John Allen Muhammad's Attorneys in Court in 3rd Death Penalty Appeal

Muhammad was convicted in 2003 and sentenced to death.
Muhammad was convicted in 2003 and sentenced to death. (Associated Press)
By Jerry Markon
Washington Post Staff Writer
Wednesday, May 13, 2009

RICHMOND, May 12 -- Attorneys for convicted sniper John Allen Muhammad returned to court Tuesday for a third round of appeals, telling a federal appellate panel that Muhammad should not have been allowed to represent himself for two days at the start of his trial.

The sniper slayings that terrified the Washington region in 2002 provided the backdrop for the argument before the U.S. Court of Appeals for the 4th Circuit. It focused on whether Muhammad deserves a new trial because his attorneys should have told the judge that there was evidence he was mentally incompetent to represent himself.

Muhammad was convicted in Virginia Beach in 2003 and sentenced to death for killing Dean H. Meyers near Manassas in October 2002, one of 10 sniper slayings that month. His accomplice, Lee Boyd Malvo, was sentenced to life in prison without parole in a separate trial. A variety of courts have rejected Muhammad's appeals, and if the 4th Circuit turns him down, his only option to avoid execution would be intervention by the U.S. Supreme Court or Virginia Gov. Timothy M. Kaine (D).

Jon Sheldon, an appellate lawyer for Muhammad, argued Tuesday that his trial attorneys failed to share with the judge extensive information about his inability to be his own lawyer. That included a psychiatric evaluation and images of Muhammad's brain showing that he lacked normal brain function and suffered from impaired judgment, the defense said.

"When Muhammad asked to represent himself, his counsel knew that he was seriously paranoid and had made numerous delusional statements,'' Sheldon said, adding that Muhammad at times thought he was a prophet and was on another planet.

The three-judge panel seemed skeptical.

"You're arguing under Virginia law. . . . We don't have any ability to correct that,'' said Judge Diana Gribbon Motz. "You don't have a claim in front of us.''

Senior Virginia Assistant Attorney General Katherine B. Burnett told the court that Muhammad's self-representation -- which the defense and prosecution opposed and which ended after two days of testimony when Muhammad asked the judge to reinstate his attorneys -- was "a very foolish and unwise decision. But he wasn't incompetent.''

But the judges also chided prosecutors for not giving Muhammad's Virginia attorneys 30,000 pages of documents that were later turned over to his attorneys in Maryland, where Muhammad was found guilty in 2006 of six more slayings. Among the documents were statements from witnesses who gave conflicting accounts about the killing of Pascal Charlot in the District on Oct. 3, 2002.

The witnesses saw a burgundy car, not a blue Caprice, speed away from the scene. Muhammad and Malvo were arrested in a blue Chevrolet Caprice at a Maryland highway rest stop Oct. 24, 2002. A .223-caliber Bushmaster rifle was found in the trunk, and ballistics linked the gun to nine of the 10 sniper slayings.

"Why isn't it ultimately in your best interest to err on the side of providing more information rather than less?'' asked judge Allyson K. Duncan.

Burnett responded that prosecutors were not legally required to turn over the documents because they were not "exculpatory" -- they would not have helped Muhammad prove his innocence. "The issue is whether it's required by the Constitution for prosecutors to turn over everything they have . . . they turned over reams of documents. They did not turn over everything,'' she said.

Muhammad's attorneys are using self-representation and the failure to turn over the documents to argue that his conviction and sentence should be overturned. Their third argument -- that the trial judge violated Muhammad's constitutional rights by barring defense experts from testifying about his traumatic upbringing -- was only briefly discussed Tuesday.

It is unclear when the court will rule.

Staff writer Josh White contributed to this report.

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