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Sniper Case Unsettles Usual Police Procedure

'Detainer' Meaning Led To Dismissal in Fairfax

By Tom Jackman
Washington Post Staff Writer
Tuesday, October 5, 2004; Page B01

The police teletype was a routine one, sent from one county to another asking that a prisoner be held. That simple action led to the dismissal of a case that was anything but routine.

A Fairfax County homicide detective sent the teletype Jan. 6 to the Prince William County jail, requesting that recently convicted sniper John Allen Muhammad be detained. Virginia police and prosecutors have long thought that a detainer serves merely as a request for a phone call -- "Let us know when you're ready to release him" is how many prosecutors characterize it -- and not as an arrest.

Wrong, a Fairfax judge said Friday. A detainer is equivalent to an arrest when it is sent from one Virginia county to another and starts the state's five-month speedy trial clock for jailed defendants. For Muhammad, it meant the dismissal of his capital murder case in Fairfax in the Oct. 14, 2002, slaying of Linda Franklin.

The ruling by Fairfax Circuit Judge M. Langhorne Keith wasn't catastrophic for the overall sniper prosecution, because Muhammad has already received two death sentences in Prince William. He also faces a host of murder charges in four other jurisdictions for sniper shootings that left 12 people dead in September and October 2002.

But it may make life much harder for Virginia prosecutors in such urban areas as Northern Virginia, where defendants regularly are accused of crimes in more than one county. Keith's ruling reinforced a little-noticed 1993 Virginia Court of Appeals decision that said detainers start the speedy trial clock, and it may force prosecutors to devise new ways of monitoring defendants who are being held in other counties.

The ruling in the Muhammad case may also inspire legislation in the next General Assembly session to define detainers more clearly and separate them from arrests for purposes of the speedy trial law, Prince William Commonwealth's Attorney Paul B. Ebert said yesterday.

Prosecutors said that Keith's interpretation was new to them. Defense lawyers said the judge was simply following an 11-year-old precedent, the now famous Funk v. Commonwealth case from Fauquier County.

"Maybe they've just been getting away with it for years," said Jonathan Shapiro, one of Muhammad's attorneys. "If they just want a phone call, then they shouldn't send the papers" for a detainer, he said. Shapiro acknowledged that he hadn't researched the issue before Muhammad's case, "but you'd think prosecutors would have."

James E. Plowman, the Loudoun County commonwealth's attorney and a former assistant prosecutor in Fairfax, said: "When you send a detainer, that basically says, 'When you're done with 'em, we want 'em.' That happens all the time."

Plowman added: "There has to be some administrative way to let a jurisdiction know you've got pending charges without an arrest. Otherwise, people are going to walk out of jails and it's left to other jurisdictions to find them again." He said that Keith's dismissal of Muhammad's case "seemed like he's taken Funk farther than what it actually says."

The Funk case involved an escapee from the Fauquier jail. In January 1991, he was picked up in Hanover County on unrelated charges. Fauquier immediately sent a teletype detainer to Hanover. But Fauquier did not put Funk on trial until late August 1991. The appeals court ruled that the January teletype constituted arrest authority and that Fauquier could have retrieved Funk from Hanover at any time. Funk's conviction in Fauquier on the escape charge was dismissed by the appeals court in 1993 because he wasn't tried within five months.

Muhammad was arrested with Malvo on Oct. 24, 2002, in Maryland. Fairfax Commonwealth's Attorney Robert F. Horan Jr. obtained an indictment against him Nov. 6, 2002. The next day, Muhammad was transferred from Maryland to Prince William; Malvo was sent to Fairfax.

Fairfax didn't send a detainer to Prince William at that time. Horan said last week that it was because Muhammad was in the middle of the Prince William case.

But Spotsylvania County sent a detainer to the Prince William jail in November 2002, both Horan and jail officials said. If a judge there accepts Keith's interpretation of the Funk case, the only other Virginia murder case against Muhammad could also be thrown out.

After Muhammad's conviction in Prince William, Fairfax sent its detainer for him in January 2004. But Horan, mindful of the speedy trial rule, specifically instructed Detective Chris Flanagan to call the jail and tell them not to arrest Muhammad.

"We wanted to make sure they didn't ship him to another state," Horan said last week.

Jail officials testified last month that they did not arrest Muhammad. And when he was slated to be transferred to prison after his sentence, Prince William called Fairfax in March, per the detainer's request. Fairfax decided not to take Muhammad, and he was sent to death row in Sussex, Va. A Fairfax detective served him with an arrest warrant in late May, and a trial date was set for early October.

Too late, Keith ruled. Fairfax could have obtained Muhammad from Prince William, as neighboring counties often do in lesser cases.

"A detainer says 'Keep him until we come for him,' " said John L. Costello, a George Mason University criminal law professor and author of a textbook on criminal procedure. "And if that ain't an arrest, I personally don't know what is."

Marvin D. Miller, a veteran Alexandria defense lawyer and former head of the National Association of Criminal Defense Lawyers, said Fairfax law enforcement officials "misunderstood what the rules were. I think they made a mistake. You can't exempt the rules because this guy's really bad. It's unusual, but it's real clear."

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