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CNN LARRY KING LIVE

Panel Discussion on Sniper Jurisdiction; Interview with Douglas Gansler, Bob Meyers

Aired October 28, 2002 - 21:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

LARRY KING, CNN HOST: Tonight, who gets the first crack at the sniper suspects? Maryland, where the governor says suspect John Allen Muhammad would face the death penalty? Or Virginia, where juvenile suspect John Lee Malvo could also face death?
And, did the 17-year-old Malvo ever pull a trigger? Joining us tonight in Washington, Douglas Gansler, state's attorney for Montgomery County, Maryland, where the bulk of the killings took place.

In Richmond, Va. Hanover County Commonwealth's Attorney Kirby Porter in his first interview since filing charges against the suspects today.

In New York, Court TV anchor, former prosecutor Nancy Grace.

Back in Washington, to address a possible federal role in this prosecution, former House Judiciary Counsel Julian Epstein and former federal prosecutor Cynthia Alksne.

And in Philadelphia, Bob Meyers. His brother was a Maryland resident killed by the snipers in Virginia.

They're all next on LARRY KING LIVE.

Let me begin by telling you that tomorrow night on this program we will have exclusive interviews with John Muhammad's ex-wife, his first wife, Carol Williams, and his son Lindbergh Williams. Both will be on this show, on this set, live tomorrow night.

We begin with Douglas Gansler. He is Montgomery County's state's attorney. He has -- what is going on? Is this who goes first, Douglas?

DOUGLAS GANSLER, MONTGOMERY COUNTY STATE'S ATTORNEY: Well, it's two things. One, all of the jurisdictions have the right and the venue to prosecute these people and all the jurisdictions are going to have the opportunity to do so.

It is a question of who prosecutes first and what are the implications of so doing.

KING: Do you feel that Maryland, that Montgomery County should go first because more murders occurred there?

GANSLER: Well, for a variety of reasons. Yes, Montgomery county was terrorized and paralyzed by these two men during the course of three weeks. We had six of the 10 homicides occurred in Montgomery County. Seven of the victims were from Montgomery County and seven of the 14 shootings were in Montgomery County.

So these sniper disproportionately shootings affected our county. The crimes also began in Montgomery County, they ended in Montgomery County. The criminal investigation, the epicenter of that was in Montgomery County.

We feel the prosecution should be in Montgomery County because we have the best evidence and we can get the most severe penalties in Montgomery County as well.

KING: Clear something up for us, Douglas. Maryland does have capital punishment, does it not?

GANSLER: Maryland does have the death penalty only for adults. We do not prosecute -- we do not give juveniles the death penalty. We do have life without the possibility of parole for juveniles in Maryland.

KING: And you have not used the death penalty in a while? Is there a moratorium? What's that situation?

GANSLER: Right now there's moratorium which just affects the implementation of the death penalty. It does not affect the seeking of the death penalty. And that moratorium will be lifted in the next couple of months when a study is released by the University of Maryland.

KING: And the moratorium is based on a study of what?

GANSLER: They're studying whether there's racial disparity in the execution, in the death penalty in Maryland. The study is expected to show quite the opposite. And so both candidates for governor, we have an election in a week, both candidates for governor in Maryland are pro-death penalty advocates.

KING: Douglas, how strong is your case?

GANSLER: Well, we -- obviously we felt that we had probable cause -- that these two men committed six of the homicides in Montgomery County. We filed our charges on Friday before the -- six counts of first degree murder in Montgomery County, so we feel we have an abundance of evidence against both men, both Mr. Malvo and Mr. Muhammad.

KING: So you have enough evidence even though investigations are still going on that you could go to trial soon?

GANSLER: In fact we would. If we were to get this case, we would have our arraignment the following day, we would be -- go to our indictment within 30 days by law and we would begin a trial in about three or four months after that.

KING: Now we learned that federal government charges could be announced against the sniper suspects as early as tomorrow. What do you make of that?

GANSLER: Well, I think the federal government has to think very carefully about doing that. There are some hurdles that they're going to have to have. These men did not commit -- they're going to charge them under the Hobbs Act. And many people feel that they didn't commit a Hobbs, they committed a murder.

The Hobbs Act would require the federal government to show that extortion was the motive behind these 14 shootings even though the extortion note showed up only after the 13th of the 14 shootings.

They would also have to overcome the hurdle of the fact that the federal government does not prosecute juveniles. So they would have to have a hearing to make the juvenile an adult. That juvenile would have the opportunity to appeal that hearing so they wouldn't be able to start proceedings for a year after that.

They'd also would have to justify why what is clearly a local crime, and murder is a local crime, why the federal government has a federal interest in taking away the states' rights to prosecute their crimes. There is a misconception out there that people who cross state lines to commit a murder have committed a federal crime and that's just not the case.

KING: Now they are in federal custody, are they not?

