- The Washington Times - Thursday, May 29, 2003

MANASSAS — Prince William County prosecutors accused sniper suspect John Allen Muhammad of organizing a “killing team” to carry out the October sniper attacks, and a judge refused to dismiss one of two capital murder charges during a lengthy pretrial hearing yesterday.

Attorneys for Mr. Muhammad, 42, argued that their client could not be charged with capital murder, which carries the death penalty, because fellow sniper suspect Lee Boyd Malvo has confessed to shooting Dean Harold Meyers of Gaithersburg outside a Manassas-area gas station Oct. 9.

Prosecutors argued that regardless of who pulled the trigger, Mr. Muhammad was the “instigator and moving spirit” behind the fatal shooting.

Mr. Muhammad and Mr. Malvo, 18, have been linked to 20 shootings, including 13 deaths, in the District, Maryland, Virginia, Georgia, Alabama and Louisiana.

Mr. Malvo has been charged with the Oct. 14 shooting of FBI analyst Linda Franklin, 47, outside the Falls Church Home Depot.

Prosecutors have said the three-week shooting spree was part of a scheme to extort $10 million from the government.

“It [was] similar to a business venture … with risks involved in anticipation of a payoff,” said Richard A. Conway, Prince William County assistant commonwealth’s attorney.

Circuit Judge LeRoy F. Millette Jr. denied the defense’s motion, saying it was premature to dismiss the capital murder charges.

“I don’t think it’s appropriate to dismiss the indictment when I don’t know what the evidence is going to be,” he said.

Judge Millette denied nine of 10 motions yesterday from Mr. Muhammad’s attorneys, who filed them to dismiss the indictment and gain more information on the prosecution’s evidence.

Most of the four-hour hearing focused on the question of who pulled the trigger on the Bushmaster semiautomatic rifle that authorities say was used in the Meyers shooting.

“Our courts have been explicit that you are not eligible for the death penalty unless you were the killing agent,” said defense attorney Jonathan Shapiro. “Unless you pull the trigger, plunge the knife, pour the gasoline, unless your act is the homicidal act, you cannot be tried under the death penalty.

“We have a pretty good grasp of the evidence here,” he continued. “Not a bit of it would rise to the level of first-degree culpability.”

Prosecutors said it did not matter who pulled the trigger.

“They formed a killing team,” Mr. Conway said. “It may have been cowardly, but it was effective. The defendant was at least an equal participant, but more likely the team captain.”

He also said the prosecution team knows more than it has disclosed.

“With all due respect, [Mr. Shapiro] doesn’t know all the evidence,” Mr. Conway said.

Mr. Shapiro adopted Mr. Conway’s phrase in his response.

“You can be a member of a killing team, but being a member of a killing team does not get you the death penalty,” he said. “That’s the crux of this case.”

The second capital murder count against Mr. Muhammad explicitly allows the death penalty regardless of who pulled the trigger. But the charge falls under an antiterrorism law enacted after the September 11 attacks, and the law is subject to a challenge about its constitutionality.

Among the motions dismissed was one that the indictments should be dropped because the court failed to ensure that the grand jurors who indicted Mr. Muhammad were people “of honesty, intelligence and good demeanor,” as required by Virginia law. The defense attorneys said it is impossible meet such a standard.

On another issue, Judge Millette ruled that prosecutors can discuss Mr. Muhammad’s case publicly, but instructed both sides to work out an agreement that will allow authorities to arrest any law-enforcement sources who leak details on the case to the media.

The ruling stopped short of the sweeping gag order sought by Mr. Muhammad’s attorneys, who declined to comment after the hearing.

This story is based in part on wire service reports.

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