- The Washington Times - Tuesday, August 5, 2003

MANASSAS — A Prince William County judge ruled yesterday that prosecutors must specify which shootings they will present at sniper suspect John Allen Muhammad’s trial if they want defense attorneys to disclose to them any potential alibi evidence.

Prince William County Circuit Judge LeRoy F. Millette Jr. ruled that if prosecutors were given access to all of Mr. Muhammad’s alibi information, they could choose not to use certain shootings against him were any of his alibis were credible.

“The jury would never hear that there was an inconsistency in the Commonwealth’s case,” Judge Millette told the attorneys and prosecutors during a hearing.

Defense attorneys have argued they are required to provide potential alibi evidence only for the Oct. 9 shooting of Dean H. Meyers, 53, outside a Manassas-area gas station, the main charge against Mr. Muhammad.

“What [prosecutors] are really trying to do is intrude on the defense” by seeking information beyond the normal discovery process, defense attorney Peter Greenspun said.

Judge Millette ruled that once prosecutors specify which shootings they will present at trial, the defense team will have 24 hours to provide any potential alibi evidence.

Mr. Muhammad’s attorneys have already provided their “position regarding an alibi” for the Oct. 9 shooting. Prince William County Commonwealth’s Attorney Paul B. Ebert indicated that the defense provided an alibi, but did not say what it was.

Mr. Muhammad, 42, and fellow suspect Lee Boyd Malvo, 18, have been linked to 13 random shootings, 10 of them fatal, in the Washington area last October. The two also have been linked to six other shootings, five of them fatal, throughout the United States, all of which occurred before the Washington-area shootings.

Each man is charged with two counts of capital murder — one for a specific victim and one the state’s new antiterrorism law, which was passed after the September 11 attacks to target “evil masterminds.” If convicted, each could face the death penalty.

Mr. Malvo is charged with the Oct. 14 shooting of FBI analyst Linda Franklin, 47, outside a Home Depot in Falls Church.

Both trials have been moved out of the Washington area. Mr. Muhammad’s Oct. 14 trial has been moved from Prince William County to Virginia Beach. Mr. Malvo’s Nov.10 trial has been moved from Fairfax County to Chesapeake.

Prosecutors must prove that Mr. Muhammad committed more than one murder over the last three years to convict him of capital murder.

Yesterday, Assistant Commonwealth’s Attorney Richard A. Conway argued that the defense be required to disclose all of Mr. Muhammad’s alibi evidence. Mr. Conway said prosecutors have had to provide too much information to the defense in the case already.

“The Commonwealth has the highest respect for this court, but I respectfully suggest that we must not avoid treating this criminal defendant differently than other criminal defendants just because these crimes were so atrocious,” he said.

Judge Millette defended his position. “The court has not treated this case in a special manner because of the heinous nature of the crimes,” he told Mr. Conway.

“I meant no disrespect,” Mr. Conway quickly responded.

Mr. Conway said his office has turned over more than 2,000 pieces of evidence to the defense. He said one set of evidence the defense is not entitled to see is records of the times police reported seeing the blue Chevrolet Caprice Mr. Muhammad and Mr. Malvo drove at the time of the shootings.

“The defendant is going to be able to look at that and say, ‘Well, I won’t say I was somewhere else,’” Mr. Conway said.

Unlike prior hearings, yesterday’s was held in a larger courtroom to accommodate more media. But attendance was low.

A source denied the move to a larger courtroom allows Mr. Ebert to sit farther away from Mr. Muhammad, who was clean-shaven.

In smaller courtrooms, Mr. Muhammad would walk within a foot of Mr. Ebert to get to his seat at the defense table. At the last hearing held last month, Mr. Muhammad gave Mr. Ebert a long, menacing stare as he walked to his seat.

Yesterday, the defense table was about 3 feet from Mr. Muhammad’s holding cell.

Mr. Ebert sat at the far end of the prosecutor’s table, about 20 feet away from Mr. Muhammad. Before Mr. Muhammad entered the courtroom, a sheriff’s deputy warned defense attorney Jonathan Shapiro to keep his pen out of Mr. Muhammad’s reach.

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