- The Washington Times - Monday, June 16, 2003

MANASSAS — Attorneys for sniper suspect John Allen Muhammad asked yesterday for a trial by judge instead of trial by jury, arguing that it would be impossible to find a fair jury anywhere in Virginia.

If a judge does not grant the unusual request, defense attorneys will ask for a change of venue outside Prince William County, where they say pretrial publicity has been overwhelming.

Finally, the defense argues that a terrorism charge against Mr. Muhammad — one of two death-penalty charges he faces — should be tossed because the law is unconstitutionally vague.

The motion to preclude a jury trial is rare, and as a general rule prosecutors would have to agree with the request for a judge to grant it. But defense attorneys Peter Greenspun and Jonathan Shapiro argued that the unusual circumstances of the sniping case warrant a drastic step, and that prosecutors should not necessarily be able to unilaterally veto a bench trial in this case.

One of the charges against Mr. Muhammad is under a new anti-terrorism statute passed by Virginia after the September 11 attacks, which defines terrorism in part as an “attempt to intimidate the civilian population at large.”

That means that the entire population of Prince William County is a potential victim in the case, the attorneys argue. While it might be possible to simply change venue to a county that was unaffected by the sniping spree, the attorneys say it “is doubtful, however, that there will be any jurisdiction in Virginia which is free from the taint” caused by the massive publicity in the case.

Joseph Bowman, a defense attorney who has handled death-penalty cases in Virginia but is not connected to the sniping cases, said it is highly unusual to seek a bench trial and he suspects prosecutors will be unwilling to go along.

Prince William County Commonwealth’s Attorney Paul B. Ebert “is going to want this record to be as clean as possible. He does not want anything unusual in this record,” Mr. Bowman said.

Mr. Ebert could not be reached for comment last evening. He has 10 days to file a written response to the defense attorneys’ motions. A hearing is scheduled on the motions for June 30.

Mr. Muhammad and Lee Boyd Malvo, 18, have been linked to the 13 sniper shootings, including 10 deaths, in Virginia, Maryland and the District.

Prosecutors say the shootings during a three-week spree in October were part of a scheme to extort $10 million from the government.

The defense attorneys have argued there is no evidence linking their client to the crime for which he is charged — the Oct. 9 fatal shooting of Dean Harold Meyers at a Manassas-area gas station.

Prosecutors have responded that Mr. Malvo and Mr. Muhammad worked as a sniper team and that it is irrelevant who pulled the trigger in the Meyers shooting.

Defense attorneys may hope that a judge rather than a jury would be more likely to parse distinctions between the pair in such a notorious case. Still, Mr. Bowman said he would never seek to waive a jury trial, which provides a defendant one of his best constitutional protections.

“When the commonwealth has to convince 12 people beyond a reasonable doubt, that’s a lot more difficult than convincing one judge beyond a reasonable doubt,” Mr. Bowman said.

Attorneys for Mr. Malvo, who is to be tried in Fairfax County in the shooting death of Linda Franklin at the Falls Church Home Depot, have sought a change of venue but never requested a bench trial. The judge in that case has yet to rule on the request for a change of venue.

The challenge to the terrorism law had long been expected. The law has never been used in a prosecution and is thus uncharted legal waters.

Defense attorneys say the specific language defining terrorism is too vague and therefore encourages “arbitrary and selective application of the death penalty.”

“[I]n enacting legislation to address ‘evil masterminds,’ such as Osama Bin Laden, the Virginia General Assembly created an unconstitutionally vague statutory scheme which fails at the most basic level to properly define the offense,” the attorneys wrote.

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