- The Washington Times - Wednesday, May 13, 2009

RICHMOND | Convicted D.C.-area sniper John Allen Muhammad should never have been allowed to act as his own lawyer for part of his 2003 capital murder trial, his attorney said Tuesday in a federal appeals hearing.

Muhammad’s conviction and death sentence should be thrown out because his trial lawyers failed to tell a judge that the mastermind of the 2002 shootings was too mentally impaired to represent himself, attorney Jonathan Sheldon said.

A lawyer for the state of Virginia argued that Muhammad’s competency was never an issue in his trial for one of 10 killings attributed to Muhammad and teenage accomplice Lee Boyd Malvo. Muhammad was sentenced to death, and Malvo is serving a life term for the shooting spree.

Muhammad represented himself for the first two days of his Virginia trial, making his own opening statement and questioning 18 witnesses before turning his defense over to court-appointed attorneys, who had warned him that serving as his own counsel would be a mistake.

Mr. Sheldon, who is handling Muhammad’s federal appeal, said the trial lawyers violated Muhammad’s constitutional right to effective counsel by not telling the judge about their client’s delusional statements and brain disorders stemming from childhood beatings.

“They had an absolute obligation under state law to hold a competency hearing,” Mr. Sheldon told a three-judge panel of the 4th U.S. Circuit Court of Appeals.

Katherine Burnett, the state’s senior assistant attorney general, argued that competency only became an issue in Muhammad’s later Maryland trial and that his attorneys in the Virginia case did their duty in discouraging him from representing himself.

“It was a very foolish and unwise decision,” she said. “But he wasn’t incompetent.”

She said the attorneys’ interactions with Muhammad made them best equipped to determine whether he could assist in his own defense and understand the proceedings, so their handling of the matter could not be considered unreasonable.

Judge Roger Gregory seemed skeptical of Miss Burnett’s argument, offering this hypothetical: If an attorney saw his client licking the floor of his cell, and then the client asked to represent himself, wouldn’t the attorney be obligated to tell the judge what he had witnessed?

U.S. District Judge Liam O’Grady ruled last year there was no evidence Muhammad was incompetent and unable to represent himself in his trial for the murder of Dean Meyers in Prince William County.

“Muhammad was highly lucid and coherent during trial,” Judge O’Grady wrote.

In all, 10 people were killed in four states including Alabama and Louisiana before the pair moved on to Virginia, Maryland and the District in a rampage that terrified residents of the D.C. region. Six people also were wounded.

Muhammad also raised two other issues in his Virginia appeal. He said the prosecution withheld crucial evidence, including an FBI profiler’s report that the shootings were probably the work of a lone gunman, and that the judge improperly refused to allow testimony by Muhammad’s mental health expert.

The appeals court touched on those issues only briefly during Tuesday’s 90-minute hearing.

The court usually takes a few weeks to a few months to issue a ruling.

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