Prosecuting John Allen Muhammad a second time for his role in the Washington area sniper slayings is not double jeopardy and should not cause the case to be dismissed, Fairfax County prosecutors said in motions filed this week.
Muhammad, 43, was tried by Prince William County prosecutors last fall on charges that he committed murder as an act of terrorism and that he committed more than one murder in a three-year period. A jury convicted Muhammad on both counts and sentenced him to death. Fairfax has filed the same two charges.
The slaying at the foundation of both counts in Muhammad's first trial was the fatal shooting of Dean H. Meyers at a gas station near Manassas. Fairfax Deputy Commonwealth's Attorney Raymond F. Morrogh noted that Muhammad is not charged in that killing in the Fairfax case. A different slaying -- that of FBI analyst Linda Franklin five days later in the Seven Corners area -- forms the main charge in Fairfax.
Fairfax prosecutors issued their responses to a slew of defense motions filed last week that will be argued Monday before Fairfax Circuit Court Judge Jonathan C. Thacher. Muhammad's second trial is set for Oct. 4 in Fairfax, though his attorneys may still seek a postponement and try to have the trial moved out of Northern Virginia.
Muhammad and Lee Boyd Malvo, 19, have been convicted as the Washington area snipers. During a three-week period in October 2002, 13 people were shot with a high-powered rifle, 10 fatally, in Maryland, the District and Virginia. Muhammad and Malvo were prosecuted separately for different shootings. Malvo was convicted of shooting Franklin and was sentenced to life in prison without parole. Now Fairfax wants to convict Muhammad in the same killing.
The concept of double jeopardy means that a person cannot be prosecuted twice for the same crime. Defense lawyers Peter D. Greenspun and Jonathan Shapiro argued that a defendant who is convicted of multiple murders or terrorism cannot be prosecuted for the same crimes simply by substituting another slaying as the lead crime.
Muhammad's attorneys pointed out that evidence of Franklin's killing was used in Muhammad's first trial. Morrogh responded, "The mere fact that some of the evidence introduced at the trial in Prince William County may overlap with that introduced in the Fairfax prosecution does not constitute a violation of the double jeopardy clause." He noted that Prince William did not have jurisdiction to try Muhammad in Franklin's slaying.
"This killing occurred wholly within the confines of Fairfax County," Morrogh wrote, "and therefore can only be prosecuted here."
The terrorism prosecutions of Muhammad and Malvo were the first in Virginia under a law enacted after the Sept. 11, 2001, attacks. The law prohibits violence committed with the intent to intimidate the general population or influence the conduct of the government. Prosecutors argued that Muhammad and Malvo were trying to influence the government by demanding a $10 million payment in exchange for an end to the shootings. Muhammad's attorneys have appealed, saying the law was misapplied to the snipers.
Last week, they said Thacher should dismiss the terrorism count because the Fairfax indictment did not specify which aspect of terrorism the snipers intended. Morrogh responded this week that Virginia courts have ruled that even if a grand jury issued its indictment with one criminal intent in mind, a conviction for a different intent is acceptable. Prosecutors said last month that they plan to use the prong of the law involving influence of the government. Prince William prosecutors used both prongs of the law in Muhammad's first trial.
The defense also asked Thacher to appoint and pay for private investigators and "mitigation" experts to be used in a penalty phase if Muhammad is convicted of capital murder. Records from Prince William show that court-appointed investigators in Muhammad's first trial received more than $167,000 in taxpayer funds, a fact noted by Fairfax Commonwealth's Attorney Robert F. Horan Jr. in his response.
Horan said that private investigators have already worked on the case for Muhammad and that the law requires the defense to show a "particularized need."
"The defense neither tells the court about the voluminous investigation already done," Horan wrote, "nor do they tell us what 'particularized need' requires more."