- The Washington Times - Saturday, August 8, 2009

A federal appeals court Friday upheld the death sentence of John Allen Muhammad, bringing the convicted sniper closer to execution.

A three-judge panel of the 4th U.S. Circuit Court of Appeals issued the unanimous ruling, which upheld a U.S. District Court ruling last year.

“After a full review of the record and Muhammad’s claims, we conclude that we must affirm the decision of the district court,” Judge Roger L. Gregory wrote. He was joined in the decision by Judge Diana Gribbon Motz and Judge Allyson K. Duncan.

Muhammad’s appeals are nearly exhausted, with several state and federal courts upholding his death sentence or declining to hear his appeals. Jonathan P. Sheldon, Muhammad’s attorney, told the Associated Press in an e-mail that he would appeal the decision to the U.S. Supreme Court.

Muhammad and his then-teenage accomplice, Lee Boyd Malvo, killed 10 people and wounded six in four states and the District during a violent shooting spree in the fall of 2002. Malvo was sentenced to life in prison for the crimes.

Muhammad’s appeal, argued before the court in May, questioned the competence of his defense team, suggesting that his attorneys should have made the judge aware that Muhammad was not competent to defend himself.

“Even if we assume that his attorneys should have objected to Muhammad’s self-representation, the state and district courts found that Muhammad did not show that he was prejudiced, since he represented himself for only two days during the government’s presentation of its case, and his defense attorneys were heavily involved as standby counsel, preserving objections to the government’s evidence and attempting to ‘play as full a role as the court [would] allow,’ ” Judge Gregory said.

The judges also ruled against Muhammad on claims that prosecutors withheld exculpatory evidence from him.

Muhammad’s lawyers said that after his Virginia trial, lawyers that represented him in Maryland belatedly gave his Virginia lawyers a DVD containing 30,000 pages of discovery evidence available to officials in all the jurisdictions where the crimes took place.

His lawyers argued that the evidence would have changed the outcome of his Virginia trial. Among the evidence, they said an FBI profile prepared during the investigation suggested the sniper likely acted alone and that would have contradicted expert testimony that said the crimes were committed by a team of shooters.

The judges said the profile itself noted the information it contained was speculative, so the evidence could not be considered exculpatory.

Muhammad also took issue with evidence presented from other shootings attributed to him that was used to meet the standard of two killings within a three-year period required for a death sentence. The judges dismissed some of the claims because the evidence was not exculpatory and some because of procedural errors. But the judges also said Muhammad’s lawyers did not prove the nondisclosure affected the outcome of his case.

“The jury determined that he murdered several people, the evidence against him in most instances was compelling, and any number of the killings could serve as the one predicate killing necessary for his conviction,” Judge Gregory wrote.

However, the judges also chastised the attorney general’s office for not providing the materials.

“As a matter of practice, the prosecution should err on the side of disclosure, especially when a defendant is facing the specter of execution,” Judge Gregory said. “While not admirable, the commonwealth’s actions did not violate the Constitution. Even if the withheld evidence were exculpatory, Muhammad cannot show that he was prejudiced by any nondisclosure.”

Muhammad’s lawyer did not return a phone call seeking comment Friday.

Virginia Attorney General William C. Mims said he was “pleased” with the court’s decision.

Prince William County Commonwealth’s Attorney Paul S. Ebert, who prosecuted Muhammad, said the decision brings the state closer to being able to execute Muhammad.

“Hopefully Mr. Muhammad will be meeting his maker in the near future,” Mr. Ebert said.

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