, apparently went unsold for a year before the two men bought it for $250, according to DMV records. “I’m surprised the thing even ran,” Roselli said. “We usually drive these cars into the ground.”