CrimLaw

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An Interesting Catch-22
The Continuing Adventures in the Malvo Case

Pertinent code sections:

18.2-31(13) Capital Offense-Terrorism
18.2-46.4 Definition of "Act of Terrorism"

The Defense Team in Malvo has caught the prosecution in an interesting conundrum. To charge terrorism the prosecution has to show simple intimidation of citizens or intimidation with intent to coerce the government. Naturally, intimidation - as a matter of course - requires people. You can't intimidate laws, or constitutions, or political philosophies; you can only intimidate the people following them. In order to prove the case the prosecution must prove that people felt they might become victims directly or indirectly (or that they were). This includes every single member of the jury pool which should exclude them from the jury. Therefore, the trial should be moved to a different jurisdiction.

It's a brilliant argument and you can tell by the prosecutor's use of hyperbole that it is a far better legal argument than the prosecution has available:

"In response, Horan said the claim that all county residents are potential victims is 'factually preposterous.'

'It raises the notion of 'victimhood' to a totally new dimension, a dimension where one is a victim whether he knows it or not,' Horan wrote. 'It is a proposed dimension that is insulting to those who are actual victims.'"

The prosecution should lose the argument. He won't, but he should.

This is beginning to feel more and more like a show trial. I'll be interested to see what excuse the judge uses to get past this issue.

UPDATE: I may be wrong in my belief that the case will not be transferred to another jurisdiction. SW Virginia Law Blog points out an article discussing the judge's inquiries as to possible other locales. This is what I get when I don't check the other Virginia blawg before I post.
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