- The Washington Times - Wednesday, September 10, 2003

MANASSAS — A judge yesterday denied a request by sniper suspect John Allen Muhammad’s attorneys to close a pending hearing on the admissibility of potentially inflammatory evidence.

But Circuit Judge LeRoy F. Millette Jr. said he will take as many precautions as possible to prevent unnecessary disclosure of sensitive information at the hearing, which will take place Sept. 23.

Defense attorneys filed a motion Tuesday seeking to exclude at least 17 pieces of evidence from trial. The motion was filed under seal, so it is not known exactly what evidence the defense wants excluded.

In court yesterday, defense attorney Jonathan Shapiro said some of the evidence is clearly unfounded and would be inadmissible at trial. Disclosing it in a hearing would unfairly taint the jury pool, he argued.

Any new evidence divulged in the weeks before the Oct. 14 trial “is going to be chewed up and spewed out by the media,” Mr. Shapiro said.

One item that he specifically objects to is a statement purportedly made by Mr. Muhammad that “America got what it deserved” after the September 11 attacks.

That bit of evidence was one of about a dozen bad acts purportedly committed by Mr. Muhammad that was inadvertently released to the public, even though it was supposed to have been under seal. It is presumed that the defense is seeking to exclude many of those bad acts, which include the mugging of an elderly Arizona man in 2002, and the theft of the Bushmaster .223 rifle from a Tacoma, Wash., gun shop that authorities say was used during the sniper spree in October.

The defense team has previously argued that any comment Mr. Muhammad may have made about the September 11 terrorist attacks is irrelevant to the case and protected free speech.

Judge Millette said some damaging disclosures could be avoided by referring to specific evidence by number instead of saying it out loud in open court.

Prosecutors and lawyers for The Washington Post, the Baltimore Sun, the New York Times and the Richmond Times-Dispatch sought to keep the hearing open. The press lawyers objected to Judge Millette’s decision to refer to some of the items in the hearing by number.

Also yesterday, Judge Millette approved a prosecutor’s motion to hire psychologist Park Dietz to evaluate Mr. Muhammad but ruled, over prosecutors’ objections, that Mr. Muhammad will not have to discuss his state of mind at the time of the shootings, saying that would unfairly burden his right to remain silent.

Mr. Dietz has testified for the prosecution in several high-profile national cases, including Andrea Yates, the Texas mother sentenced to life in prison for drowning her five children.

Also, Judge Millette rejected efforts by the defense team to have Virginia’s death penalty declared unconstitutional. They presented evidence of errors and uneven application of Virginia’s death penalty law that they said violate Supreme Court rulings that forbid capital punishment from being applied arbitrarily. But Judge Millette agreed with prosecutors who said the death penalty’s constitutionality is well established.

Mr. Muhammad, 42, and Lee Boyd Malvo, 18, have been charged with 13 shootings, including 10 deaths, over a three-week span in October in Virginia, Maryland and the District. They are also suspected or charged with shootings in Georgia, Alabama, Louisiana, Arizona and Washington state.

Mr. Muhammad goes on trial Oct. 14 in Virginia Beach for the shooting of Dean Harold Meyers outside a Manassas-area gas station. The trial was moved from Prince William County.

Mr. Malvo goes on trial Nov. 10 in Chesapeake, Va., in the shooting of Linda Franklin in the garage at the Falls Church Home Depot. His trial was moved from Fairfax County.

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