Denver Bar Association
December 2003
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The Waiting Game: Two-fers are a no-no

by Paul Kennebeck

The State of Virginia has made it a capital crime for a defendant to kill two people within three years. The statute has come to prominence in the face of the trial of John Allen Muhammad who, unable to wait the prescribed three years, engaged in the random sniper killing of 10 people in the span of only a few weeks last year in the Washington, D.C., area.

The statute’s constitutionality faces rigorous attack from Mr. Muhammad, who feels time moved too swiftly.

"Three years is a long time to wait," stated one observer. "We could all be dead by then."

Section 18.2-31 of the Virginia State Statutes provides: The following offenses shall constitute capital murder, punishable as a Class 1 felony:

(8) The willful, deliberate and premeditated killing of more than one person within a three-year period.

The constitutional issue is this: It is unreasonable and arbitrary to discriminate between the patient and the impatient, between the impulsive and the calculating, between those with Rolexes and those with no sense of time.

A close reading of the Virginia statute indicates a multitude of bases for attacking the legality of the law. What’s the legal justification for differentiating between those people who can nurse a grudge and those who can’t? Between those who kill in the heat of passion and those who serve revenge up cold?

Besides, doesn’t the statute minimize the act of murder?

It’s as if the first murder is kinda bad, but it’s really bad if you go out and commit a second murder. The statute doesn’t actually encourage you to kill someone, but it clearly points out there are worse crimes in the Virginia scheme of things.

By this time, of course, the close reader will have wondered why three years?!

Why not two years? Or four years. Or, God forfend, zero years.

Where did the number three come from? Did the draftsman celebrate his third anniversary that day? Did his kid just turn three? Did he see his first three-leaf clover? Does he like threesomes? Is he part of a menage-á-trois? Was he staring at a triptych?

The reasons the Virginia statute differentiates between those killers who kill their second victim in the third year and those who kill the second victim in the second year are obvious.

The reasons are: 1. 2. 3.

Question: Does the second murder have to occur in Virginia? What if the defendant is in a different time zone? What if the three-year time period since the first murder hasn’t passed, but the defendant thinks it has?

True, the statute does serve a worthy societal purpose by limiting a defendant to killing only one person. A journey of a thousand miles begins with a single step, and if Virginia society is so beyond repair that it can’t prevent murder, at least it can attempt to prevent mass murder.

Advice: If you’re an attorney who practices criminal law in the state of Virginia, avoid any manifestly impatient, unsatisfied client who has killed his last victim within the previous two years and 364 days.


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