Sniper suspect John Allen Muhammad’s defense team asked that charges against him be dropped Tuesday because of a book released last week that they say will damage their chance of a fair trial.
Defense attorney Jonathan Shapiro argued that some remedy was required for the damage “Sniper,” by Washington Post reporters, will cause.
Shapiro said material used in the book violated Prince William Circuit Court Judge LeRoy F. Millette Jr.’s gag order for sniper task force members.
“This was in direct violation of your order and done by people who should have known better. I’m shocked by what’s going on and we’re going to be hurt by it,” Shapiro said. “Let the order go out that the court will not be trifled with. It seems there are some people who have the mind set that, ‘This man is guilty’ and ‘Why are we wasting time?’ “
But Millette wasn’t so sure. The gag order was entered in August and verbally ordered in May, he pointed out. The leaks could have occurred before. But Shapiro argued that task force members were under an older gag order from Fairfax Judge Jane Marum Roush, who is presiding over the case of Lee Boyd Malvo’s, who is accused as Muhammad’s co-conspirator.
Millette contended the book could also help the defense.
“In one point of view, you’ve got more information than you ever would otherwise,” said Millette. He called that situation ironic as he denied all of the defense requests, adding he has “every confidence we can get a jury.”
Among the rejected requests, Shapiro and defense attorney Peter D. Greenspun posed several options they said would increase the chance of a fair trial for their client. They suggested that Millette declare a mistrial and dismiss the charges. Alternatively, they suggested postponing the trial until they could investigate the new information revealed to them in the book. If Millette wouldn’t agree to these suggestions, Shapiro asked Millette to bar the leaked evidence from the prosecution’s case, or force prosecutors to drop the death penalty.
“We’re talking about a man’s life here,” Shapiro said.
Muhammad, 42, and Lee Boyd Malvo, 18, are charged with a three-week shooting spree in the Washington, D.C., area that killed 10 people during the fall of 2002. In Prince William County, Muhammad is charged with the shooting of 53-year-old Dean Harold Meyers, who was killed while filling his gas tank at the Sudley Road Sunoco station north of Manassas.
The Post’s book advertises its information about Muhammad and Malvo as coming from FBI, Bureau of Alcohol, Tobacco and Firearms and Justice Department officials, as well as Virginia, Maryland and Washington, D.C., police officers, among other sources. Shapiro argued such information could only have come from members of the sniper task force that has been putting together evidence to prosecute Muhammad and Malvo for a year.
“They’ve gained information they’re not entitled to and they’re complaining about it,” said Commonwealth’s Attorney Paul B. Ebert. “There’s nothing I could do … I can’t go around and literally gag people if they want to talk.”
Afterwards, Shapiro said, “The judge has to call it as he sees it.”
Also Tuesday, prosecutors withdrew a subpoena for testimony from Malvo, but left open the option to reconsider. After the hearing, Greenspun said prosecutors were staging a media show when they brought Malvo into a hearing last week.
Malvo and Muhammad saw each other for the first time in a year at a hearing last week, where Malvo invoked his Fifth Amendment right against self incrimination. He answered only biographical questions.
“It was a way to get Malvo in a courtroom that Muhammad was in so all the people would come for a big story that was no story,” Greenspun told reporters after Tuesday’s hearing.
Ebert said after the hearing that he would not comment on whether or not he will bring Malvo to the stand at Muhammad’s trial. If so, his questions will have to be reviewed by Millette at trial, since Malvo wouldn’t answer Ebert’s questions about Muhammad.
Tuesday was the last pretrial hearing for Muhammad. Muhammad’s trial is scheduled to begin Oct. 14 in Virginia Beach. Malvo is scheduled to begin trial Nov. 10 in Chesapeake.