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Judge refuses to dismiss death penalty count for sniper suspect

From CNN Correspondent Kathleen Koch
and Producer Mike M. Ahlers

John Allen Muhammad, right, in a court appearance earlier this spring.
John Allen Muhammad, right, in a court appearance earlier this spring.

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MANASSAS, Virginia (CNN) -- A Virginia judge Thursday rejected a string of motions from lawyers for accused sniper John Allen Muhammad, including a request to dismiss one of the two death-penalty counts against him.

Prince William County Circuit Judge Leroy Millette rejected all 11 motions by Muhammad's lawyers at a pre-trial hearing Thursday, including efforts to have Virginia's death penalty statute ruled unconstitutional and to bar victim-impact testimony from families of those killed.

Muhammad's lawyers argued that prosecutors failed to specify whether he was the triggerman in the October 9, 2002, shooting of Dean Harold Meyers at a Manassas gas station. Meyers was one of 10 people killed in a string of sniper attacks in Maryland, Virginia and the District of Columbia last fall.

Under long-standing Virginia precedent, only the triggerman could be exposed to the death penalty, defense attorneys said.

"Unless you pull the trigger, plunge the knife, unless your act is the homicidal act, you're not eligible for the death penalty," defense attorney Jonathan Shapiro said.

He argued co-defendant Lee Boyd Malvo has reportedly claimed he was the triggerman in the shooting of Meyers, and he questioned how prosecutors in two different counties could be giving competing theories.

"The facts shouldn't change when you step across the border from Fairfax county into Prince William County," he said. "We believe it is grossly improper, especially in a death case, to claim different things in different courts."

Prosecutor Richard Conway said, "What they did is they formed a killing team. It was cowardly but effective. Muhammad was at least a member of the team, but more likely the captain."

While Muhammad faces trial in Prince William County for Meyers' killing, Malvo faces trial in neighboring Fairfax County for the October 14, 2002, shooting of Linda Franklin outside a Home Depot. Investigators also have linked Muhammad and Malvo to slayings in Louisiana, Alabama, Georgia, and Washington state.

Muhammad's lawyers also argued that prosecutors could not seek the death penalty for Muhammad by claiming that the crime had a special "vileness," since the victims were killed by single shots from long distances.

But prosecutor James Willett said autopsy photos of the victims were "profound and difficult to see."

"I've never seen anything like them," he said. "I never understood the physical impact a high-powered rifle has on the body."

Earlier in the day, Millette refused a request by the defense for a gag order, saying it would be "draconian" to do so. But the judge said he would sign a more limited order similar to one signed by the judge in Malvo's case.

In that case, a judge's order instructs Fairfax County police to comply with their department's general orders limiting the information they can release to the press and the public.

The Washington Post opposed a gag order, saying there was no evidence the information released to the media would hurt Muhammad's chances of getting a fair trial.

Since his last court appearance a month ago, Muhammad's attorneys had filed 11 motions, challenging points such as the selection of the grand jurors who indicted Muhammad.

Defense lawyers argued that the court failed to ascertain whether the grand jurors were honest, intelligent and of good demeanor, as required by law. Millette denied that motion, as well.

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