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Indctiments flawed huhammad claims { May 16 2003 } Original Source Link: (May no longer be active)
http://www.washingtonpost.com/wp-dyn/articles/A61657-2003May15.htmlhttp://www.washingtonpost.com/wp-dyn/articles/A61657-2003May15.html
Indictments Flawed, Muhammad Claims
Lawyers Seek Reduction of Charges
By Josh White and Tom Jackman
Washington Post Staff Writers
Friday, May 16, 2003; Page B04
Attorneys for sniper suspect John Allen Muhammad contend that capital murder indictments against him in Prince William County are legally flawed, and they asked a judge to reduce the charges to first-degree murder or dismiss them entirely.
In court papers filed yesterday, lawyers Peter D. Greenspun and Jonathan Shapiro also argue that Prince William's system of selecting grand jury panelists does not adhere to state law. They also asked Circuit Court Judge LeRoy F. Millette Jr. to issue a wide-ranging gag order that would prohibit anyone involved in the case from discussing it publicly.
In Fairfax County, attorneys for Lee Boyd Malvo, who is also charged in last fall's shootings, asked the court for more information about ballistics evidence and renewed a request for a handwriting expert. In addition, they asked a judge to move the case out of Fairfax County because of what they said was prejudicial pretrial publicity in the string of 13 area shootings that killed 10 people.
The motions in both cases continued to get at the heart of some of the legal debates that will lead up to the fall trials. Muhammad's attorneys again raised the importance of the issue of who fired the shot that killed Dean Harold Meyers, 53, at a gas station north of Manassas on Oct. 9. They claimed that one of the indictments is not specific enough about their client's alleged role in the shooting and therefore does not warrant a death sentence.
The attorneys argued that a grand jury should have had to specify whether Muhammad, 42, was a principal in the first degree or a principal in the second degree to the crime -- legal concepts that would define his level of involvement in the slaying. Greenspun and Shapiro say prosecutors have to show that Muhammad "was the agent who caused, directly, the victim's death," and they argued that "no fact would support a claim that Mr. Muhammad was so situated."
"Nothing in [the indictment] indicates whether the grand jurors intended that Mr. Muhammad was a principal in the first degree or a principal in the second degree," the attorneys wrote.
Muhammad's defense team has said that Malvo, in a Nov. 7 interview with police, explicitly said he shot Meyers.
Malvo is facing capital murder charges in Fairfax County in the Oct. 14 slaying of Linda Franklin, 47, at a Home Depot store in the Seven Corners area. Malvo told police he pulled the trigger in that shooting, according to law enforcement documents.
Prince William prosecutors have said that Muhammad is charged as a principal in the first degree in Meyers's slaying and that Virginia law supports the theory that a defendant does not have to be the triggerman to be convicted of capital murder.
Commonwealth's Attorney Paul B. Ebert said the indictments are proper because any capital murder charge, under Virginia law, implies a high level of involvement. "In order to be convicted of a capital offense, it would necessarily indicate that you were a principal in the first degree," Ebert said yesterday.
Greenspun and Shapiro also claimed in court papers that the indictments should be dismissed, saying the county maintains an illegal system of choosing grand jury members. The attorneys argue that there is little scrutiny of those chosen to serve on grand juries and that jurors do not have to pass the same tests that trial jurors do, such as being questioned by lawyers about their backgrounds.
Bob Marsh, administrator of the county's Circuit Court, said yesterday that he believes the grand jury system is sound. Marsh said the annual pool is chosen from among people who have been summoned for jury duty at least three times. Most, if not all, have served on previous trial juries, he said.
"They're even more qualified than the pool that is called in for trial juries," Marsh said. "We investigate their backgrounds."
The lawyers also asked Millette to issue an order that would prohibit anyone involved in the sniper investigation or the trials from speaking to the media about any element of the case, including legal theories and case strategy.
In Fairfax, Malvo's defense team yesterday filed motions seeking copies of the material used in the DNA analysis by the FBI and the notes made by the firearms examiner of the Bureau of Alcohol, Tobacco, Firearms and Explosives. They also renewed a request for a handwriting expert that previously was denied by Circuit Court Judge Jane Marum Roush. In addition, the lawyers filed a motion, as reported yesterday in The Washington Post, asking Roush to move the trial out of Fairfax because of prejudicial pretrial publicity.
Handwritten notes were found at the scenes of two of the sniper shootings, allegedly demanding a $10 million payment and providing instructions to police on how to make the payment. In March, Fairfax Commonwealth's Attorney Robert F. Horan Jr. said prosecutors did not plan to prove that Malvo wrote the notes, only that they were written by the same person. Michael S. Arif, one of Malvo's attorneys, responded that DNA from the notes could be used to link them to Malvo, but Horan said no such evidence would be used.
Now, according to the defense motion, prosecutors have informed the defense that they plan to offer fingerprint or DNA evidence from the plastic bags that contained the two notes. Yesterday's motion by Arif and Craig S. Cooley said that evidence would be used to establish a link to Malvo and that a handwriting expert was now needed for the defense to analyze the notes inside the bags.
© 2003 The Washington Post Company
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