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Sniper Legal Tug-Of-War

Attorney Andrew Cohen analyzes legal issues for CBS News and

What's more important in the scheme of things? Making sure John Allen Muhammad and John Lee Malvo are executed as quickly as possible? Or making sure they are tried first in a jurisdiction where such a trial would be legally and factually sensible -- where they would be ensured a fair trial?

Even amid the furor over what the sniper suspects allegedly did, the answer ought to be clear. But prosecutors all over the D.C. area have practically fallen over themselves since late last week in a race to get credit for being part of the jurisdiction that puts the men on trial and executes them -- first.

Indeed, there have been two unseemly and disturbing developments on the legal front since Muhammad and Malvo were arrested early Thursday morning. The first occurred when law enforcement officials on Friday leaked to the media the letter the sniper suspects left at the scene of one of their alleged shootings.

There is no viable law enforcement reason for the leak -- the men are in custody and if they wrote the letter they know it. And it also is clear that the note has great evidentiary value if and when the men are put on trial.

So it is reasonable to assume the leak was made intentionally in order to further whip up popular sentiment against the men before they get a judge who would preclude such improper pre-trial disclosures. Prosecutors have enough going for them now in this case without resorting to such tactics. It's unfortunate that the law enforcement community felt it would be appropriate to taint the potential jury pool in this fashion.

The second unseemly development is the intensifying tug of war over which jurisdiction ought to have the pyrrhic privilege of prosecuting and executing the two men first. Every jurisdiction can file their own charges. Indeed, they are, one after the other. But it's bringing the men to trial first that's the rub.

Early Friday morning, Alabama officials tugged on the rope first, telling the world on cable television that they wanted Muhammad and Malvo to come back down South pronto for a capital murder trial based upon a felony-murder officials say the men committed there on Sept. 21. There's a fat chance of that happening anytime soon, since the two men now reside in custody in Maryland.

And it is unclear whether Virginia and Maryland even have decided among themselves which local jurisdiction ought to have first dibs. Maryland has the best factual claim to that dubious honor -- more victims were killed there than in the rest of the jurisdictions combined.

But Virginia claims that it ought to go first, since it can bring capital murder charges against both men, including the juvenile Malvo, in front of jurors who tend to embrace the death penalty as a sentencing option. And complicating that already dense scenario is the fact that there are prosecutors in several local jurisdictions within those two states who are jockeying to get Muhammad and Malvo into court first.

And then there are the feds. Montgomery County prosecutor Douglas Gansler had no sooner announced Friday that he would be filing six murder charges against the men in Maryland when federal officials, speaking off the record of course, told a few reporters that they weren't happy that Maryland was so aggressively pushing itself into first place in the race to the courthouse.

You can understand why the Justice Department -- the big dog of the criminal justice system -- would want to "big foot" local prosecutors in a case generating national concern and interest. It's what the feds do all the time, usually because they are better equipped to handle complex criminal cases and because federal judges usually are better qualified to ensure fair justice in austere federal courtrooms.

But that's when there is a strong federal interest in the crime. The sniper spree case simply doesn't have such an interest. There was only one murder of a federal employee -- FBI analyst Linda Franklin -- and she was not performing her job at the time. The rest of the shootings were -- forgive me for saying so -- garden-variety state murders which state and local prosecutors have been handling for several hundred years.

It's bad enough, then, that the feds are trying so overtly to muscle their way to the front of the line ahead of the local jurisdictions. But their motivation for doing so makes it even worse.

There has been no talk -- I haven't heard any, anyway -- of the feds telling the states involved that the men should be tried first in federal court in order to ensure they receive the fairest trial possible by the most impartial arbiters (life-tenured federal judges) our legal system has.

If that were the case, the Justice Department would have a far stronger moral case for going first. But instead of rising above the local fury over the sniper shootings, instead of acting like a mature adult in a roomful of angry children, instead of grabbing hold of jurisdiction for a noble purpose, even the feds are saying that they want to make sure that these men are executed, no matter what.

A Justice Department official told the New York Times Friday, under the cloak of anonymity, that "our overriding concern in evaluating this is the consideration of the death penalty."

The official made the statement in the context of explaining why it may not be such a good idea, in the Justice Department's opinion anyway, for Maryland to go first. Maryland cannot execute Malvo and since it isn't nearly as hardcore a death penalty state as Virginia or Alabama.

But clearly the Justice Department's legal contortions to make the sniper case a federal death penalty case show that Muhammad and Malvo can expect no more coolheadedness and rationality from the feds than they can from local prosecutors.

Maryland or Virginia should prosecute the cases first but neither jurisdiction shows any sign of being interested in ensuring that the men receive a truly fair trial as opposed to a swift one leading to the death penalty.

And the jurisdiction that typically performs that vital function -- the federal system -- already is on the record as saying it wants the men executed and will string together whatever federal charges are necessary in order to do so.

So the upshot is that these men will be tried over and over again until they are both sentenced to death, somewhere, for the crimes they allegedly have committed. Nothing less will satisfy a great many people, regardless of how such a traveling circus of trials would comport with constitutional guarantees afforded to capital defendants.

Maybe two capital sentences will be a just result for Muhammad and Malvo, given the seriousness of the crimes they allegedly committed and the region-wide terror they purportedly spawned in doing so.

But it is hardly the way the criminal justice phase of the story ought to begin. They deserve a trial -- a real one -- as well as the presumption of innocence.

And what the rival jurisdictions ought to be talking about, instead of simply which gleefully gets to excecute the men first, is where the most thorough, complete, and fair trial can be held -- a trial that can be held up as a symbol to the rest of the nation that even the most emotional crimes can result in the most objective legal process.

The Oklahoma City bombing trials accomplished that. The O.J. Simpson murder trial did not. The way things are going, Muhammad and Malvo will be the Sacco and Vanzetti of the 21st Century.

By Andrew Cohen

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