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Judge Recuses Himself in Muhammad Case

By Tom Jackman
Washington Post Staff Writer
Tuesday, September 21, 2004; 1:09 PM

The Fairfax County judge handling the second murder trial of sniper John Allen Muhammad has recused himself, saying that the focus of the case needed to return to the victim and suspect.

In a letter to the lawyers in the case and posted on the court's Web site this morning, Circuit Court Judge Jonathan C. Thacher defended his actions in investigating aspects of a legal claim by the defense, but said he thought it best if another judge handled the case.

Fairfax prosecutors had asked Thacher to step down on Sept. 8 after learning that he had traveled to Prince William County a day earlier to investigate parts of a motion filed by Muhammad's lawyers last month. The defense team said that Thacher had done nothing wrong, but prosecutors renewed their request on Friday with specific allegations that the judge had interviewed potential witnesses and alleged that a key document had been altered.

"This case is now and has always been about the murder of Mrs. Linda Franklin," Thacher wrote, "and the capital murder charges levied against John Allen Muhammad. The focus has recently been diverted away from the legal issues in this case, and needs to be redirected to the prosecution of Mr. Muhammad and the issues therein."

Thacher wrote the letter and provided it to both the defense and prosecution yesterday, but neither side would release it or comment. Thacher also declined to comment last night.

The letter also notes that a hearing previously scheduled for tomorrow will proceed as scheduled, and will include the defense's motion to dismiss the case for violation of Muhammad's right to a speedy trial -- the very issue that prompted Thacher's recusal.

Circuit Court Judge M. Langhorne Keith, who was appointed to hear the case, will hear tomorrow's motion.

Thacher's letter, and a formal recusal order, state that he was removing himself "sua sponte," or on his own motion, even though the prosecutors made two requests that he step down.

The issue that prompted the recusal was an argument by the defense that Muhammad was entitled to a trial in Fairfax in Franklin's slaying by April 2003. Virginia law requires that a jailed defendant be tried within five months, unless he waives his right to a speedy trial, as Muhammad did in his first trial for a sniper slaying in Prince William.

Fairfax prosecutors obtained a capital murder indictment against Muhammad on Nov. 6, 2002, not long after his arrest in the October 2002 sniper shootings that claimed 10 lives in the Washington region. He was convicted and sentenced to death first in Prince William, but Fairfax is seeking a second set of convictions in case the first set are overturned on appeal.

Fairfax argued that Muhammad's five-month speedy trial clock did not begin ticking until May of this year, when he was served with a warrant by a Fairfax homicide detective while on death row. But the defense responded with documents from the Prince William jail, showing that Fairfax had faxed a copy of Muhammad's indictment and arrest warrant and sent a teletype to Prince William, asking that he be detained on Fairfax's charges.

Both sides exchanged briefs and charges that the other had not provided the judge with all the pertinent documents. In an Aug. 30 hearing, the judge asked the prosecution for copies of its "detainer" for Muhammad, and indicated he would get it himself. No one objected.

But after the defense produced some of the Prince William jail's documents, the prosecution on Sept. 3 demanded an evidentiary hearing on the case. In addition to maintaining that Muhammad had never been arrested on Fairfax's charges, the prosecution argued that Prince William's jailers did not have arrest powers.

Four days later, Thacher traveled to the Prince William courthouse, and met with jailers and reviewed Muhammad's file. Legal experts said that a judge investigating a case himself was highly unusual and possibly grounds for him to step down.

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."

Prosecutors learned of Thacher's trip the same day he took it, and filed their motion asking him to recuse himself the next morning.

"I have no personal stake in this trial," Thacher wrote in his letter stepping down from the case. "My concerns and obligations are and always have been the orderly administration of justice; that the Court faithfully follows the dictates of the Constitution of the United States, the Constitution of the Commonwealth of Virginia, applicable case law and the statutes promulgated by the legislature. As the trial judge I have taken no action that is inconsistent with this position."

But Thacher wrote that he felt the case had lost its focus. "In order that this case may return its focus to the merits of the case and nothing else," the judge said, "I will recuse myself sua sponte."

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