VIRGINIA BEACH, Va. – Despite little proof that John Allen Muhammad pulled the trigger, the judge at his trial refused to take the death penalty off the table Wednesday, saying the evidence suggests he and fellow sniper suspect Lee Boyd Malvo (search) worked together.
The prosecution's case indicates "they were involved in purposeful shootings," Circuit Judge LeRoy F. Millette Jr. (search) said with the jury out of the room. "They perfected their ability to shoot people. They perfected their ability to escape."
The ruling came as Muhammad's defense rested its case after calling only five witnesses who testified for a total of two hours. Muhammad did not take the stand. The prosecution's case stretched over three weeks and included more than 130 witnesses.
Closing arguments are set to begin Thursday, the same day as opening statements in the murder case against Malvo, 18, who is on trial in nearby Chesapeake. A jury was seated on Wednesday.
Muhammad's lawyers argued unsuccessfully that Virginia law prohibits the death penalty for Muhammad on one of the two capital murder charges against him because there is no evidence he was the triggerman.
The judge sided with prosecutors, who said the triggerman issue is irrelevant. He said prosecutors have shown the jury sufficient evidence to reasonably conclude that Muhammad was "an immediate perpetrator" and therefore eligible for the death penalty.
An FBI expert earlier testified that Muhammad's DNA was on a sight that had been detached from the rifle used in the sniper spree. The witness said Muhammad's DNA was also almost certainly on the rifle itself.
Millette also refused to strike a capital murder charge against Muhammad that was filed under Virginia's post-Sept. 11 terrorism law.
During defense testimony, private investigator John Nenna cast doubt on a prosecution witness' testimony that he saw Muhammad at the scene of the shooting of a boy outside a Maryland school.
Muhammad, 42, is on trial in the Oct. 9, 2002, slaying of Dean Harold Meyers (search) at a gas station. Meyers' slaying is one of 16 shootings prosecutors say were committed by Muhammad and Malvo.
Malvo is on trial in the Oct. 14, 2002, slaying of FBI analyst Linda Franklin (search) outside a Home Depot in Fairfax County.
The nine women and seven men selected for the 12-member jury and four alternates in Malvo's case include two homemakers, a teacher, a retired teacher, a claims adjuster, two sales representatives, a minister, a retired assistant principal, a registered nurse, a sheet-metal worker and a mechanic.
The jurors range in age from 22 to 70. Eleven are white, four are black and one is Asian. Malvo and Muhammad are black.
Both trials were moved 200 miles to southeastern Virginia because of widespread fear generated by the sniper attacks and because of extensive media coverage in the Washington area.
Malvo attorney Craig Cooley said the jury in the young man's case is more diverse than it would have been in Fairfax County because Chesapeake's black population is three times larger. Still, Cooley complained that some prospective jurors who oppose the death penalty were removed from the pool.
Muhammad and Malvo face two counts of capital murder, one accusing them of multiple murders, the other accusing them of terrorizing the public.