Prosecutors say they have extensive evidence to present at a hearing to determine if teenage sniper suspect John Lee Malvo should be tried as an adult for capital murder and face the possibility of being put to death.
A juvenile court was expected to hear from more than 20 prosecution witnesses over two days, beginning Tuesday, to determine if the evidence against Malvo is sufficient to forward the case to a grand jury.
If the judge determines prosecutors have demonstrated probable cause, Malvo, 17, would be tried in adult court, where he would face the death penalty if convicted of the Oct. 14 slaying of FBI analyst Linda Franklin.
Malvo and John Allen Muhammad, 42, have been accused of shooting 18 people, killing 13 and wounding five in Alabama, Georgia, Louisiana, Maryland, Virginia and Washington, D.C.
Muhammad, who also faces the death penalty if convicted of capital murder in the gas station slaying of Dean H. Meyers, is scheduled to go on trial in October in neighboring Prince William County.
Normally a preliminary hearing is a brief, perfunctory affair, but Fairfax County Commonwealth's Attorney Robert F. Horan Jr. said the complexity of the case requires him to present an unusual number of witnesses.
Malvo is facing two counts of capital murder related to Franklin's slaying under two separate Virginia statutes.
One count allows the death penalty when a person commits more than one murder in a three-year period. That means prosecutors must present evidence of two different shootings at the hearing.
A second count allows the death penalty under Virginia's new anti-terrorism statute, which passed the Legislature in response to the Sept. 11 attacks. Under that law, prosecutors would not have to prove multiple murders, nor would they even have to show Malvo was the triggerman in the Oct. 14 shooting.
But they would have to demonstrate the crime resulted in either an attempt to intimidate the general population or coerce government policy.
One piece of evidence that will not be used against Malvo is the alleged confession he gave to investigators in November when he was transferred to Fairfax County from federal custody.
Horan has said he will not use any statements from that interrogation. Defense lawyers have already indicated they will seek to suppress any incriminating statements Malvo may have made, because he did not have a lawyer present with him during the interrogation.
Prosecutors turned Malvo's statements over to defense attorneys last week.
The lawyers said late last week that they are still reviewing the information that prosecutors had turned over and declined to comment further.
A judge on Friday rejected defense lawyers' efforts to close Tuesday's hearing to the public. The lawyers and Malvo's court-appointed guardian, Todd G. Petit, had argued publicity from the hearing could taint a future jury pool.