Thursday, July 29, 2004

A Fairfax County judge yesterday refused to bar Fairfax County Commonwealth’s Attorney Robert F. Horan Jr. from prosecuting convicted sniper John Allen Muhammad.

Fairfax County Circuit Judge Jonathan Thacher rejected defense attorneys’ arguments that Mr. Horan must recuse himself from Muhammad’s upcoming trial because he successfully prosecuted fellow sniper Lee Boyd Malvo for the same slaying last year.

Muhammad, 43, is scheduled to stand trial Oct. 4 for capital murder in the Oct. 14, 2002, fatal shooting of FBI analyst Linda Franklin.

At yesterday’s court hearing, defense attorney Jonathan Shapiro argued the case built against Malvo, 19, last year would contradict the case Fairfax prosecutors are preparing against Muhammad. He argued Mr. Horan last year portrayed Malvo as the triggerman who acted as a “free agent and did what he wanted to” when he shot Mrs. Franklin, 47, outside a Home Depot in Falls Church.

Mr. Shapiro argued that Mr. Horan would have to testify at the Muhammad trial about the inconsistency of the two cases, a move that would have precluded him, and possibly his office, from prosecuting the case.

Mr. Horan told the judge he would present the same murdertheory in Muhammad’s trial as he did in the Malvo case.

“Yes, Malvo was the shooter of Linda Franklin,” Mr. Horan argued, “but the guy calling the shots was John Muhammad. … Muhammad is in charge. We never argued that Muhammad is on the sidelines letting Malvo do whatever he wants.”

Mr. Horan argued the two men were “a team of snipers,” where one was the shooter and the other was the spotter. “The shooter had to rely on the spotter to tell him when it was clear to shoot,” he said. “My position is they are partners who teamed up to commit these terrible killings.”

Muhammad would face the death penalty again on two counts of capital murder, one under a serial killer statute and the other under Virginia’s terrorism law.

Mrs. Franklin was one of 10 persons fatally shot during a three-week sniper spree in the Washington area.

Three others were wounded. Muhammad and Malvo each were convicted on identical capital murder counts late last year for their roles in the sniper shootings.

Last December, a jury in Chesapeake, Va. convicted Malvo of murdering Mrs. Franklin and a judge later sentenced him to life in prison. Prosecutors will not decide whether to prosecute Malvo, who was 17 at the time of the slayings, again until the U.S. Supreme Court decides whether executing juveniles is constitutional.

Last November, a jury in Virginia Beach convicted Muhammad of the Oct. 9, 2002 murder of Dean Harold Meyers, 53, at a Manassas gas station. A judge accepted the jury’s recommended punishment and sentenced Muhammad to death. His attorneys are appealing the conviction.

Prosecutors are putting him on trial for Mrs. Franklin’s killing, saying a second death sentence is needed in case the first is overturned on appeal.

Judge Thacher also denied defense motions to dismiss one of the capital murder charges and to have the court pay for a jury selection specialist to assist the defense team.

Yesterday’s hearing was delayed briefly after Muhammad wriggled out of a chain strapped around his waist during a recess. The proceedings were stopped and Muhammad was escorted by deputies to a holding cell.

Muhammad, dressed in a green prison jump suit, returned a short time later with the waist chain in place.

“This is the one and only security violation I will tolerate,” Judge Thacher told Muhammad. The judge warned Muhammad he would place him in leg irons and possibly strap him into a “security chair” if he created another incident.

Muhammad’s attorneys told the judge that their client did not try to “slip chains.” They also told the judge that Muhammad had a different account of the incident than the deputies, but they did not relate his account in court.

After a recess for lunch, Muhammad returned to the courtroom without the waist chain.

The judge will hear the next round of motions Aug. 30.

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