- The Washington Times - Monday, August 30, 2004

A Fairfax County judge yesterday rejected arguments from convicted sniper John Allen Muhammad that constitutional protections against double jeopardy prohibit a second death-penalty prosecution in the October 2002 killing spree that left 10 dead in the D.C. metropolitan area.

Muhammad was convicted and sentenced to death last year for the Oct. 9, 2002, murder of Dean Harold Meyers outside a gas station in Prince William County, one in a string of random sniper shootings over a three-week span that provoked widespread anxiety in Maryland, Virginia and the District.

Now prosecutors in neighboring Fairfax County are seeking a second capital murder conviction, this time for the Oct. 14 killing of FBI analyst Linda Franklin. Commonwealth’s Attorney Robert F. Horan Jr. said the second prosecution is necessary in case the initial death sentence is overturned on appeal.

But Muhammad’s attorneys say this second prosecution is tantamount to putting Muhammad on trial twice for the same crime. That’s because at the first trial, prosecutors had to prove not only Mr. Meyers’ murder but also a second murder to elevate the crime to capital murder and pursue the death penalty.

Prosecutors presented extensive evidence of the Franklin killing to prove multiple murders, and Muhammad’s attorney, Jonathan Shapiro, said the wording of Virginia’s capital murder statute prohibits another death-penalty prosecution. The most serious crime prosecutors could pursue, he said, was first-degree murder.

But Circuit Judge Jonathan Thacher agreed with prosecutors who said Mr. Shapiro’s argument twisted the meaning of double jeopardy.

Also yesterday, Judge Thacher delayed a ruling on defense claims that the current prosecution violates Muhammad’s right to a speedy trial.

Defense attorney Peter Greenspun said that because Muhammad was indicted for Mrs. Franklin’s murder in November 2002, he was entitled to a trial as soon as April 2003 under Virginia’s speedy trial law.

“I understand that we are asking for absolute dismissal with prejudice of one of the most significant criminal prosecutions ever visited in Northern Virginia,” Mr. Greenspun said. But “there is no way to get around the interpretation of this statute. … There is no adequate response that takes the commonwealth off the hook.”

Mr. Horan said the Virginia law requiring a trial within five months starts from the time Muhammad was arrested for the Franklin killing, not from the time of indictment. He was not formally arrested for the Franklin killing until May, Mr. Horan said.

He said that if Fairfax had sought to prosecute Muhammad at the same time Prince William was prosecuting him, defense attorneys “could whine about being double-teamed. And they’d have probably had a legitimate beef.”

Today, Judge Thacher will hear arguments on a defense motion for a change of venue out of Fairfax County. The first trials of Muhammad and accomplice Lee Boyd Malvo were moved out of Northern Virginia because of the intense news coverage and the fear that swept the region during the sniper killings.

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