GANSLER: They're in federal custody, so that's why we're having the discussion about federal charges because it is unprecedented in the United States, as far as I can tell, where the federal government would come in and swoop -- would swoop in and take a local case from the local jurisdiction in what is clearly a local crime and try to pigeon hole a murder into some other statute.

KING: Are they, though, if they have them in custody, is, you know, occupation two-thirds of the law?

GANSLER: Or higher, yes.

They do have them in custody so they're able to file charges against them. They also, if they determine that in fact they're unable to make these charges, the federal government would have the authority to determine which jurisdiction would prosecute first.

Either the District of Columbia, Montgomery County, Maryland, or one of the Virginia local jurisdictions, each which of have had one homicide in their counties.

KING: There are some are saying, Doug, that you're doing this for political purposes. You want to respond?

GANSLER: Well, I don't think politics has any part in prosecution. It shouldn't in any case and it certainly doesn't in this case.

I was elected four years ago. I'm actually running unopposed so it's disingenuous to consider politics but I was elected four years ago. My job is to -- when two people roll into my county and murder six of my citizens and we have probable cause to believe they have done -- committed those crimes, my job is to file charges against those people.

We spoke -- every federal agent that we've spoken to, every federal lawyer that we've spoken to, has encouraged us to file these charges so that the public understands that indeed these people did commit the murders, that they're not just being held on some unrelated local charge from the state of Washington.

So we're encouraged to do it. Everyone assumed this would be a Montgomery County case from the beginning and I have no apologies at all for filing charges against these people.

KING: With all of the media coverage, are you going to find 12 people without an opinion?

GANSLER: You know, and, Larry, I know you used to live in our area, Montgomery County is a very distinct county. Sixty-five percent of our jurors have advanced degrees. They understand that although these sniper attacks did occur and although six of our citizens were murdered in Montgomery County, another one was murdered in Prince William County, that that's not the issue that they're adjudicating. They have to determine whether the two people charged were indeed the people who committed the crimes and they'll put us up to our burden and we feel we can meet that burden.

KING: I know you don't have capital punishment against juveniles. Do you have evidence that the 17-year-old shot anyone?

GANSLER: You know, this time law enforcement is treating both defendants as equally culpable as part of these shootings and what we will determine as the investigation continues is hopefully which of the two men shot whom at what time? That's still being developed through the investigation of this case by the federal agents as well as the local authorities.

KING: And finally, do you expect everybody to sit down together and sort of iron this out?

GANSLER: Well, that was the hope. In terms of the prosecution, that was the hope.

KING: Yes.

GANSLER: There has been incredible coordination here. There is a Herculean effort put forth by federal law enforcement agents, particularly the FBI and the ATF. The Montgomery County police is second to none and they were phenomenal in this case. Everyone worked seamlessly together with the same goal. The prosecutors also have the same goal.

All the prosecutors in this case want to see justice met. They want to see that the punishment fits the crimes and they want to hold these two people accountable. I would hope that we would all be able to sit down. We had a meeting on Friday. We invited everybody, federal and local, to our office. Many of them showed up. We talked to everybody before with filing our charges and we hope to continue that dialogue.

KING: Thanks, Doug. We'll be keeping posted with you. Douglas Gansler, the Montgomery County state's attorney, who filed his charges on Friday.

Later in the program, we'll meet Kirby Porter, the Hanover County, Virginia commonwealth attorney, who filed his charges today.

When we come back, our panel will assemble. We'll be including your phone calls. Don't go away.

(COMMERCIAL BREAK)

KING: Let's meet our panel. In Philadelphia is Bob Meyers, the brother of Dean Harold Meyers, who was killed October 9. He was pumping gas at a Sunoco station in Manassas, Virginia. Prince William County, Virginia, brought murder charges against John Muhammad today for the shooting death of Dean Meyers. Similar charges are being brought against Malvo in juvenile court.

In New York is Nancy Grace, anchor of "Trial Heat" on Court TV and a former prosecutor. In Washington, former federal prosecutor Cynthia Alksne. And in Washington as well is Julian Epstein, the former chief Democratic counsel of the House Judiciary Committee.

Bob, first, how is the family doing?

BOB MEYERS, BROTHER OF DEAN HAROLD MEYERS: We're doing very well. We certainly would prefer that the circumstance wouldn't be the way it is. But on the other hand, if we're having to face the situation, and we're going to do it by trusting God rather than questioning him, and that helps us.

KING: Tell me about Dean's family.

MEYERS: Dean was a single man, never married, no children. However, he certainly had a lot of involvement with children within the family, and even outside the family that were in families that he worked with, husband (ph) or maybe lived near.

KING: What did he do for a living?

MEYERS: He was a civil engineer, trained at Penn State University, and working in Maryland or Virginia all of his professional life.

KING: Do you have thoughts on this prosecution squabble?

MEYERS: Well, I'm not necessarily picking sides. However, it would be desirable in our part to make sure that the widest range of options are available for each of the suspects, and it would be preferable that we wouldn't be dealing with jurisdiction that has limitations.

