All around the Fairfax County courthouse, lawyers, deputies and clerks were debating Circuit Court Judge Jonathan C. Thacher's bold move last week from jurist to investigator in the John Allen Muhammad sniper case.
The verdict was unanimous: What was he thinking?
Jonathan Thacher was asked to recuse himself.
As soon as Fairfax prosecutors learned that Thacher had traveled to Prince William County on Tuesday to interview jailers and review jail files, they asked Thacher to step down from the Muhammad trial. Thacher has not ruled on the request and declined to comment on his actions.
Thacher's actions were surprising because he is not regarded as rash or reckless by lawyers who know him. He often bats around legal issues with other judges or lawyers and has spent many hours researching cases and theories to resolve thorny questions in the complicated sniper trial.
Thacher, 57, is a well-traveled lawyer and athlete with a colorful life away from the bench: a black belt in tae kwon do, a builder (and player) of electric guitars, a one-time high school basketball coach, a former world class water-skier. Before becoming a full-time judge in 1994, he spent years as a criminal investigator in the military and then worked as a criminal defense lawyer in private practice.
"He's one of the hardest-working guys I've ever known in my life," said James E. Swiger, a former law school classmate and law partner of Thacher's. "I think he views this [Muhammad] case as one of the most important he'll ever work on, and he's making sure he does everything just right."
But the motion to disqualify Thacher threatens to derail a case that had been chugging steadily toward a second death penalty trial for Muhammad, 43, who was convicted of one set of capital murder charges in Prince William last year.
As one of many pretrial challenges, Muhammad's attorneys claimed that the sniper's right to a speedy trial had been violated. Virginia law requires that a jailed defendant be tried within five months. Even though Muhammad was being prosecuted first in Prince William, charges were pending in Fairfax at the same time, and his attorneys claimed that Muhammad had the right to be brought to Fairfax and possibly choose to move quickly to trial there.
Fairfax prosecutors argued that Muhammad was not arrested on the Fairfax charges until May of this year, and he was brought to Fairfax in June. Muhammad's attorneys responded with documents showing that Fairfax sent a "detainer," or arrest authority, to the Prince William jail in January, and it was served on Muhammad.
Thacher said in a hearing that he didn't think either side had provided him all the documents in the case. So Tuesday, he went to the Prince William courthouse, met with jailers and reviewed jail records, according to prosecutors.
What outraged the Fairfax commonwealth's attorneys was that, after the flurry of arguments and counterarguments on the speedy trial issue, they had asked for an evidentiary hearing four days before Thacher's research trip. Deputy Commonwealth's Attorney Raymond F. Morrogh, in asking Thacher to recuse himself, said the judge might well have interviewed witnesses who later would appear before him.
Judges typically confine themselves to information and argument presented only by the parties to a lawsuit or criminal case, to avoid any claim that they considered irrelevant or tainted facts. Judges always advise jurors not to investigate a case or listen to anything about it outside the courtroom.
The Canons of Judicial Conduct in Virginia instruct that judges shall disqualify themselves if they have "personal knowledge of disputed evidentiary facts." And the commentary section of the canons, taken from previous rulings, states: "A judge must not independently investigate facts in a case and must consider only the evidence presented."
Legal experts said Thacher's actions were unusual at best and wrong at worst. "It seems odd that the judge would go over there and do fact-finding himself," George Mason University law professor Michael E. O'Neill said last week. "Was there a legal reason, or a justifiable reason, for the judge to be there? Right offhand, I can't think of one."