Ruling in Va. Case Restores Death Penalty Option

By Jerry Markon
Washington Post Staff Writer
Friday, January 20, 2006

The Virginia Supreme Court ruled yesterday that prosecutors can ask for the death penalty in the case of a Vietnamese man accused of strangling a Fairfax County woman and her 22-month-old daughter.

The ruling overturned a lower court decision that prohibited prosecutors from seeking the execution of Dinh Pham, 34, of Annandale for the January 2004 killings of Loan P. Nguyen, 30, and her daughter, Ashley N. Ton. Their bodies were found in a crawl space beneath the family's townhouse in the Merrifield area.

This month, Fairfax Circuit Court Judge Leslie M. Alden threw out the death penalty option, ruling that police violated Pham's rights under the Vienna Convention by not informing him that he could contact his embassy. The Vienna Convention, signed by the United States in 1969, was created to provide legal protections for people arrested in another country.

But the Supreme Court ruled late yesterday that Alden had exceeded her authority because she made a sentencing decision based on a motion filed before the trial. Alden's decision came six days before the scheduled start of Pham's capital murder trial.

"No statute . . . authorizes Judge Alden to exercise such sentencing discretion in a pre-trial context,'' the court said. "In other words, the action taken by Judge Alden was not within her discretion."

In directing Fairfax Commonwealth's Attorney Robert F. Horan Jr. not to seek the death penalty if Pham is convicted, "Judge Alden performed an executive function and exercised discretion that resides solely in the Commonwealth's Attorney," the court added. The court directed Alden to let Horan seek the death penalty.

"We thought the court had exceeded its powers," Horan said. "That's why we filed for the writ."

Paul A. Maslakowski, a capital public defender representing Pham, did not return a call.

The case is the second Fairfax slaying to prompt a legal battle over the failure to notify a murder suspect of his Vienna Convention right to consult with embassy or consular officials. In November, the U.S. Supreme Court agreed to review the case of Honduras native Mario A. Bustillo, convicted of a fatal beating in Springfield in 1997, because he also was not told of his international treaty rights.

Horan has said Fairfax police have a written policy requiring them to notify defendants of their Vienna Convention rights. In Pham's case, homicide detectives sent a fax to the Vietnamese Embassy informing them of Pham's arrest but did not tell Pham that he had the right to consult with his country's officials.

Pham is charged with first-degree murder in the slaying of Nguyen and capital murder in the premeditated killing of a child. He was arrested Jan. 8, 2004, one day after Huy Huang Ton discovered the bodies of his wife and daughter.

In an interview with Fairfax detectives and with a Vietnamese interpreter, Pham said he went to the family's home on Lester Lee Court to steal money, was surprised by Nguyen, strangled her with a belt and then strangled the crying child, according to court records. Pham had worked for Ton, a construction contractor.

It was unclear yesterday when Pham's trial will begin.

Staff writer Tom Jackman contributed to this report.

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