KING: You in favor of the death penalty?

MEYERS: If the government, through the judiciary, decides that that's the right punishment, then, yes, we certainly would not stand in the way.

KING: Nancy Grace, what do you make of this who gets -- who goes first?

NANCY GRACE, COURT TV: Well, I know it is being characterized as a squabble, Larry, but I think the bottom line is that every victim's family -- and I'm speaking not just as a former prosecutor but as a victim of violent crime -- every victim's family wants that case to go forward, and they want to make sure that their loved ones' case is protected. It's up to the district attorney to charge on behalf of their county. So there is absolutely nothing wrong. In fact, it is expected for each district attorney to charge in their county. If not, they would be derelict.

KING: But you don't want to have 14 trials and waste -- and who goes first?

GRACE: Waste what? Waste what? What are we going to waste? You have got these murders...

KING: What do you want to do, kill them 46 times if (UNINTELLIGIBLE)?

GRACE: No, of course not.

KING: So?

GRACE: But why should one case be neglected? Each case calls for justice. No, I don't want to have duplicate trials. But I would certainly never say that one victim's life is not worth what another victim's is.

KING: I wasn't asking that. Cynthia, who should in this kind of case, as you see it, go first? And should there be other trials if the first one has capital punishment and he's convicted, can't kill him 10 times?

CYNTHIA ALKSNE, FORMER FEDERAL PROSECUTOR: I think there should be a series of trials, and the first one should be in Montgomery County. And here's why. Because Montgomery County was the most affected and because of the number of murders that were there and because from a legal point of view they can try them together. They have four shootings that happened within two hours and 40 some minutes of each other, where these two men were essentially trolling for victims in Montgomery County and were shooting them from the back of their car.

The moral weight, I think, of this argument goes to Montgomery County, and they should try it. For me, it's not outcome determinative where is the death penalty and where is it, blah, blah, blah -- everybody is going to get a chance to prosecute these cases, the local prosecutors. To go to Montgomery County, and then Virginia has to do them one after the other, because as you know they happened in different counties. And Spotsylvania County can't try the Fairfax County murder, can't try -- whatever.

So we're going to have a series of cases, and I think because of the effect on Montgomery County, it should go first.

KING: And therefore everyone should have a case, even if it takes 11 cases? And they all find him guilty and they all get the death penalty?

ALKSNE: Well, shouldn't take that many -- well, they won't be carrying it out that many times, obviously, but the cases take some time to go through the appellate process.

The only thing that I don't think should happen, the only trial that should not occur is on open the federal level. And that's not only because as a general policy, we don't try federal cases just for murder cases. That's a state court issue. But because the federal case is such a tortured reading of a statute. I think that's a bad idea, and because it adds extra layers and burdens of proof on this extortion, it's a mistake to make that -- for it to go there.

KING: Julian, why does the federal government want to be involved? These are all state matters, aren't they?

JULIAN EPSTEIN, FORMER JUDICIARY COMMITTEE COUNSEL: Well, yeah, primarily it's a state matter. There is a stated reason, and I think an unstated reason.

The federal government, as Cynthia was just pointing out, can make a case here that you connect the extortion claim that was made by the snipers after the ninth killing, I think it was, for $10 million to the killings themselves and then you can bring it under the federal jurisdiction under something known as the Mann Act. I think that's a very ill-advised strategy, because as Doug was pointing out in the previous segment, what you have to show essentially is that all of the murders were essentially done with the motivation for this extortion. I think the federal government would have a difficult time doing that.

I think the unstated reason is that this is a very pro-death penalty Justice Department, and clearly while you can -- the law offers you no clear answers as to who should go first here. There is no case precedent, there is no statute that says it should be either Maryland or it should be Virginia.

Cynthia makes a good argument by saying that the equities are on the side of Maryland, because most of the murders occurred in Maryland, six of 10 of them. On the other hand, if you want to see a death penalty in this case, then I think it is almost inarguable that you would want to go to Virginia, for the following reason -- both the Maryland and the Virginia statutes require, in order to get a death penalty, a capital sentence that you must show who -- you must prove who pulled the trigger, and the only way I think you're going get -- you're going to be able to do that, given that both of these defendants right now are being mum, they are not cooperating with the authorities, the only way you're going to get to do that is if you flip Malvo.

In Maryland, you can't flip Malvo, because he's looking at life without parole no matter what. In Virginia, you can flip him because he's looking at the possibility of the death sentence.

KING: Meaning he turns evidence.

EPSTEIN: He turns evidence. He turns on Muhammad, and I think that's the only way that they're actually going to be able to get the sufficient evidence that they're going to need for a capital sentence. That's why if you want the death penalty, you've got to go to Virginia.

KING: Nancy, do you see a federal involvement here?

GRACE: I think the feds will make an attempt, Larry.

