Both are charged under Virginia's anti-terrorism law. As we wrote here,

But that statute has never been tested. It is doubtful it was intended to apply to serial murders. And we have doubts Virginia could even pick a jury under it.

The applicable portion of the terrorism law applies to violent crimes committed with the intent to intimidate the civilian population at large. We think that makes everyone in the civilian population of Virginia a victim, and therefore ineligible to sit on the jury. If Virginia can't seat a jury, they can't try the case and they can't convict.

For reference, § 18.2-31, the Virginia death penalty statute lists thirteen death-penalty eligible offenses. Number 13 is "The willful, deliberate and premeditated killing of any person by another in the commission of or attempted commission of an act of terrorism as defined in § 18.2-46.4."

§ 18.2-46.4. defines an act of terrorism as "an act of violence ... committed with the intent to (i) intimidate the civilian population at large; or (ii) influence the conduct or activities of the government of the United States, a state or locality through intimidation."

We're glad the defendant's lawyers are making the argument (which, no they didn't get from us, but we haven't heard any other commentators make it)--we think it's a good one. Although it might have to wait for the Supreme Court--Virginia and the Fourth Circuit are hardly likely to grant any relief to these suspects.