- The Washington Times - Wednesday, September 22, 2004

The new judge presiding over the second trial of sniper John Allen Muhammad established yesterday that he will seriously consider defense requests to dismiss the case.

During a nearly four-hour hearing, Fairfax County Circuit Judge M. Langhorne Keith disagreed with county Commonwealth’s Attorney Robert F. Horan Jr.on whether Muhammad was denied his constitutional right to a speedy trial in Fairfax County.

But legal experts say Muhammad’s liberties were not violated by any delay, and even if the case is dismissed, it would be dismissed “without prejudice,” allowing prosecutors to start the case over at a high cost to taxpayers.

Judge Keith is expected to rule on the motion for dismissal by next week.

Meanwhile, transcripts of bench conferences unsealed yesterday show that Muhammad is considering defending himself again. Muhammad represented himself for a few days during his first capital murder trial last fall before he gave back the case to his court-appointed attorneys.

The speedy-trial issue is what led Fairfax County Circuit Judge Jonathan C. Thacher to conduct his own investigation into facts under dispute in pretrial proceedings.

Prosecutors argued that Judge Thacher violated the code of judicial conduct earlier this month when the judge traveled to the Prince William County jail — where Muhammad was being held before his first capital murder trial — to get documents and talk to witnesses about a motion filed by Muhammad’s attorneys.

Judge Thacher recused himself from the case Tuesday, even though he said he did nothing wrong.

Muhammad’s attorneys initially argued that their client should have stood trial in Fairfax County five months after the original indictment was issued Nov. 6, 2002. The string of sniper shootings occurred in October 2002.

However, attorneys argued yesterday whether a detainer faxed by Fairfax County police Detective Christopher Flanagan on Jan. 6 to the Prince William County jail, where Muhammad was held at the time, had activated the speedy-trial statute.

During the hearing, Detective Flanagan testified he faxed the detainer to the jail so that it would be put in Muhammad’s file, along with detainers from other jurisdictions that have charges pending against Muhammad.

Detective Flanagan told the judge after sending the fax and a teletype, he also called an officer at the jail to emphasize that Fairfax did not want to take Muhammad into custody, but rather just to put the detainer on file. He made the call at the direction of Mr. Horan, he said.

Defense attorney Peter D. Greenspun argued that case law indicates the speedy-trial statute took effect when the detainer was filed.

“If this were a [routine] burglary case, this is a no-brainer” for dismissal, Mr. Greenspun told the judge. “The notoriety of this case invites an evaluation more complicated than is necessary or appropriate.”

Mr. Horan argued the statute was not enacted until May 27 when Fairfax County police Detective June Boyle served Muhammad with the original 2002 bench warrant and took him into custody.

Mr. Horan said the detainer filed by Fairfax police was not an arrest, but a notification to the Prince William County jail that Fairfax County had charges pending. “One cannot use the word ‘detainer’ interchangeably with ‘arrest,’” he said. “Counsel has not established that this defendant was arrested.”

Judge Keith disagreed: “Doesn’t [case law] say that the lodging of a detainer … constitutes an arrest?”

Joseph Bowman, a lawyer who has defended several capital murder trials in Northern Virginia, said Virginia judges take the speedy-trial statute very seriously. But, since the detainer did not infringe on Muhammad’s rights by keeping him in custody indefinitely, Mr. Bowman said the judge might want to avoid having to restart the trial because of costs. “That would be extraordinarily expensive,” he said.

Muhammad and his accomplice, Lee Boyd Malvo, have been linked to the 13 sniper shootings that killed 10 and wounded three in the Washington area in October 2002. Both men also have been linked to nine other shootings, five fatal, nationwide.

Muhammad, 43, is charged with capital murder for the Oct. 14, 2002, fatal shooting of FBI analyst Linda Franklin, 47, outside a Falls Church Home Depot. He has been sentenced to death for the Oct. 9, 2002, fatal shooting of Dean H. Meyers, 53, at a Manassas gas station.

Malvo, 19, was sentenced to life in prison for Mrs. Franklin’s death. Authorities are waiting to see whether the U.S. Supreme Court upholds the death penalty for juvenile criminals before they proceed with further prosecutions against Malvo, who was 17 at the time of the sniper shootings.

The bench transcripts from court hearings in June and July, which were unsealed yesterday, indicate that Muhammad’s attorneys are making preparations in the event Muhammad decides to represent himself.

In the July 29 transcript, Judge Thacher acknowledged to Mr. Greenspun that he was prepared to advise Muhammad of his rights if he decides to represent himself again.

Also yesterday, Judge Keith denied a defense motion to use a juror questionnaire during jury selection. The next hearing in the case has been scheduled for Oct. 18.

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