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3rd death penalty attempt in Fairfax

The re-sentencing of Alfredo R. Prieto, convicted of three murders and two rapes, charged with a fourth murder and suspected of a fifth murder, will return to a Fairfax County courtroom Tuesday morning, where Fairfax prosecutors will try for a third time to obtain the death penalty.

Prieto, 44, was already on death row in California for the 1990 rape and murder of a 15-year-old girl, when DNA matched him to the rape and murder of Rachael A. Raver, and the murder of her boyfriend Warren H. Fulton III, both 22, in a vacant lot outside Reston in December 1988.

Fairfax prosecutors extradited Prieto in 2006, under the theory that Virginia could try and execute him while his California appeals dragged on. He was also charged with the May 1988 rape and murder of Veronica "Tina" Jefferson in Arlington, though Arlington prosecutors have not moved forward with that case.

He has not been charged with a fifth homicide in Prince William County in 1989, though prosecutors there have said he is the prime suspect.

The jury in Prieto's first Fairfax trial, over six weeks in 2007, found him guilty of capital murder. But during the sentencing phase, a juror rebelled, sent out notes claiming he'd been pressured by other jurors, and Judge Dennis J. Smith reluctantly declared a mistrial.

The jury in Prieto's second trial, an eight-week affair in 2008, found him guilty of capital murder and imposed two death sentences. But in 2009, the Virginia Supreme Court ruled that Judge Randy I. Bellows had given that jury an improper verdict form that didn't include all their possible options. A resentencing -- not a full retrial -- was ordered.

And that sentencing, again before Bellows, is set to begin with jury selection on Tuesday. Unlike the first two trials, longtime Fairfax Commonwealth's Attorney Robert F. Horan Jr. will not be at the prosecution table. His successor, Commonwealth's Attorney Raymond F. Morrogh, will be joined by Deputy Commonwealth's Attorney Casey Lingan.

It is not clear yet how many members of the Raver and Fulton families will attend and listen to the brutal evidence -- Horan theorized that Fulton was shot in the back of the head while on his knees, and that Raver was then shot as she ran away and raped as she lay dying.

Defending Prieto for the third time will be veteran attorneys Jonathan Shapiro and Peter D. Greenspun, appointed by the court. Court records show the defense was paid close to $360,000 for attorney and witness fees and costs in the first trial, and about $265,000 for the second trial.

Complicated legal issues loom for both sides. For the prosecution, Morrogh and Lingan must show a new jury the crimes for which Prieto was convicted in 2008, which is typically done in the "guilt-or-innocence" phase of a trial, and then argue for a death sentence.

On the other side, Greenspun and Shapiro must decide whether to raise the mitigating defense that Prieto was mentally retarded at the time of the killings, and therefore not eligible for death. That theory, based on the trauma he experienced growing up in war-torn El Salvador in the 1980s, apparently was persuasive to the juror who rebelled in the first trial. But it did not work in the second trial.

Greenspun and Shapiro have not said if they will raise the issue a third time.
A total of 300 Fairfax residents have been summoned, to be questioned about their ability to rule fairly on a death penalty case. The defense has estimated this may take two weeks, with opening statements on Sept. 21. In the two previous trials, jury selection took four days and eight days.

The sentencing trial is then expected to last through October. Bellows will preside again, after rejecting a defense request that he recuse himself because of his strong comments in imposing the jury's death sentence after the second trial.

-- Tom Jackman

By Tom Jackman  |  September 7, 2010; 6:01 AM ET
Categories:  Fairfax , From the Courthouse , Homicide , Tom Jackman , Updates  
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