- The Washington Times - Monday, June 30, 2003

Attorneys for sniper suspect John Allen Muhammad withdrew a motion to preclude a trial by jury in Prince William County Circuit Court yesterday and argued instead for a change of venue.

Judge LeRoy F. Millette Jr. did not rule on the change-of-venue request, but he did deny a defense motion that challenged the constitutionality of one of the two indictments against Mr. Muhammad for capital murder.

One of the two capital murder indictments against Mr. Muhammad is filed under Virginia’s untested antiterrorism statute, which the General Assembly passed after the September 11 attacks. Defense attorney Peter D. Greenspun said the antiterrorism statute is overbroad and vague, and argued that the sniper shootings were not acts of terrorism.

Mr. Muhammad, 42, and fellow suspect Lee Boyd Malvo, 18, have been linked to the 13 sniper shootings, 10 of them fatal, in October in the metropolitan area. Mr. Muhammad, is charged with the shooting Oct. 9 of Dean H. Meyers, 53, in Manassas.

Mr. Malvo is being tried in Fairfax County Circuit Court for the shooting Oct. 14 of FBI analyst Linda Franklin, 47, in Falls Church. Mr. Malvo’s attorneys have also asked that their trial be moved and are awaiting a decision expected to come this week.

Both suspects face the death penalty if convicted.

Mr. Muhammad’s defense team filed its motion to preclude a trial by jury June 16. They argued that Judge Millette should rule out a jury trial on the grounds that it will be impossible to find a panel of fair and impartial jurors. The crime spree affected the entire area, and the case has been widely publicized, they wrote.

The state was uncomfortable with Mr. Muhammad’s constitutional right to a jury trial being taken away by the court, because of issues it might raise on appeal. Commonwealth’s Attorney Paul B. Ebert wrote in a response that if the defense wanted a bench trial, it should waive the right to a jury trial.

In court yesterday, Mr. Ebert said he was “inclined to go along with” a defense request for a bench trial. But defense attorney Jonathan Shapiro was hesitant and said the defense had yet to decide whether it wants a bench trial.

“We’ve had discussions that have been ongoing,” Mr. Shapiro said.

Mr. Greenspun said they would refile the motion to preclude a jury trial as a motion to dismiss, to be heard July 11, and Judge Millette said the defense has until a July 24 hearing to decide whether to waive their right to a jury trial.

The hearing then transitioned to arguments on the defense motion for change of venue. This was a secondary request by the defense, made moot if the trial changes from bench to jury, but Judge Millette decided to hear it anyway, as a defense waiver is now in doubt.

Mr. Greenspun argued that the trial should be moved south or west of Prince William County because county residents were directly affected by the sniper shootings, whether they were afraid for their children, felt anxious pumping gas or stuck in road blocks after a shooting.

Mr. Ebert argued that jurors could put aside their experiences and feelings to render fair and impartial judgment, and opposed the move.

Judge Millette said he had been focused on the defense request for a bench trial and that he would rule on the request later.

The judge did rule on the defense request to dismiss the indictment for capital murder under the antiterrorism statute. Mr. Greenspun argued that the statute was aimed at the “al Qaeda type of terrorism. …

“It’s aimed at some type of government or entity. It’s the entity that is of some concern.

“The prosecution is trying to fit a square peg into a round hole. They’re trying to fit what can best be described as a crime spree, as serious as that chain of events was, into this terrorism statute. It simply does not fit,” Mr. Greenspun said.

Assistant Commonwealth’s Attorney Richard A. Conway said in response, “The idea that this statute was intended to go after Osama bin Laden only is false. The activity that took place during those three weeks in October is terrorism. … The evidence is going to show this is the conduct [the statute] was designed to address.”

Judge Millette agreed: “I think the statute is indeed constitutional.”

Judge Millette also rejected a defense request to use a 37-page questionnaire during the jury-selection process. He said he might consider a resubmitted questionnaire if it is “much shorter and more fact based.”

The proposed questionnaire probed into jurors’ extended families and their feelings on the death penalty, and the prosecution opposed the invasiveness of the questions.

Mr. Muhammad, with his hair uncut and unkempt, sat still and stared straight ahead throughout the hearing, except for the few times he conferred with his attorneys.

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