WHEOEVER'S FIRST, THE SNIPERS WILL DIE

Where will John Muhammad and John Malvo be tried first? The killing spree apparently began in Montgomery, Alabama. Numerically, Maryland has six killings. Virginia works fast, unlike Maryland (which has a death penalty moratorium) it can try both suspects for murder, and it has no qualms about (and considerable experience with) meting out the death penalty. The District of Columbia lacks a death penalty for murder.

But makes no difference where the suspects are tried first. Eventually, both Muhammad and Malvo will be tried for murder in a death penalty jurisdiction, they will be convicted, they will be sentenced to death, and they will be executed.

Forget Maryland as the state that will decide the ultimate fate of the two defendants because of that state’s current death penalty moratorium, and Malvo’s juvenile status. Rule out the District of Columbia.

That leaves two jurisdictions (the federal courts aside, for the moment) in which murders were committed: Alabama and Virginia.

In Alabama, Muhammad and Malvo apparently stuck up a liquor store and murdered one employee. Anyone involved in the crime, even if he’s not the actual shooter, can be charged with felony murder. Since, under Alabama law, the 17-year-old Malvo has no immunity deriving from his juvenile status, both he and Muhammad are eligible for Alabama’s death penalty under the indictment already filed in that state.

The same is true in Virginia, where Muhammad and Malvo already have been indicted for capital murder. Virginia, too, has a felony murder law, making it irrelevant as to which of the two defendants pulled the trigger. Nor, under Virginia’s homicide laws, would Malvo get a Maryland-type pass because of his age.

No matter what other crimes – including murder – occurred in other jurisdictions, citizens of Alabama and Virginia were killed, giving these two states an unqualified right to try Muhammad and Malvo for murder. No matter what other jurisdictions do or when they do it or how many trials of the two suspects take place elsewhere based on whatever charges, both Alabama and Virginia are entitled to vindicate the rights of their citizens by trying Muhammad and Malvo for murder and ultimately imposing the death penalty -- and sooner or later, they will.

A wrinkle in this scenario arises from federal charges that have just been filed against Muhammad in the United States District Court for the District of Maryland. (Malvo, still considered to be a juvenile, was not charged – although he is referred to in the criminal complaint’s supporting affidavit as "John Doe, Juvenile.") The twenty counts against Muhammad – ranging from extortion to a conspiracy to commit offenses against the United States – include using a firearm during a criminal act that causes death. This charge carries the death penalty and in announcing the charges against Muhammad, Attorney General John Ashcraft, calling the sniper killings "an atrocity," told journalists: "I believe the ultimate sanction ought to be available here."

With all these jurisdictions filing all these indictments, what about constitutional prohibitions against double jeopardy? The Fifth Amendment provides that no "person [shall] be subject for the same offense to be twice put in jeopardy of life or limb." The Fourteenth Amendment’s due process clause has been construed to enjoin the same prohibition against the states. State constitutions contain the same prohibitions. However, none of the contemplated prosecutions of Muhammad and Malvo run afoul of either federal or state double jeopardy prohibitions. Each murder committed by them in a particular state, or the District of Columbia, is a crime only in that jurisdiction, and can be prosecuted only there. Muhammad and Malvo can be convicted of every murder that they committed wherever the killings occurred. They can also be convicted of the federal charge, even though the Maryland killings charged occurred in that state. (No federal charges have been brought for the Virginia killings, apparently because not all of the Commonwealth’s local jurisdictions have yet filed their own indictments.)

In the end, then, focusing only on the killings, the Muhammad/Malvo scenario comes down to this: There appears to be airtight evidence that the two committed murder in Alabama and Virginia. If that evidence holds up, both men will be convicted in those states. And, fittingly, both will die.