Let me just be blunt. As it stands today, you've already got state charges in several states. As of tonight at 9:00 when we go to air, the feds haven't even decided what they're going to charge them with. That's a hint. That's a clue. As Cynthia has just stated, the feds will have a very long, protracted, torturous case about extortion, when we all know this is about murder.

But there is a wild card that nobody's mentioned, and that's the state of Alabama. They've already charged both of these, Muhammad and Malvo, with murder. They're seeking the death penalty on both of them. And while the other jurisdictions are trying to figure out what they're going to do, Alabama will probably go forward with the trial.

KING: And Alabama's was the first murder, was it not?

GRACE: That is correct. A lady in a parking lot was gunned down and fingerprints were left.

KING: We'll be back with more. Get Bob Meyers' thoughts on this. In a little while, we'll talk with the other prosecutor from Virginia, then the panel will resume, and we'll include your phone calls. Don't go away.

(COMMERCIAL BREAK)

KING: Bob Meyers, if there is prosecution of the other cases, and the death penalty is invoked, do you still want to see a trial for the killing of your brother?

MEYERS: Not necessarily. I believe that if the action is taken anywhere against them, as you so aptly said, you can't invoke the death penalty more than once. However, if there is a difference in the legal side where they could slip through later, through appeals or something like that, maybe it is appropriate to do it again. But I think our interest is to see justice done once, and not necessarily ten times over. KING: Cynthia, there is a third man in the case, Nathaniel Osbourne. The FBI has issued a material witness warrant for him Friday. They don't believe him to be the suspect. He's the registered owner of the Chevy Caprice. What is a material witness?

ALKSNE: A material witness is somebody that the feds want to talk to, and they are afraid he's going to flee, and they get a warrant in advance so they can hold him until such time as they figure out exactly who he is, and they get a judge to approve it in advance, so they're able to hold on to him.

The guy may not be important in terms of the shootings themselves, but it may turn out that he's very important about statements. For example, we know that this sniper liked to make phone calls. He was constantly calling the tip line. Maybe he was reaching out to other friends and bragging, as happens so often in murder cases, and the co-owner of a car, somebody he felt comfortable with in his life, would be such a person. So it is -- if I can just say one thing to all of the prosecution teams, it is to slow down because out there, there may be statements that are going to help, figure out who all these -- the triggermen were in what shooting, there may be other crimes, and there is other information out there if we don't go too fast.

EPSTEIN: Larry, can I add a point to that as well?

KING: Yes.

EPSTEIN: Yes. Just picking up on what I was saying before about the need to flip Malvo. If you can possibly flip Malvo to affirm the fact that Muhammad was the trigger man, remember, you're going to have to flip him not just in one jurisdiction, but in as many as seven or eight jurisdictions that could potentially have jurisdiction over different crimes that were committed.

So this is going to be -- what we have seen now, and I would disagree, I think, with Nancy a little bit on this question, I do think that what is happening with the prosecutors here is a little bit of politics. There is this kind of proto-natural jockeying now to be the alpha dog, if you will, in who is going to take the lead on this case. This is going to be the biggest case that these prosecutors will have seen in their career to this date, so I think some of that is at hand. But, the reason why you can't just separate these cases out, and say we're just going to do them successive, successive, successive is because every single trial strategy is going to -- will affect the later trial strategy, and the ability, again, to say, cut a deal with Malvo, not necessarily that the prosecutors want to cut a deal with him, but the ability to flip him will require coordination amongst all the prosecutors in the different jurisdictions to make that happen.

KING: Nancy, you want to comment?

GRACE: Yes, I do, and I have worked on death penalty cases, and if it were my jurisdiction, I would not sit back and hope and pray and count on a prosecutor somewhere else in another jurisdiction to do my work, and I agree with you, Larry. I don't want to see duplicate trials over and over and over, but I know this. Let me just say the two words: Charles Manson. Manson got the death penalty, it was reversed. He's still alive and well and running his own Web site. I would make sure that in every jurisdiction that justice could be sought, it would be sought and last, as to the material witness warrant on Nathaniel Osbourne, I've handled material witness warrants, and Cynthia it is is right, it is when you think a witness is going to take a powder. But as to his testimony, he has got something very serious to say. I guarantee you, if and when he handed that car over to Muhammad and Malvo, it was not specially altered to be a killing machine, and he can vouch to the condition of that car without the holes in it, without the tripod in it, without it being altered to kill and murder.

KING: Bob, with all you've learned now about this, and by the way, we'll learn a lot more tomorrow night when John Muhammad's ex- wife Carol Williams, and his son Lindbergh Williams, join us exclusively tomorrow night. They're coming out here to Los Angeles to be with us, with all you know about this, what do you make of this? Your brother's death was why?

MEYERS: I'm sure there is no good reason. There is probably a reason, but certainly no good reason, and any reason that is given would certainly be of interest to us, just as part of the closure process, but we're certainly not anticipating a good one.

KING: Cynthia, what do you make of this whole story? The more you learn about him, what do you make of this?

