- The Washington Times - Monday, November 24, 2003

Convicted sniper John Allen Muhammad will not know if he faces additional prosecution until he is sentenced early next year, a spokeswoman for Virginia Gov. Mark Warner said yesterday.

Muhammad, 42, was given a death sentence by a jury yesterday in Virginia Beach for the Prince William County shooting death of Dean Harold Meyers, 53, of Gaithersburg. Legal analysts say Muhammad could be kept on death row to ride out his appeals, he could face additional charges in Virginia, or he could be sent to any of the other jurisdictions where he faces prosecution.

Muhammad and fellow sniper suspect Lee Boyd Malvo also are believed to be responsible for other killings in Virginia, Maryland, the District, Alabama, Georgia, Louisiana, Washington and Arizona.

Mr. Malvo, 18, currently is on trial in Chesapeake, Va., for the shooting death of FBI analyst Linda Franklin, 47, in Fairfax County.

The decision about if or where the pair could face charges next rests with Mr. Warner. Ellen Qualls, a spokeswoman for Mr. Warner, a Democrat, said the governor’s counsel is consulting with Maryland Gov. Robert L. Ehrlich Jr.’s counsel, as well as the Virginia Attorney General’s Office to decide what will come next.

“It is our expectation that no decisions would be made prior to Mr. Muhammad’s sentencing February 12th,” Miss Qualls said.

Fairfax County Commonwealth’s Attorney Robert F. Horan Jr. said yesterday he fully expects to prosecute Muhammad next for the case Mr. Malvo currently is being tried for, and to have Mr. Malvo sent to Prince William County to answer for the killing for which Muhammad was just convicted.

“I’m sure they will,” Mr. Horan said yesterday. He said despite the sentence of death in the Muhammad case, there is no guarantee that his conviction won’t be overturned or his sentence commuted on appeal. “It will be five years before these verdicts are final,” he said.

Prince William County Commonwealth’s Attorney Paul B. Ebert said he would like to prosecute Mr. Malvo, but seemed less certain than Mr. Horan that he would get the teen next.

“We intend to try him,” Mr. Ebert said. “I don’t know if we’re next in line.” Mr. Ebert also said he would be in favor of Muhammad and Mr. Malvo facing trials outside of Virginia.

Miss Qualls declined to speculate yesterday on whether Mr. Warner would consider the unusual step of letting a death-row prisoner out of the state to face trial. She said so far no jurisdiction has filed a petition with the governor to have the pair extradited to face charges.

“We’re not in receipt of requests from any other states currently,” she said.

But Montgomery County State’s Attorney Douglas F. Gansler said he has filed a detainer, which he said is the same thing as an extradition request. And he said he is aware of similar requests from other states.

Mr. Gansler said despite the fact that Montgomery County was “disproportionately affected” by the sniper shootings, he was uncertain whether he would ever be able to prosecute the sniper suspects.

“I don’t know,” he said. “Clearly there’s a public interest. There’s no real cost associated with it. It’s something that’s within our control. We certainly would be prepared to go forward.”

Mr. Gansler, though, seemed to have softened in his resolve to prosecute the pair, who are accused of six killings in the county during the three-week shooting spate in October 2002.

“I do think the positive resolution in Virginia is a giant step toward closure,” he said. “A jury has held somebody accountable for shootings, albeit shootings that occurred in a different state and hundreds of miles from here.”

In Atlanta, where Muhammad and Mr. Malvo have not been charged but are believed to be responsible for the Sept. 21, 2002, shooting death of liquor store clerk Million A. Woldemariam, prosecutors say they are taking a “wait-and-see posture.”

“It is not a case that is replete with a great deal of evidence,” said Fulton County District Attorney Paul L. Howard. “It looks like the punishment [in Virginia] is going to be an appropriate one. When you couple that with the evidence we have, we think it makes sense just to wait.”

Virginia inmates, on average, have the shortest stay on death row, when compared with condemned prisoners in the federal prison system or any other state that allows execution, according to a report released this month by the U.S. Bureau of Justice Statistics.

Virginia prisoners have spent an average of three years on death row, the report said.

The wait time between sentencing and execution is occupied with appeals — a process Virginia has streamlined to become the most efficient in the nation.

The state has a statutory obligation to grant any prisoner sentenced to death an automatic appeal to the Virginia Supreme Court. The review would include a range of issues, such as the nature of instructions to the jury and whether the death sentence was handed down fairly.

The court also would review issues specific to the Muhammad case, such as the first application of the state’s antiterrorism law and interpretation of the triggerman statute.

Legal analysts say that those issues could provide rich grounds for appeal, though the state Supreme Court is historically reluctant to overturn a death sentence. Some questioned whether it makes sense to prosecute the sniper suspects in Virginia again, since all subsequent convictions would involve statutes under review by the state Supreme Court.

Another issue that could be raised is whether prosecuting Muhammad and Mr. Malvo for another crime could be a violation of their Fifth Amendment rights not to be tried twice for the same offense. To get a capital conviction in Virginia, prosecutors had to prove that each man was responsible for more than one killing in a three-year period. Mr. Horan and Mr. Ebert presented evidence in 16 shootings during their prosecutions.

Tim Murtaugh, a spokesman for Virginia Attorney General Jerry Kilgore, declined to comment directly on the issue, but he said Virginia is “blessed with the finest and most experienced prosecutors of any state in the country.”

Mr. Gansler said with different laws from state to state, there were “absolutely no double jeopardy issues” in prosecuting Muhammad and Mr. Malvo in another state.

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