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Attorneys want prosecutor barred from sniper trial

Defense: Presenting 2 theories for one murder 'unseemly'

Lee Boyd Malvo
John Allen Muhammad
Crime, Law and Justice

WASHINGTON (CNN) -- Attorneys for convicted Washington-area sniper John Allen Muhammad want the Fairfax County Commonwealth Attorney's office barred from prosecuting their client's second murder trial, court documents show.

Muhammad is set to face trial in the death of FBI analyst Linda Franklin. She was gunned down October 14, 2002, outside a Home Depot in Falls Church, Virginia, a suburb of Washington.

The attorneys said Fairfax County Prosecutor Robert Horan should not be allowed to try the case because of his involvement in the trial of Lee Boyd Malvo, Muhammad's convicted accomplice.

They also said they might call Horan as a defense witness in building their argument that Muhammad was not responsible for Franklin's death.

In Malvo's trial, Horan successfully argued that Malvo acted on his own when he shot and killed Franklin. Malvo, 19, was sentenced to life in prison without the possibility of parole.

To now argue that Muhammad was responsible for Franklin's death would be "flip-flopping," the attorneys argued, adding that conflicting prosecution theories for the same crime are "unseemly."

Horan called the motions "attorney window dressing," and said, "We took the position from day one [that Malvo and Muhammad] were partners in the enterprise.

"They've got as good of a chance having us disqualified as we would to have them disqualified."

In motions filed Thursday, attorneys Peter Greenspun and Jonathan Shapiro said the case should be moved to a county farther from Washington, where their client would have a better chance of securing an impartial jury. The previous trial was moved for similar reasons.

A hearing on the defense motions is scheduled for Thursday, but the Commonwealth Attorney's office requested a postponement.

In November, Muhammad was convicted in Virginia Beach, Virginia, of capital murder, terrorism and weapons charges in the death of Dean Harold Meyers in October 2002 outside a gas station in Manassas, Virginia. Meyers' death was part of a shooting rampage in the region that killed 10 people and wounded three.

Muhammad was sentenced to death, and the case is under appeal.

CNN's Lesa Jansen contributed to this report.

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