- The Washington Times - Tuesday, September 7, 2004

Attorneys for convicted sniper John Allen Muhammad cited new documents yesterday that they say bolster an irrefutable case that a prosecutorial blunder denied their client his right to a speedy trial in a second death-penalty prosecution.

Muhammad’s attorneys say their client’s pending capital-murder trial in Fairfax County, scheduled for October, should have begun months ago in order to comply with speedy-trial guarantees in the Virginia and U.S. constitutions.

If Circuit Judge Jonathan Thacher rules in Muhammad’s favor, Fairfax County would be barred from prosecuting Muhammad for the Oct. 14, 2002, shooting death of FBI analyst Linda Franklin, one of 10 random sniper killings that terrorized the Washington area in a three-week span.

A similar problem would plague a potential death-penalty case in Spotsylvania County, but cases in Maryland, the District and other states, including Alabama and Louisiana, would not be affected.

Muhammad was convicted and sentenced to death last year for killing Dean Harold Meyers in Manassas , but Fairfax County Commonwealth’s Attorney Robert F. Horan Jr. has said a second prosecution is needed in case the initial conviction or sentence is overturned on appeal.

Virginia law guarantees a trial within five months of arrest unless a defendant waives that right. Prosecutors have argued that Muhammad’s speedy-trial rights did not become effective until May, when he was arrested specifically for Mrs. Franklin’s killing.

Defense attorneys contend that the clock began ticking in November 2002, when Muhammad was indicted for the killing.

Much of the legal debate has centered on when Fairfax County sought to detain Muhammad for the killing. Legal precedent from Virginia appellate courts indicates that date might be more important than either his indictment or his formal arrest date, and Judge Thacher focused arguments on that issue during an Aug. 30 hearing.

Muhammad’s attorneys submitted documents made public yesterday showing that Fairfax County police submitted what is called a detainer in January to Muhammad’s jailers in Prince William County, notifying them of the capital-murder charges that Muhammad faced in Fairfax.

Defense attorneys characterize the detainer as Fairfax County’s formal notification to Prince William County that they want Muhammad held. Mr. Horan argued that the detainer was not a request to hold Muhammad, only a technical notification given to a neighboring county.

Mr. Horan suggested during the Aug. 30 hearing that seeking Muhammad’s immediate prosecution in Fairfax would have been folly because the case in Prince William County was moving forward and that defense attorneys would have griped about being double-teamed by prosecutors.

But the fact that the detainer was not submitted until January 2004, after Muhammad already had been convicted in Prince William County but before he was sentenced, would seem to bolster the defense argument that Fairfax County submitted it with the intention of seeking Muhammad’s detention as his case in Prince William county wrapped up.

“The United States Constitution and Virginia law does not permit the Commonwealth’s Attorney to simply ignore Mr. Muhammad’s presence in a neighboring county and withhold action on his pleasure on a pending death indictment,” wrote defense attorneys Peter D. Greenspun and Jonathan Shapiro.

Mr. Horan did not return calls seeking comment yesterday.

In court papers, prosecutors pointed out that even after Fairfax filed the detainer, Prince William shipped Muhammad to death row at a state prison in Sussex, rather than sending him to Fairfax. If Fairfax truly had been seeking to hold Muhammad, they argue, he would have gone to Fairfax before Sussex.

“The Commonwealth never trifled with this defendant or the justice system,” wrote Deputy Commonwealth’s Attorney Raymond Morrogh. “The Commonwealth simply waited until Muhammad’s lawyers were finished trying the case [in Prince William County]. … This was the fair and orderly thing to do, and it hasn’t resulted in an ounce of harm to Muhammad.”

Prosecutors filed an additional motion yesterday asking Judge Thacher to defer ruling on the issue until an additional hearing can be held later this month.

Joseph Bowman, a lawyer who has handled death-penalty cases in Virginia, said it will be interesting to see Judge Thacher’s ruling on the issue because “Virginia is notoriously strict about enforcement of the speedy-trial act.”

Questions about detainers, he said, “can cause huge confusion in speedy-trial act calculations.”

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