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Judge Removes Himself From Va. Sniper Case

Prosecutors Objected to Conduct

By Tom Jackman
Washington Post Staff Writer
Wednesday, September 22, 2004; Page B01

The Fairfax County judge overseeing the second trial of John Allen Muhammad recused himself yesterday after he had been accused by prosecutors of conducting his own investigation into a claim by the convicted sniper's attorneys.

In a letter to the lawyers in the case that was posted on the court's Web site yesterday, Circuit Court Judge Jonathan C. Thacher defended his actions but said he thought the focus needed to return to the victim and the suspect.

The judge said the case should be focused not on himself but on the victim and Muhammad, above.

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

"This case is now and has always been about the murder of Mrs. Linda Franklin and the capital murder charges levied against John Allen Muhammad," Thacher wrote. "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."

No one involved in the case would comment on the recusal.

Legal experts said Thacher, 57, acted correctly to remove himself from the case. "It was the better part of discretion for the judge to recuse himself," said Jamin Raskin, a criminal law professor at American University, "because one wants to remove any theoretical basis for reversal of a valid conviction."

Chief Circuit Court Judge Michael P. McWeeny yesterday appointed Judge M. Langhorne Keith to take over Muhammad's trial. Keith, 67, joined the Fairfax bench in March 1995, and his previous legal experience was mainly in commercial law. He is a former Fairfax County attorney and president of the Virginia Bar Association.

At a hearing today, Keith will immediately plunge into the case's most vexing issue, which led to Thacher's recusal: the claim by defense attorneys Peter D. Greenspun and Jonathan Shapiro that Muhammad's right to a speedy trial was violated and that both murder charges against him should be dismissed.

Keith also must rule on at least two other major issues, which both sides have filed briefs on and argued before Thacher: whether to move the trial out of Fairfax, and whether Muhammad can face the death penalty when he is not alleged to have fired the shot that killed FBI analyst Linda Franklin.

Franklin was one of 10 sniper victims killed in October 2002. Muhammad was convicted and sentenced to death in a Prince William slaying, but Fairfax is seeking a second set of convictions in case the first ones are overturned on appeal.

Muhammad was indicted in Fairfax in November 2002, prompting an argument by the defense last month that he was entitled to a trial in Fairfax by April 2003. Virginia law requires that jailed defendants be tried within five months unless they waive the right to a speedy trial, as Muhammad did in the Prince William case.

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

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

But after the defense produced some of the Prince William jail documents, the prosecution on Sept. 3 demanded an evidentiary hearing on the issue. The prosecution also argued that Prince William's jailers did not have arrest powers.

Four days later, Thacher traveled to the Prince William courthouse, met with jailers and reviewed Muhammad's file. Legal experts said that a judge personally investigating a case was highly unusual and possible 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." 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 day he took it, and the next morning they filed their motion asking him to recuse himself. Fairfax Commonwealth's Attorney Robert F. Horan Jr. said he had not previously sought to recuse a judge in 40 years as a prosecutor.

"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."

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