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2nd Trial Of Sniper Is Ruled Lawful

Judge in Fairfax Rejects Claim Of Double Jeopardy

By Tom Jackman
Washington Post Staff Writer
Tuesday, August 31, 2004; Page B01

A Fairfax County judge ruled yesterday that the prosecution of sniper John Allen Muhammad for terrorism and multiple murders does not qualify as double jeopardy and will not cause a dismissal of the case.

Fairfax Circuit Court Judge Jonathan C. Thacher made the ruling in one of 11 pretrial motions argued by Muhammad's defense team during a day-long hearing. But Thacher adjourned the hearing before listening to arguments on whether the trial should be moved out of Fairfax. The hearing will resume this morning.

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Muhammad, 43, was tried last year in Prince William County on the same two charges that Fairfax prosecutors are using against him: committing murder as an act of terrorism and committing more than one murder in a three-year period. Both charges relate to the sniper slayings of 10 people in the Washington area in October 2002. Muhammad was convicted on the Prince William charges and sentenced to death on both counts.

Prince William prosecutors focused their case on the slaying of Dean H. Meyers at a gas station near Manassas, but they also presented evidence in the killing five days later of Linda Franklin outside Home Depot in Seven Corners, as well as nearly all of the sniper shootings. Prosecutors are basing their case on Franklin's killing.

"The case of multiple murders was fully tried in Prince William," defense attorney Jonathan Shapiro said. "Not the murder of Dean Meyers, but the murder of more than one person in a three-year period."

Thacher reviewed the Prince William case and said the jury's verdict form in Muhammad's first trial did not specify which murders they found Muhammad had committed. Shapiro, who also represented Muhammad at that trial, said he had "no doubt the jury was convinced of the defendant's involvement in every one of the murders proven."

Shapiro said his argument was the same for the terrorism charge. He said prosecutors planned to use "the same scheme" of events as Prince William prosecutors: to show that Muhammad and Lee Boyd Malvo tried to extort $10 million from the government in exchange for an end to the shootings.

Deputy Commonwealth's Attorney Raymond F. Morrogh said Fairfax had a right to prosecute crimes committed in its own county. "It wasn't just a charge of killing more than one person in three years," he said. "There were specific victims."

Shapiro said he now wished the Prince William verdict form had listed specific slayings for the jury.

Thacher commented, "I think we'd be in a different posture."

The U.S. Constitution prohibits double jeopardy, meaning that a person cannot be tried twice for the same crime. Shapiro argued that Muhammad definitely was tried for Franklin's killing last year, even if there was no specific finding of guilt.

Thacher said he "spent hours and hours and hours trying to work through this." In denying the double jeopardy argument, the judge cited the absence of a specific jury finding on Muhammad's role in the Franklin killing.

He also cited a Virginia Supreme Court case from 2002 concerning a Richmond man who killed four people in a two-year span. Though the murders individually may not have qualified for the death penalty, the collective violence qualified as "an aggravating circumstance" that allowed a capital murder prosecution, the court ruled.

Thacher cited both cases in denying the double jeopardy argument on both counts. That means that Franklin's killing remains the center of Fairfax's case, and the other sniper slayings provide the aggravating circumstances.

Muhammad watched the hearing under considerably tighter restraints than last month, when he either wriggled free or was improperly attached to his waist chain. This time, his wrists were handcuffed to a belt at his hips, and his leg chain was attached to his waist.

Also yesterday, Thacher authorized the defense to hire a private investigator for up to 200 hours and also to hire a "mitigation expert" for help with a potential sentencing hearing. He rejected defense requests to declare state discovery rules unconstitutional and to dismiss the case because of what the defense called a vague state anti-terrorism law.

The judge said he would issue a written ruling on the defense's request to dismiss the case for Fairfax's failure to bring Muhammad to trial within five months, as the state's speedy-trial law requires.

Defense attorney Peter D. Greenspun spoke almost continuously for 45 minutes on the issue, claiming that only the court, not the prosecution, had a right to decide when to try Muhammad, who was indicted in Fairfax in November 2002. Greenspun said that subsequent publicity and Malvo's trial had unfairly prejudiced the case.

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