ALKSNE: Well, unfortunately, we didn't learn, in the course of the interview process, why this happened, because I think that is an important -- that's really the only mystery -- or the main mystery left, and one of the reasons why he can we didn't is a big concern to me, and that is that through the -- the -- Malvo and Muhammad were being interviewed, and the feds were so itchy to get them in their custody that they stopped the interview of Muhammad, who was just starting to talk, and pulled him up to Baltimore so that he could appear in court on these minor charges that they're holding him on. Now, in a normal case, if you had all murder -- homicide prosecutors, they would have dismissed the Baltimore charges just to keep the interview going so we would have the why today, so that the victims would have the why. Because that's really important here, and because of this squabble, we don't know.

(CROSSTALK)

KING: Do you agree? Nancy, you agree?

GRACE: Well, you know, I spent a good 15 years in felony courtrooms trying to figure out why, Larry. I would sit there and look at murder defendants wondering why and trying to explain it to juries, and I finally figured this out, it doesn't matter why. I need to know who did this and who is responsible and what is the correct sentence and maybe if I find out why, I might understand it a little bit more, but what more do you have to understand about evil?

KING: Julian, you have any thoughts as to why?

EPSTEIN: A couple. One is that while I think law enforcement eventually did a good job, I think there are a lot of legitimate questions that can be raised about law enforcement. Were it not for the snipers' tip about the Alabama murder, many in law enforcement think they still wouldn't have gotten him. So I raise -- one raises the question about whether or not we need a more sophisticated ability to deal with these types of things.

Remember, according to reports that came out in the papers today, both Malvo and Muhammad had been reported to federal authorities. Muhammad had been attempted to be reported as a suspicious character to the FBI numerous times, and he kind of slipped through his fingertips. Malvo slipped through the fingertips of the INS, and I still don't understand, Larry, why we have these rifles with this type of capacity, the ability with precision, from 3, 400, 500 yards away, to blow somebody's head off, why we -- why the gun lobby insist that we need to have these weapons on the streets for nuts like this that can be purchased from a Web site. I just don't understand that. I think that the self-defense argument is bogus. The notion of defending yourself against this type of weapon is ludicrous.

KING: Let me get a break, and we'll come back. We'll talk with Kirby Porter, the Hanover County, Virginia commonwealth attorney who filed charges today, and then we will go to phone calls for our panel, and we'll be right back.

(COMMERCIAL BREAK)

KING: Get back to our panel in a little while. Joining us in Richmond, Virginia is Kirby Porter, Hanover County, Virginia's Commonwealth attorney, who today filed action in his county in connection to the shooting of a man outside a Ponderosa restaurant in Ashland, Virginia on October 19. That man is still in critical but stable condition.

Why the charges, Kirby, since everyone else is involved with murder and yours is not?

KIRBY PORTER, HANOVER COUNTY VA COMM. ATTORNEY: Well, because contrary to what I've heard this evening, there is no wrangling amongst the prosecution here. As a matter of fact, it was through communication with the U.S. attorney's office and Paul McNulty, who has been fantastic to work with, as well as Tom DeBaggio (ph) in the Baltimore office of the U.S. attorneys, they allowed us to bring our charges to put them in place, because we have a barring statute that if the federal government uses the evidence of the Ashland case, which they may very well, then we would not have been allowed to prosecute.

So if anybody wanted to preclude someone from prosecuting a case, they certainly could have done that to my county, and they did not.

KING: And your cases are for attempted capital murder, right?

PORTER: Yes, sir. That's correct.

KING: So where do you expect to be in the pendulum here?

PORTER: Well, certainly the main thrust of everybody's desire in this is to get justice. And what the conversation has been about is where is the best place do that. I heard a comment earlier about the trigger man rule in Virginia. One of the thing that postures us for a superior position in this case is under the terrorism statute in Virginia that was passed July of this year, the trigger man rule has been abolished. It is now applicable to all -- not only the person who pulled the trigger, but also the person who encouraged them and incited them.

So very clearly, if you have a case involving two people, one is the leader, one is the follower, and the trigger man rule would apply in Virginia to allow the death penalty for both, as well as the 17- year-old, which is not applicable in other jurisdictions.

KING: How do you personally feel about a 17-year-old murderer?

PORTER: This is an adult act. It was committed -- a heinous, terrorist act. This is not a 17-year-old child.

KING: You mean it's the act, not the age?

PORTER: Absolutely. When you're 17 years old and you kill multiple people, or you commit specific criminal acts, you are committing adult acts, and capital punishment should be applicable.

KING: Now, the thing you don't know at this point, I assume you don't know, in your case is who pulled the trigger, right?

PORTER: Larry, I'm sorry, but I can't comment in Virginia about the facts specific to the case.

KING: I see. All right. Do you have significant knowledge enough to -- can you go to trial tomorrow?

PORTER: I do not anticipate that my case will be the first tried. I would like to see the capital offenses in other jurisdictions here in Virginia tried first, because we do have a strong death penalty statute.

