The case of Christopher Andaryl Wills, charged with kidnapping and killing the main witness against him in a Fairfax County burglary case, has exposed a flaw in Virginia's criminal justice system, several prosecutors contend.
Unlike Maryland and the District, Virginia requires prosecutors to present their key evidence at a preliminary hearing. That means witnesses and victims have to confront the defendant months before they will testify at trial.
At Wills's preliminary hearing in the burglary case, Zabiuflah Alam, 22, testified that he recognized Wills as the burglar he saw in the living room of his apartment.
Two days after the June 15, 1998, hearing, Wills--who was out on bond--lured Alam to an interview at Union Station with a flier advertising landscaping jobs and then caused him to be killed, according to an indictment returned this week by an Alexandria federal grand jury. Alam's body has not been found.
Wills does not have a lawyer in the Alam case, according to court records, and has not yet entered a plea to the charges. He is in prison on an unrelated conviction.
Several prosecutors said the case illustrates how Virginia's law increases the risk of witness intimidation.
"Having witnesses testify live . . . entails a certain amount of risk," said U.S. Attorney Helen F. Fahey, who is prosecuting Wills, 33. "The legislature should consider whether some changes can be made so live witnesses don't have to testify at preliminary hearings."
Defense lawyers say the preliminary hearings, which determine whether there is probable cause to send a case to a grand jury, protect defendants' constitutional right to face their accusers. They also argue that most defendants already know the witnesses in their cases.
In many other states, however, witnesses don't have to testify publicly until trial.
In Maryland, prosecutors can avoid preliminary hearings if they get a grand jury indictment within 30 days of the arrest. Montgomery State's Attorney Douglas F. Gansler said his office routinely takes felony cases to the grand jury to avoid preliminary hearings.
Grand juries, which hear evidence secretly, "really undercut the potential for witness intimidation," he said. "The witness can come when we ask them to, so the defendant's people won't know about it."
In D.C. Superior Court and in federal courts across the country, prosecutors are allowed to put a police officer on the stand to summarize the evidence at a preliminary hearing. Virginia does not allow such summaries.
"We never expose a witness at a preliminary hearing," said Channing Phillips, spokesman for the U.S. attorney's office in the District. "It would be a huge problem if we had to do it."
Defense lawyers and prosecutors agree that thousands of preliminary hearings occur in Virginia without incident every year. But some witnesses have faced danger.
Just two weeks ago in Prince William County, prosecutor Rick Conway said, a defendant walked near a witness at a preliminary hearing and drew his finger across his throat. Conway declined to identify the defendant, saying it is not clear whether the witness saw the gesture.
In 1995, Kenneth Lamont Braxton killed Lorann Marie Cox, 25, after he learned she would be the principal witness at his preliminary hearing on crack distribution charges in Manassas. Three days before the scheduled hearing, she was found dead of 19 stab wounds. Braxton was convicted of first-degree murder and is serving a life sentence.
"Braxton told my daughter he knew she was going to testify against him," said Cox's mother, Tina Cox. "They have to find another way of doing things."
Wills already knew that Alam had seen him in Alam's apartment, but the preliminary hearing made Wills realize how important the waiter's testimony was, said Fairfax Commonwealth's Attorney Robert F. Horan Jr.
"A lot of criminal defendants are of the view that 'he will never pick me out,' " Horan said. Once Alam shattered that belief, Horan said, "Wills decided he was going to do something about it."
Alam's aunt Pashtoon Azamy, who shared the apartment where the alleged burglary took place, said she was worried about having him testify before the trial. "I didn't want him to go to court, but the police officer said . . . he guaranteed 100 percent that nothing will happen," she said.
Defense lawyers say that hearing the prosecution's witnesses at an early stage provides a good picture of the state's case and makes the system more efficient.
"You know where you stand, and you're able to turn to your client and say, 'I think you should consider a plea because the witness was very strong,' " said defense lawyer Bernard S. Grimm.
A recent Virginia Court of Appeals decision holds that prosecutors can avoid preliminary hearings if they drop the charges after an arrest, release the defendants without bond and start over with a grand jury. But few prosecutors are willing to do that with a defendant they consider dangerous.
Over the years, the Virginia legislature has periodically considered dropping the requirement for both preliminary hearings and grand juries, but the proposal has never passed. "A case like this could well bring [the idea] back," said Del. James F. Almand (D-Arlington), chairman of the Courts of Justice Committee.
Staff writers Josh White and Dan Eggen contributed to this report.