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New Sniper Judge Takes Up Trial Issue

By Tom Jackman
Washington Post Staff Writer
Thursday, September 23, 2004; Page B01

The new Fairfax County judge handling the second murder trial of John Allen Muhammad indicated yesterday that there may be sufficient evidence that the convicted sniper was denied a speedy trial to warrant dismissal of the Fairfax charges.

Fairfax Circuit Court Judge M. Langhorne Keith held his first hearing in Muhammad's case yesterday, a day after Judge Jonathan C. Thacher recused himself when prosecutors said he conducted his own investigation of a defense motion. Keith did not say when he would rule on the speedy trial issue.


Fairfax Commonwealth's Attorney Robert F. Horan Jr. stands at left as defense attorney Peter D. Greenspun addresses the judge. Muhammad is seated behind Greenspun. (Dana Verkouteren -- AP)




Also yesterday, a newly released court transcript from July revealed that Muhammad may seek to represent himself again, as he did at the beginning of his first trial on Prince William County murder charges. Muhammad took over his defense just before opening statements last October, gave an opening statement and cross-examined witnesses for two days before handing the case back to his attorneys.

Muhammad, 43, has been charged with murder in numerous jurisdictions in the October 2002 sniper shootings, which claimed 10 lives in the Washington region. In November 2002, he was sent to Prince William for his first prosecution. A jury convicted him in November 2003 and sentenced him to death.

In June of this year, Fairfax authorities summoned him from death row to face a second set of capital murder charges in the shooting of FBI analyst Linda Franklin outside the Seven Corners Home Depot. Last month, Muhammad's attorneys argued that Muhammad's right to a speedy trial had been violated because he was not tried in Fairfax within five months, as Virginia law requires. They claimed that, since he had been in Virginia from November 2002, he should have been tried in Fairfax by April 2003.

Keith quickly rejected that argument yesterday. Moments after the hearing began, he said: "I don't believe the speedy trial statute triggers the speedy trial issue merely because he was brought into the commonwealth."

The defense also had cited a 1993 Virginia appeals court ruling that once a "detainer," or request for a prisoner's detention, is sent from one county to another and that second county has arrest authority, the five-month clock begins. In January this year, Fairfax sent a detainer request to the Prince William regional jail, both by fax and police teletype.

Prosecutors responded that Prince William's correctional officers, who are not sheriff's deputies, do not have arrest authority. But Keith repeatedly disagreed with Fairfax Commonwealth's Attorney Robert F. Horan Jr. on that point. "I believe the regional jail does have the power to arrest," the judge said, but he later added, "I don't think that's a determinative issue in this case."

Muhammad's attorneys, Peter D. Greenspun and Jonathan Shapiro, wanted to show that Muhammad had been arrested in the Prince William jail once it received a detainer request from Fairfax.

Fairfax Detective Chris Flanagan testified that he sent a teletype and faxed a copy of Muhammad's indictment and bench warrant to the jail in January, with the note: "Please accept the bench warrant and indictment of John A. Muhammad as a detainer." But Flanagan said he called an officer there the same day and specifically instructed him not to arrest Muhammad. He said the detainer was only a request to be notified if Muhammad were about to be released.

Several Prince William jailers then testified that no warrants were ever served on Muhammad. A document previously filed by defense attorneys, seeming to indicate that Muhammad had been served, was only an internal notification to an inmate that another county wanted him, Capt. Dennis Webb testified.

The 1993 appeals court ruling, in Funk v. Commonwealth, then took center stage in arguments between the lawyers and the judge. In that case, an inmate escaped from the Fauquier County jail. Eventually, he was arrested in Hanover County on other charges. The next day, Fauquier sent a teletype to Hanover requesting his detention.

"The teletype constituted authority for the Hanover County Sheriff's Department to arrest" him, the appeals court ruled. The inmate was not tried in Fauquier until nearly nine months had passed. Because Fauquier could have brought him from Hanover in the interim, the appeals court ruled, his right to a speedy trial was violated, and his conviction was thrown out.

"Doesn't Funk say that the lodging of a detainer constitutes an arrest?" the judge asked Horan, "How can I find anything other than that Fairfax County requested the detainer in January 2004?"

Horan responded, "Because Fairfax County specifically said, 'We do not want him arrested.' A totally different situation from Funk."

In another matter, the judge rejected a defense motion to seal transcripts of two bench conferences held earlier with Thacher. In one, Thacher picked up on a vague hint from Greenspun and said, "I need to have my Faretta warning close." A judge gives a Faretta warning to defendants who wish to represent themselves, ensuring that they are knowingly and voluntarily firing their attorneys.


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