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Sniper Raises Speedy Trial Rule

Muhammad Lawyers Say Rights Violated

By Tom Jackman
Washington Post Staff Writer
Friday, September 3, 2004; Page B01

When suspected thief Robert V. Funk escaped from the Fauquier County jail in 1988, he set off a chain of events -- and a key legal ruling -- that could lead to the dismissal of all remaining charges in Virginia against sniper John Allen Muhammad.

Muhammad's attorneys are using a 1993 Virginia appeals court ruling in Funk's case to argue that Muhammad's right to a speedy trial was violated because he wasn't brought before a Fairfax County judge after a Fairfax grand jury indicted him in November 2002. Virginia law requires that a person who has been indicted and held in custody be tried within five months unless the person waives the right to a speedy trial.

At first, the argument might sound questionable. Muhammad, 43, had been charged with killings in numerous jurisdictions in the October 2002 sniper shootings that left 10 people dead in Maryland, Virginia and the District. U.S. Attorney General John D. Ashcroft designated Prince William County as the site of the first prosecution, and after several weeks of deliberation, Muhammad's defense team waived its client's right to a speedy trial, as lawyers typically do in complex death penalty cases.

But defense attorney Peter D. Greenspun said that Muhammad was entitled to make that same decision in Fairfax and that Muhammad might have preferred to go to trial there first. Muhammad's accomplice, Lee Boyd Malvo, admitted firing the fatal shot in the Fairfax sniper killing, and, because of that, Muhammad probably would have demanded to be tried in Fairfax first, Greenspun noted.

Muhammad's attorneys are asking Fairfax Circuit Court Judge Jonathan C. Thacher to dismiss the case because of the speedy trial violation. Thacher has given every indication that he is taking the request seriously. He listened to Greenspun argue the issue for more than 45 minutes Monday, asked Fairfax Commonwealth's Attorney Robert F. Horan Jr. questions specifically linked to the Funk case and then ordered a transcript of the hearing.

The issue has stirred a flurry of legal briefs -- three from Muhammad's attorneys and two from the prosecution, including one filed late yesterday by Deputy Commonwealth's Attorney Raymond F. Morrogh, indicating an unusual level of concern from the Fairfax prosecutors.

"It's always the concern of a prosecutor to make sure the speedy trial rules are followed," said Todd F. Sanders, a former Fairfax prosecutor who is in private practice. He said that because Fairfax prosecutors did not specifically request Muhammad's arrest in Prince William, "that might be the deciding factor."

If Thacher were to grant the defense motion for a dismissal, prosecutors could not appeal it or seek another indictment. Muhammad's attorneys could use the same argument to attack pending cases against him in Spotsylvania and Hanover counties in Virginia. The rule does not affect Malvo, because he was 17 at the time of the sniper shootings. He was charged in juvenile warrants and was not indicted by a Circuit Court grand jury other than the one in Fairfax.

The ruling also would not affect the convictions already returned against Muhammad and Malvo in trials last fall. And it would not affect pending cases in other states; both men face murder charges in Maryland, Alabama and Louisiana and in the District.

Muhammad was convicted and sentenced to death for the Oct. 9, 2002, slaying of Dean H. Meyers at a Prince William gas station. Malvo, 19, was convicted and sentenced to life in prison for the sniper slaying five days later of Linda Franklin at a Fairfax Home Depot. Muhammad now faces a capital murder trial in Franklin's death.

Muhammad and Malvo were arrested in Maryland in October 2002 and were taken to separate counties in Virginia the next month, with Muhammad going to Prince William and Malvo to Fairfax. Horan told Thacher that he sent a copy of Fairfax's indictment to the regional jail in Prince William but said it did not qualify as an arrest on the Fairfax charge and thus did not get the speedy trial clock ticking.

Yesterday, Horan added an argument: that the jailers in Prince William are not sworn law enforcement officers, as deputies in most county jails are, and so were not legally empowered to arrest Muhammad. And, Horan said, Fairfax told Muhammad's jailers "we didn't want him arrested" on the Fairfax charge because it did not want to risk violating the speedy trial rule. Horan noted that if a formal "detainer" had been entered against Muhammad, he would have been transferred immediately to Fairfax after his Prince William sentencing rather than to the death row prison in Sussex.

The case now at the center of the Muhammad trial began when Funk was arrested in Fauquier in 1988 on a Pennsylvania larceny warrant. While Funk was awaiting transfer back to Pennsylvania, he escaped. Fauquier issued a warrant for escape.

In January 1991, Funk was arrested in Hanover County on unrelated charges. Almost immediately, Fauquier sent a teletype to Hanover requesting that Funk be held. "The teletype constituted authority for the Hanover County Sheriff's Department to arrest [Funk]," the Virginia Court of Appeals ruled. "Thus, the defendant's detention pursuant to that authority was an arrest on the [Fauquier] escape charge."

Funk was not tried in Fauquier until August. And, the court concluded, "at any time during that period [from January to August], Fauquier County could have obtained the defendant and brought him to trial. . . . It did not, and he must, therefore, be discharged from prosecution."

When Fairfax sent its indictment to Prince William, Greenspun argued, Muhammad's five-month clock began. He said Muhammad should have been tried in Fairfax no later than April 2003 or at least given the opportunity to go to trial. A trial could have been held before books and movies about the sniper case appeared, and before Malvo's trial -- all of which created "ongoing prejudice" against Muhammad, Greenspun said.

Horan responded, "In hindsight, we probably should have brought him over here in a pro forma matter and let the lawyers whine" about not having enough time to prepare for trial. Horan said prosecutors were ready to try Muhammad then but had the Malvo trial pending, Muhammad had his Prince William trial pending, and Muhammad "never asked for a speedy trial" in Fairfax.

Twice during the hearing, Thacher asked Horan for a copy of the detainer sent to Prince William. Horan said he had sent a copy of Muhammad's indictment to Prince William. Thacher then said he would consult the Prince William file.

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