FAIRFAX, Va. -- Convicted sniper John Allen Muhammad -- who briefly acted as his attorney in his first trial and told jurors he was at the fatal shooting of the man he was accused of killing -- has considered a reprise of the lawyer role for his second capital murder trial.
His attorneys informed a judge presiding over the case of that possibility during a bench conference in July, according to a transcript of the discussion that was unsealed yesterday.
"I take it what you're telling me is that I need to have my Feretta warning close," Fairfax County Circuit Judge Jonathan C. Thacher said in the bench conference, referring to the warning a judge must give a defendant who wants to act as his own attorney.
"Yes. Yes, sir," replied Peter D. Greenspun, one of Muhammad's lawyers.
Greenspun told Thacher that Muhammad would decide before going to trial in the death of FBI analyst Linda Franklin, who was killed Oct. 14, 2002, in the parking lot of a Home Depot store in Falls Church. The trial has been pushed back from October to January.
Franklin's death was among 16 sniper-style shootings, 10 of them fatal, in the Washington area about this time two years ago.
During his first trial, Muhammad stunned his lawyers by firing them without notice in court and briefly acting as his own attorney. His performance in the role was uneven.
In opening remarks, he belittled the prosecution's theory behind the fatal shooting of Dean Harold Meyers at a gas station in Manassas, Va., on Oct. 9, 2002, and said, "They wasn't there. I was. I know what happened." He also appeared to sob.
But during a cross-examination, Muhammad got a British army sniper expert to admit that items found in Muhammad's car when he was arrested -- including maps and earplugs -- could be bought in malls and used for ordinary activities, such as navigation.
His self-representation also created the peculiar situation of Muhammad questioning a man he was suspected of shooting in another sniper attack -- that one in Maryland's Prince George's County.
Muhammad gave up the lawyer role after two days, saying he changed his mind and had an abscessed tooth. He was convicted and sentenced to death. Teenager Lee Boyd Malvo was convicted last year in Franklin's death and sentenced to life without parole.
Yesterday, Muhammad's defense team fought to keep the bench conference transcripts private, arguing that it would prejudice the case. But the judge now presiding, M. Langhorne Keith, disagreed.
Keith also heard the defense request to dismiss the Fairfax charges on grounds that prosecutors violated Muhammad's right to a speedy trial -- the issue that led the previous judge, Thacher, to drop out of the case this week. Prosecutors asked Thacher to recuse himself, claiming that he improperly investigated the matter on his own initiative. Thacher denied wrongdoing.
Virginia requires that a person in custody be brought to trial within five months of arrest.
Muhammad was apprehended in October 2002 in Maryland, indicted in Virginia in Prince William and Fairfax counties, and placed in custody in Virginia the next month. Greenspun argued that Fairfax County lodged a detainer -- a notice that Muhammad faced murder charges in Franklin's death and should be held, or that the county should be notified of his pending release -- in January this year, while Muhammad was waiting for a Prince William judge to impose a sentence in the Meyers case.
"The detainer is equal to the arrest," Greenspun argued, saying the five months began in January.
But Fairfax County Commonwealth's Attorney Robert F. Horan Jr. countered that the calendar days did not start until May 27, when Muhammad was served with arrest papers on death row. He argued that a detainer is a notice and is not the same as an arrest.
Fairfax authorities did not request in January that Muhammad be arrested on the detainer, Horan said. Muhammad was in custody, he said, but for the Meyers killing in Prince William.
"Custody only applies if they are holding him on that charge," he said.
Keith did not say when he would rule on the speedy trial issue.