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Monday, November 17, 2003  

Law: But is it terrorism?

I have no reservations about the prosecution of Washington, D.C.-area sniper suspects John Muhammad and Lee Malvo in general. There is compelling evidence they committed the murders they are charged with. But, one aspect of the case does perturb me: They are being prosecuted for terrorism under a Virginia law passed after the 9/11 attacks.

The slayings were part of a string of shootings that killed 10 people over a three-week period in October 2002 in the Washington metropolitan area. Prosecutors said the spree was an attempt to extort $10 million from the government.

Both men are charged with two counts of capital murder, one accusing them of taking part in multiple murders, the other alleging the killings were designed to terrorize the population.

Muhammad was convicted Monday.

VIRGINIA BEACH, Virginia (CNN) -- A jury on Monday found John Allen Muhammad guilty of capital murder and three other charges related to a slaying during last year's sniper shooting spree.

The seven-woman, five-man jury also found the Army veteran guilty of committing a murder in an act of terrorism, conspiracy and use of a firearm in the commission of a felony. The jury announced its verdict after six hours of deliberations.

The capital murder and terrorism charges carry the death penalty as a possible sentence.

. . .The terrorism charge required the prosecution to show that he was responsible for a murder aimed at intimidating the public or influencing the government.

I don't believe the terrorism law was intended for use in prosecuting this kind of serial killing spree. The law was passed with the intention of preventing someone like Osama bin Laden escaping the death penalty if convicted in the United States because he was not an actual perpetrator of the terroristic acts, the 9/11 plane crashes.

The law makes the killing of an individual during an act of terrorism a capital offense in Virginia. But most important, the new law bypasses the triggerman rule so that anyone involved in the planning of a terror attack (but who did not participate in the attack itself) may also face the death penalty.

The law has not yet been tested in the courts.

David Albo, the Virginia delegate who authored the bill, says the law was passed to close what lawmakers saw as a legal loophole. Had Osama bin Laden been arrested following the Sept. 11 attack on the Pentagon, he would not have faced the death penalty in Virginia even though he allegedly planned it, paid for it, and ordered it, Mr. Albo says.

The new law broadly defines terrorism to include any act of violence committed with intent to intimidate the civilian population or influence the conduct or activities of government officials through intimidation. There is no requirement that the violence be politically motivated.

. . ."The allegation is that Muhammad was the Osama bin Laden of this. He arranged it, set it up, and ordered the killings," says Albo.

That is the problem. Muhammad and Malvo seem to have been motivated by the older man's rancor toward his ex-wife and society. The demand for $10 million surfaced late in the spree and seems to be an afterthought. There is no evidence of an orchestrated scheme as there is in the facts of the 9/11 terrorism episode. What the situation resembles is other domestic serial killings -- not 9/11.

The terrorism statute may be constitutionally infirm.

. . .the broad language renders the terrorism statute unconstitutionally vague because it lacks the specificity in death-penalty laws required by the US Supreme Court. It was this requirement that led Virginia to develop the triggerman rule in the first place, analysts say.

Legal analyst Jeffrey Toobin says terrorism occurred, defining it in a general sense.

Well, this crime was unusual in many respects, but it was especially unusual because the whole region was the alleged victim. The charge of terrorism is a charge that says you tried to terrorize an entire community.

I think any of us who were around during that period can testify that it was terrorized, and so I think this was one of the strongest cases for a change of venue I have ever seen. Basically, every possible juror was a victim of the crime. So it had to be moved out of that community. I think the judge made the right decision.

Though I agree with Toobin that a change of venue was justified, I have serious doubts about the applicability of the Virginia terrorism statute to these circumstances.

3:58 PM