Sniper John Allen Muhammad has already been convicted of multiple murder and terrorism, and trying him in Fairfax County on the same charges is double jeopardy, Muhammad's attorneys argued in a new round of motions released yesterday.
The defense team of Peter D. Greenspun and Jonathan Shapiro, which also represented Muhammad in his first trial for the October 2002 sniper attacks, asked Fairfax Circuit Court Judge Jonathan C. Thacher to dismiss the Fairfax charges for any of several reasons: because a retrial is double jeopardy or because Muhammad's right to a speedy trial has been violated or because Virginia's anti-terrorism law is unconstitutionally vague.
Fairfax Commonwealth's Attorney Robert F. Horan Jr. must respond to the defense motions by the end of next week. Thacher will hear oral arguments on them Aug. 30. The case is set for trial Oct. 4, although Greenspun and Shapiro may seek to have that date postponed.
Muhammad, 43, and co-conspirator Lee Boyd Malvo, 19, were tried separately last fall for the Washington area sniper shootings, in which 13 people were shot and 10 died. Both were convicted on capital charges of committing murder as an act of terrorism and committing more than one murder in a three-year period. Muhammad's jury sentenced him to death; Malvo's jury sentenced him to life without parole.
Prince William County prosecutors charged Muhammad with killing Dean H. Meyers as the central murder in both counts, but they introduced evidence of nearly every other sniper shooting in order to prove both terrorism and multiple murder. Now Fairfax prosecutors want to use the same approach, substituting the killing of FBI analyst Linda Franklin as the central murder, even though Franklin's murder also was part of the Prince William case against Muhammad.
"Virginia has the right to convict and punish just once for numerous murders committed within a three-year period," Shapiro wrote, "and Prince William County has already done just that, specifically including Linda Franklin as one of those killed in the same three-year period as Dean Meyers."
On the terrorism charge, prosecutors claimed that Muhammad and Malvo were seeking to extort the government into paying $10 million to end the killings. Shapiro noted that "the same governments were the subject of the prosecution [in Prince William] as here" in Fairfax, and that prosecutors "seeking back-up convictions and death sentences cannot do so on the same facts and theory."
Previously, the defense claimed that Fairfax prosecutors were unfairly using conflicting theories. Horan responded last month that his theory would be the same as Prince William's: that Malvo was the shooter and Muhammad the mastermind.
The defense also argued that the cases should be thrown out because a Fairfax grand jury indicted Muhammad on Nov. 6, 2002, and that Virginia law required that he be tried within five months, unless the defendant waives the time limit. Muhammad was not served with Fairfax's warrant until June 2004, violating his constitutional right to a speedy trial, Greenspun wrote.
Horan has said that the five-month speedy trial clock did not begin ticking until Muhammad was served with Fairfax's warrant. Greenspun also wrote two detailed analyses of Virginia's anti-terrorism law, enacted after the terrorist attacks of Sept. 11, 2001, and argued that the law and indictment are vague and flawed.
The defense attorneys asked Thacher to appoint them an unspecified number of private investigators, to be hired from various locations across the country, at an unspecified cost to taxpayers. Muhammad's attorneys want Thacher to allow them to make further such requests without showing them to the prosecutors or the public, to conceal their trial strategy.
The defense motions were filed Monday and Tuesday but were not released until yesterday because Thacher has instructed court personnel to withhold them until he has reviewed them. The judge said last month that he wanted to ensure that the attorneys did not file anything that would affect the ability to select an impartial jury.