What I've done by filing my charges today is to preserve the future right of the citizens of Hanover County, should they desire to have their case heard.

And also, the gentleman whose brother was killed that you talked to a moment ago made an important point: Death penalty statutes are scrutinized with a fine tooth comb. It may be that Hanover, with our potential for four life sentences, may be a safety net at some time. And if that's the case, if appeals look as if something has gone wrong, we would certainly be more than happy to step up and prosecute our case out of turn.

KING: What's the condition of the gentleman who was wounded?

PORTER: My victim witness coordinator has visited him today. I've discussed it with law enforcement. He's a very private individual and we respect that. But I understand he is recovering, and we hope that he will have a speedy recovery and full recovery, although these are very serious injuries.

KING: If you were asked for an opinion as to who should go first, as Kirby Porter, who do you think should go first?

PORTER: Absolutely the equities and all of the information breaks for one of the three jurisdictions in Virginia that got a capital murder charge against this individual. We do not have a moratorium on capital murder as Maryland does, and what concerns me is mitigation evidence in a capital murder trial in Virginia would allow any other mitigation from prior trials to be introduced, so the 17- year-old who could get capital murder in Virginia, could argue I was tried for these same crimes in another state and got life, and that is all this case is worth. And that could be seriously damaging to a Virginia prosecution.

KING: How about the Alabama matter, though? That came first?

PORTER: Well, Alabama, as far as I know, has kind of been lost in the mix up here in Virginia. We've been dealing with the U.S. attorney's office and Baltimore and here in the Eastern District, and our attorney general, Jerry Kilgore. And I've talked to Doug from Montgomery County. And nobody has wrangled. Nobody has argued. Nobody has raised a voice or spoken an ill word, but I have not spoken with anybody in Alabama.

KING: Thank you, Kirby. We'll be calling on you again. Kirby Porter, Hanover County, Virginia, the commonwealth attorney filed charges today. When we come back, we'll be going to your phone calls. Tomorrow night, John Muhammad's ex-wife Carol Williams and his son, Lindbergh Williams, exclusively on LARRY KING LIVE tomorrow night. Your calls for the panel after this.

(COMMERCIAL BREAK)

KING: Let me quickly reintroduce the panel before we go to calls.

In Philadelphia is Bob Meyers. His brother, Dean Harold Meyers, was killed October 9.

In New York is Nancy Grace, anchor of "Trial Heat" on Court TV, former prosecutor.

In Washington, former prosecutor federal Cynthia Alksne.

And in Washington, the former chief Democratic counsel for the House judiciary committee, Julian Epstein.

And we'll take a call from Toronto. Hello.

CALLER: We understand from the background of the juvenile convicted that there is positive attributes associated with Malvo. From a criminal mind, our family and many families around the country are wondering what would lead a young teen to be influence by Muhammad such as what he's done? Can anyone comment will the defense bring up some of the background issues such as poverty conditions, lack of parental role model?

KING: Will they, Julian?

EPSTEIN: Of course they will. You know, when you get to at least the sentencing stage where you get to mitigating circumstances, they'll attempt to do that. They'll trace the history of original connection with him. I think it was in the Virgin Islands, in one of the islands off of in the Virgin Islands.

KING: Will there be two lawyers?

EPSTEIN: They will -- yes, I believe that will -- will they have two separate lawyers?

KING: Yes.

EPSTEIN: Yes. I believe that they will have two separate lawyers. Cynthia and I were just talking during the break, whether they be tried separately or together? I think the defense always wants to separate the two out because they can always then use the empty chair and say it was the other guy that was really the bad actor here.

But the prosecution always wants to try them together. And I think that it's unlikely that any judge is going to sever these two cases. But that will be another issue that will be an issue where you'll see pretrial motions and then posttrial appeals.

KING: Los Angeles, hello.

CALLER: I'd like to talk about the penalty phase.

KING: Yes.

CALLER: On this. Death is the easy way out. They ought to have hard labor for those people so they suffer and also to find out from the people that's involved whether they think that's right.

You know what I mean? It will be three years before anything develops that they do get the death penalty. They get to live there. But I'm talking about hard labor.

KING: Nancy, what do you think of that idea?

GRACE: Well, you know, a lot of people feel that way but in this country, pretty much, work detail or hard labor camp has been disallowed. You may once in a while see a felon, closely guarded, picking up trash but forget about hard labor.

A lot of people agree with the caller, but it's not so in this country anymore. KING: Rogue River, Oregon, hello.

CALLER: HI. Does anybody on the panel think that there's any chance Malvo or Muhammad could be acquitted given what seems to be some very strong evidence?

KING: Cynthia?

ALKSNE: Well, anybody can be acquitted. And that happens. We're so far ahead of ourselves, we don't really know, for instance who are the triggermen in all of these different cases and is Malvo going to say, Oh, I didn't -- I only did it because I was forced to do it and have a duress defense and we don't know a host of things.

