- The Washington Times - Tuesday, November 2, 2004

RICHMOND — Convicted sniper John Allen Muhammad cannot get the death penalty under a Virginia law because he was not the triggerman in the October 2002 killing spree, his attorneys argued to the Supreme Court of Virginia yesterday.

During oral arguments, Muhammad’s attorneys also said that a new counterterrorism law used to prosecute him is unconstitutional and that prosecutors unfairly offered conflicting portrayals of Muhammad and his cohort, Lee Boyd Malvo, at their respective trials.

Muhammad was convicted and sentenced to death on two counts of capital murder last year for the Oct. 9, 2002, shooting of Dean Harold Meyers near Manassas.

Defense attorney Peter D. Greenspun argued that, under one of those counts, Virginia law allows a death penalty only for the triggerman.

Prosecutors contend that Muhammad and Malvo formed a sniper team, and that each was equally culpable.

Mr. Greenspun’s assertion was challenged immediately by Justice Donald Lemons. He compared the sniper killings to a previous case in which two defendants were deemed eligible for the death penalty, one for smashing the victim’s head with a rock and the other for holding down the victim.

Mr. Greenspun said the difference in the sniper killings is that only one person, the triggerman, was involved in the physical act of the killing.

Allowing Muhammad to get the death penalty “would override two decades of jurisprudence in the commonwealth,” Mr. Greenspun said.

The maximum sentence that could be imposed on Muhammad under the triggerman rule is life in prison, the defense contends.

The second capital murder count says that the sniper killings were an act of terrorism. Under that law, Muhammad would not have to be the triggerman to get the death penalty.

But defense attorneys argued that the law is unconstitutional and was applied improperly to Muhammad when its clear intent was to punish terrorism like the September 11 attacks.

Also, throughout the respective trials of Muhammad and Malvo, prosecutors presented contradictory theories, the defense argued, depriving Muhammad of his due process rights.

Defense attorney Jonathan Shapiro said Muhammad’s prosecutors in Prince William County portrayed Muhammad as a manipulator who molded Malvo into a killer and controlled him like a puppet. Meanwhile, Malvo’s prosecutors in Fairfax County were describing the teen as a willful, independent free agent who was free of Muhammad’s influence.

“The theories in Prince William and Fairfax counties could not be more contradictory,” Mr. Shapiro said.

But Senior Assistant Attorney General Robert Harris said Malvo’s prosecutors were forced to refute an insanity defense in which Malvo contended he had been brainwashed by Muhammad.

“There’s nothing inconsistent with Fairfax prosecutors telling a jury that Malvo was not brainwashed,” Mr. Harris said. “At the core of the case, the evidence was the same, that the two men acted as a team.”

The court is expected to rule on the appeal in January. If the court rejects Muhammad’s arguments, he then can appeal to the federal courts.

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