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A Virginia judge has prohibited the family of a murderer recently executed by the state from scattering his ashes on the graves of his victims. The injunction was brought against the family of Daniel L. Zirkle, who killed his 4-year-old daughter, Christina Zirkle, and her 14-year-old half-sister Jessica Shifflett, in 1999. Richmond, Va.-based Hunton & Williams partner Edward Fuhr and associate Eric Feiler took the case pro bono on behalf of the mother of the two girls. They were not opposed. Zirkle stabbed the two girls to death in August 1999 and then attempted to commit suicide. He pleaded guilty to the murders, instructed his attorneys not to present mitigating evidence and waived his right to appeal. He was executed by lethal injection on April 2. The day before his death he told a prison guard, Cynthia Bhuya, that he had instructed his family to have his body cremated. He told her that his brothers and sisters would put some of his remains in crosses and wear them to the cemetery. They would then sprinkle the ashes over the gravesites of Christina and Jessica. Zirkle told Bhuya that he knew Barbara Shifflett, the mother of the two girls, did not want his remains scattered on the gravesite but that he trusted his family to carry out his dying wish. Fuhr said he believes Zirkle wanted his ashes put on the girl’s graves out of anger at their mother. Shifflett and Zirkle lived together from 1992 to 1999. In April 1999, Shifflett obtained a protective order against Zirkle after he assaulted her. The following day, Zirkle violated the protective order and again assaulted Shifflett. He was arrested and convicted of assault and battery and jailed for several months. Shortly after his release, he killed the two girls. Hunton & Williams’ Fuhr got the case because the attorney general’s office became aware of Zirkle’s threat through the guard, but could not take any action. Fuhr got the call late on April 2, a couple of hours before Zirkle was executed. He and Feiler, attorneys in the Richmond, Va., office, were working late preparing for a Virginia Supreme Court argument scheduled for the next afternoon. Fuhr said he looked for someone else who had less pressing assignments but there was no one else available. So the two lawyers took on the case. They learned that the state could hold the body for three days after the execution, after which it would be turned over to Zirkle’s sister, Sharon Driver. That gave the lawyers until April 5 to take action. They quickly determined that an injunction was the best route and the only way to stop the harm from occurring. In his papers, Fuhr argued that spreading Zirkle’s ashes would be unlawful because it would represent desecration of a gravesite, trespass and intentional infliction of emotional distress. Although there is no way of ensuring that the family doesn’t visit the rural cemetery, Fuhr said that violating the order would also carry civil and maybe even criminal contempt penalties. “The stakes are raised substantially if anyone in Zirkle’s family attempt to desecrate the graves in any way.” Fuhr, who handles corporate litigation, said the case actually demanded some of the same skills as his regular practice. “You have to figure out who to sue, then draw on traditional civil litigation skills — do an intense factual review, piece together what happens to the body, the timetable and legal standing of the person who gets Zirkle’s body,” Fuhr said. “A lot of the procedural issue we had to work on through the night for a couple of nights to get figured out.” Circuit Court Judge John McGrath ruled that Zirkle’s family is enjoined from disposing of any of Zirkle’s remains in a manner likely to bring them into contact with the gravesites of the two girls. They are also forbidden to give the ashes to anyone else for the purpose of putting them on the graves. And they are forbidden from entering the cemetery where the graves are located. The temporary restraining order is in place until May 17, by which point, Fuhr expects to have obtained a permanent restraining order. Sharon Driver was not represented by counsel and did not put in an appearance. She could not be reached for comment.

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