How is the change of custody in and was everything done correct with the police? So in many respects the caller raises an important point. We're so busy talking about the sentence that we haven't even figured out what the evidence is and we aren't even at arraignment on any of these cases yet.

GRACE: I harken back thought, Cynthia -- to the large degree I agree with you. But in the Alabama case, the prosecutor does say Malvo was identified as a trigger person and his fingerprint was left in the parking lot. That's a pretty strong case that at least in that case that he was the trigger person.

ALKSNE: But the case is strong here by what we know. And also now we're looking into another murder in Tacoma that perhaps they were involved in, too. There is -- you know, but the caller makes a good point it is a little early to decide they're guilty.

EPSTEIN: Yes, I agree with you. This is a slam dunk case, I think, though for prosecutors. And I think that there is almost no question on as to whether Muhammad will get the death penalty in any of the jurisdictions. The only question really on the table right now is whether Malvo will.

In Virginia he will certainly, I think, get the death penalty. In Maryland, he can't. In the federal system, I don't think -- it's very unlikely that he could.

KING: Bob, what do you think about a 17-year-old on the death penalty?

MEYERS: I think he's close enough to 18 years old to know the difference between right and wrong and I believe that if that's what's decided in the court, then so be it.

KING: Charlottesville, Virginia, hello.

CALLER: Hello. My question is, being that past research has concluded the death penalty to be costly, time consuming and an overall inadequate service of justice, would it not be a better use of citizens' time and money to discontinue the publicity of these two and truly serve justice by pursuing life in prison without parole?

KING: Nancy, I know you don't agree with that but it's well stated.

GRACE: Well, I think the lady caller is entitled to her opinion. However, when it gets down to how much justice costs, I think that's a pretty weak argument.

I think that if you want to cut costs, go up to the Capitol and cut some cost up there with our Congress and our legislature. But long story short, when it comes to justice, it's not about money. It is about doing what that jurisdiction and that jury thinks is correct.

And in this case, it's not just about rehab or deterrents, it is about punishment and those jurors will be considering that.

KING: Mount Vernon, Ohio, hello.

CALLER: Hello, Larry.

KING: Hi.

CALLER: I would like to know one question and if I was a victim's families, I would be wanting to know this.

Why is our immigration services not doing their job? They had this boy and his mother. They knew they were here illegally. Why didn't they deport them?

KING: Julian, good point.

EPSTEIN: It's an excellent point. I think we've seen in the last year after the 9/11 attacks, I think we've seen major failures in parts of the INS in terms of being able to see very, very significant red flags and I think it goes back to what I was saying in an earlier segment, which is, I think, a need to greatly modernize our law enforcement capabilities.

We're living in a dangerous age, not jut of terrorism, but of anybody who has a gripe against the United States now and there's all kinds of weapons of destruction. There are dirty bombs, there are these rifles that can take you -- that can kill somebody from 500, 600 yards away, there's all kinds of potential danger out there.

So I think there's a great need for enhanced technology and for sophisticated personnel in our law enforcement and even, I think, there is a need to retract a little bit on our civil liberties given the nature of what's going on with potential criminal threats from various -- from multiple sources right now.

GRACE: You know, Larry...

KING: Olney...

GRACE: I'm sorry.

KING: Go ahead.

GRACE: The one simple thing we could do is in the Alabama case, the reason why -- one of the reasons why it took so long to make the link was because Alabama doesn't subscribe to a certain level of FBI fingerprint evidence so they didn't check the fingerprint they had at the murder scene because they don't pay the money to check. Let's give them the money.

KING: Olney, Maryland, hello.

GRACE: So that everybody can get the....

KING: All right.

Olney, Maryland. Olney, Maryland, hello.

CALLER: Hi, Larry.

KING: Hi.

CALLER: My question for the panel is this: If Montgomery County prosecutes this case first and Malvo is sentenced to life in prison without the possibility of parole, and then Virginia tries him and he is sentenced to the death penalty, will that sentence ever be carried out?

ALKSNE: Yes, it will be. After it goes to the appellate process and if he is sentenced to death by Virginia, he will receive the death penalty.

EPSTEIN: There are procedures...

KING: We'll take a break -- hold it, Julian. We'll take a break and be back with some more moments on this edition of LARRY KING LIVE.

Don't go away.

(COMMERCIAL BREAK)

KING: Victoria, British Columbia -- hello.

CALLER: Hi. The first sky jacking years ago spawned a state of sky jackings. Are authorities at all concerned that these crimes will initiate a trend for sniper killings?

KING: Julian?

EPSTEIN: Again, Cynthia and I were just talking about this over the break. I think, yes, authorities are concerned about that. And I think we should be concerned about that.

I think, as I was saying, not to be alarmist about this, I think that everybody from al Qaeda to any domestic group that has a gripe against the United States is looking at these guys and looking how easily they got away and perhaps they would have gotten were it not for the tips.

