- The Washington Times - Wednesday, December 3, 2003

There’s a war between the states brewing over who gets the next shot at prosecuting John Allen Muhammad and his accomplice Lee Boyd Malvo.

A scheduled arraignment of the accused snipers in Baton Rouge, La., yesterday was postponed until May 3, when Louisiana officials expect trials and sentencing in Virginia to have been completed.

Muhammad, 42, was sentenced to death for killing Dean Harold Meyers in Prince William County. Mr. Malvo is on trial in Chesapeake, Va., in the death of Linda Franklin in Fairfax County. Both shootings occurred in October 2002. They are accused of 13 sniper shootings that left 10 persons dead and three wounded in the Washington area that month.

John Sinquefield, first district attorney for East Baton Rouge Parish, said he intends to prosecute the pair in the Sept. 23, 2002, shooting of Hong Im Ballenger, a married mother of two who was shot outside the Beauty Depot supply store where she worked.

But Mr. Sinquefield is not sure where Louisiana stands in line.

Douglas F. Gansler, Montgomery County state’s attorney, and Ellen Brooks, state’s attorney for Montgomery, Ala., say they already have filed paperwork for their respective jurisdictions with Virginia Gov. Mark Warner requesting extradition of the two. Mr. Sinquefield said he has not filed an extradition request and does not expect to do so until the Malvo trial is over.

Mr. Sinquefield, a prosecutor for 32 years, said that he has known Fairfax County Commonwealth’s Attorney Robert F. Horan Jr. for more than 20 years and that prosecutors in Virginia have assured him of their cooperation.

“I’ve been promised cooperation by the authorities from Prince William and Fairfax counties,” he said.

But Mr. Horan said he thinks he will have the next prosecution of Muhammad, after the Malvo prosecution is completed.

Mr. Warner will have the final say on whether or where Muhammad will face his next trial. A Warner spokeswoman said a decision would not be made until at least Feb. 12, when Muhammad is sentenced. Virginia authorities say that an execution date will not be delayed because of proceedings in other states.

“I don’t know the timing of this, if they will be tried in another jurisdiction first, but a grand jury has indicted them, and we intend to try them here,” Mr. Sinquefield said.

Asked why he would like to prosecute Muhammad, even though the sniper already is facing the death penalty, Mr. Sinquefield said: “One word: Insurance.”

“Everybody has the same objective: that the victim’s family members receive justice for what happened and that Mr. Malvo and Mr. Muhammad see justice for what they’ve done.” Mr. Sinquefield said that in 10 years of prosecuting capital cases his office has won the death penalty in 22 out of 25 cases.

But other prosecutors are campaigning to get the two suspects.

Mr. Gansler, who was the first prosecutor to press charges against them after they were arrested last year, notes that most of the snipers’ victims were from Montgomery County.

“The Virginia prosecution presented a very cogent and compelling case to the jury and got the appropriate penalty. However, it certainly does not close the loop,” he said. “In Montgomery County, they would be tried for six murders simultaneously, and they would be tried together.”

He said a request by Montgomery, Ala., prosecutors last week, requesting that they try convicted sniper Muhammad next, has no legal weight. “It really has no legal impact. It may serve as a reminder.”

Mrs. Brooks wants to prosecute the pair for the Sept. 21, 2002, fatal shooting of Claudine Parker outside a liquor store in Alabama.

After the formal sentencing in February, Muhammad’s mandatory appeal process will begin in the Virginia Supreme Court.

Some lawyers say that trying the pair numerous times could jeopardize the original verdicts and sentences, especially if testimony in another prosecution conflicts with testimony in the Virginia trials. Mr. Sinquefield said he would work closely with the prosecutorial teams in Virginia to avoid that.

The U.S. Bureau of Justice Statistics estimates that convicted killers in Virginia spend about three years on death row — the shortest death-row stay of any state. The national average is 9.1 years.

If Muhammad is not tried in another jurisdiction, the state Supreme Court likely would review his case within a year after his formal sentencing and issue a written opinion a few months after that.

“It’s just a review of the law. It’s not a review of the facts,” said Joseph Bowman, a D.C. lawyer with capital-case defense experience in Northern Virginia.

If the Virginia Supreme Court rejects Muhammad’s appeal, his attorneys would then ask to be heard by the U.S. Supreme Court. “The very soonest they could be in front of the Supreme Court is two years,” Mr. Bowman said.

If the Supreme Court rejects Muhammad’s appeal or refuses to hear it, Muhammad could then begin what lawyers call a “collateral appeal” using new attorneys.

“What could come up is Muhammad’s competency and whether he was competent to waive his attorneys for those two days and represent himself,” Mr. Bowman said.

The “collateral appeal” could be taken to the Prince William Circuit Court, state Supreme Court and then U.S. Supreme Court, and then on to federal court and back to U.S. Supreme Court before coming to an end.

“Not a single one of those courts is particularly defense-oriented these days,” Mr. Bowman said.

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