- The Washington Times - Friday, June 27, 2003

Prince William County prosecutors want to ensure that sniper suspect John Allen Muhammad’s request for a trial by judge is not a delay tactic, and said they would consider this arrangement if the defendant waives his right to a trial by jury.

Paul B. Ebert, Prince William County commonwealth’s attorney, argued in motions filed last week in preparation for Monday’s hearing before Circuit Judge Leroy F. Millette Jr. that the trial should not be moved to another jurisdiction and that the judge should not use a questionnaire to seat a jury.

“The commonwealth has not found a position on what decision to take. We would have to look at what the defendant offers,” said Rich-ard A. Conway, an assistant commonwealth’s attorney for Prince William County.

Mr. Conway said the defense motion to preclude trial by jury should be denied, but that the prosecution is open to a trial by judge.

The defense could waive their right to a jury trial as soon as Monday, but both the prosecution and the judge have to agree to such an arrangement. A trial by judge usually is shorter, but prosecutors generally prefer jury trials.

Mr. Ebert also argued for the validity of one of the prosecution’s two indictments against Mr. Muhammad, and claimed that the new anti-terrorism law under which Mr. Muhammad is charged is constitutional.

Jonathan Shapiro, one of Mr. Muhammad’s two attorneys, declined to comment yesterday. Mr. Shapiro and fellow defense attorney Peter D. Greenspun have been the most tight-lipped of all four legal teams in the two sniper trials.

“We don’t think it’s right to be making comments for public consumption about the case,” Mr. Shapiro said yesterday.

Mr. Muhammad, 42, and fellow suspect Lee Boyd Malvo, have been linked to the 13 random sniper shootings last October, 10 of which were fatal. He is charged with two counts of capital murder in the Oct. 9 shooting death of Dean H. Meyers, 53, outside a Manassas gas station.

Mr. Malvo, 18, is facing two counts of capital murder in Fairfax County Circuit Court in the Oct. 14 killing of FBI analyst Linda Franklin, 47, at a Falls Church Home Depot.

Mr. Muhammad’s defense team requested a trial by judge because “it is a legal impossibility to empanel an unbiased jury,” they wrote in their motion.

They cited the media coverage of the case, the several books and at least one made-for-TV movie planned for release before the trial starts, along with the proximity of the shootings to Prince William County residents.

“It is undeniable that the jurors will come to the trial with feelings that they have been personally harmed by the alleged acts,” the defense said. “Each one will have felt the fear that plagued the community during the series of random shootings attributed to the accused. … The defendant is satisfied to have this court determine his fate.”

Mr. Ebert wrote yesterday that the only legal way for the court to preclude a trial by jury is if Mr. Muhammad pleads guilty. The prosecution also argued that it is possible for a jury to make a fair and impartial judgment.

“There is nothing before the court to indicate that prospective jurors would not be able to set aside anything they have heard and render a verdict based solely on the evidence presented at trial,” Mr. Ebert wrote.

His main concern is that the defense might request trial by judge, only to announce a change of mind when the trial date arrives, in an effort to buy more time. The trial is scheduled to start Oct. 14.

Mr. Ebert also argued that the trial does not need to be moved just because Mr. Muhammad is charged with intent to intimidate the public under Virginia’s new anti-terrorism law.

Intent to intimidate does not prove the public, or all members of it, were intimidated, the prosecution wrote.

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