So I think that yes, we have an enormously open, wonderful, but also porous and dangerous society and technology. The danger -- the technology of destruction is a problem that is getting worse, not better.

So I think yes, there is the possibility up duplication, the possibility of copycat. And I think that law enforcement, we're going to have to deal with law enforcement and security in a new world now.

GRACE: I think people will, Larry, be watching and they will be watching how our court system deals with these two. And that's why I feel it's very important we seek the maximum sentence on them.

EPSTEIN: I don't think they're watching the court system. I think they're watching how easy it is to get away.

KING: Cynthia, there's so little we know about the young boy. Was he a prisoner? Why are we jumping to conclusions about him?

ALKSNE: I'm not even fully convinced about his age. To me, I think we need to even spend some time figuring out how old he really is. One of the reasons why I'm concerned about our rush to quick, quick, quick, quick, quickly let's file the charges and let's start trial is, there are a lot of unknowns out there.

What do we know about the boy? Why don't we exactly know where his mother was during all of this? How did it happen he went to school and nobody found out, you know he wasn't going school anymore? And he didn't have transcripts and what was his relationship and who gave him up and how did this happen. There is so much we don't know.

KING: Bob, don't you worry about that, Bob, someone who's related to a victim?

MYERS: No, my concern is that if he's truly involved in the crime as an active participant, that I think he needs to be...

(CROSSTALK)

KING: Bracebridge, Ontario -- hello.

CALLER: Yes, this is for Nancy. I would like to know -- I've heard that Malvo could be older than 17. And if so and he's already been indicted in juvenile, can it be flipped over to adult court?

GRACE: You know, that's a heck of a question. And let me tell you this, him being in juvenile is to his benefit. But just because he's been charged in juvenile court doesn't mean anything because he's going to be bound over, so to speak, to adult court.

I'm suspicious of his age, too. I think he could be older as a matter of fact. We're trying to rely on documents not American. I think he could be older and as soon as we find out his true age I think he'll end up definitely in federal court.

KING: BY the same virtue, Nancy, could he be younger?

GRACE: Yes, he could be younger. But I'm not too, too worried about why he wasn't in school. What I'm worried about is why he was in the back of that car according to prosecutors leveling people that were just sitting there at the bus stop.

EPSTEIN: I think he's older, Larry. I think the dispute about his age, and I'm getting this second hand through other reporters I spoke to today, was that his mother didn't register his birth certificate at the time of birth. Registered it in Jamaica subsequent to that time so I think he can only be older.

KING: Dallas -- hello.

CALLER: Hello. Well first I would like to, Mr. Meyer, my prayers are out with you.

The question for the panel, have anyone thought about posing (ph) the victims' families, what they would like to have done, instead of making this a political issue to where this would be? I feel the family are concerned about getting over it over with and not about all these trials, which is hard on a victim family.

KING: Cynthia, well stated.

ALKSNE: Well stated. The victims' families ought to be consulted but ultimately the lawyers and the prosecutors who are elected and are sworn to protect the citizens of their county are going to have to make the decisions. But they should do it with victim input.

KING: Nevato, California -- hello.

CALLER: Yes, I have two questions. Because the younger boy is not an American citizen, can they still prosecute him? And, No. 2, what would happen if they decided to plead guilty?

KING: We only have a minute left, Julian.

EPSTEIN: Citizenship has nothing to do with it. If they plead guilty that probably doesn't have anything to do with it unless Malvo wants to flip against Muhammad. Any plea must involve, by definition, the agreement of the prosecutor for some type of lesser charge. And I think it's unlikely that any prosecutor is willing to do business with these two.

KING: Does anyone think that might happen? Cynthia?

ALKSNE: I don't think that'll happen. They would have to plead to the top count, to the murder.

KING: Nancy?

GRACE: No guilty plea unless they want to plea to the death penalty and the fact they're not American citizens does not bar prosecution.

KING: Bob, what do you want to have happen?

MYERS: I just like to see justice done and I'd like it to be in accord with a court that has the widest range of options for both men. KING: Thank you, all very much. Bob Meyers, whose brother Dean Harold Meyers was killed October 9 while pumping gas at a Sunoco station in Manassas, Virginia. Nancy Grace of Court TV. Cynthia Alksne, the former federal prosecutor. And Julian Epstein, former chief Democratic council, House Judiciary Committee.

I'll come back and tell you about tomorrow night after this.

(COMMERCIAL BREAK)

KING: Tomorrow night, two exclusive interviews. John Muhammad's ex-wife, Carol Williams, her first appearance anywhere. And his son Lindbergh Williams. Both tomorrow night on LARRY KING LIVE.

And on a lighter note, last week when the World Series was about to begin, I said to Aaron Brown, host of the upcoming "NEWSNIGHT," Who do you like? And he said to me, Who do you like? And I said, I'll take the Giants in 7. He said, OK, I'll take the Angels in 7. And now he's boasting.

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Douglas Gansler, Bob Meyers>

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