Morrogh cited Virginia's Canons of Judicial Conduct, which state: "A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where the judge has . . . personal knowledge of disputed evidentiary facts concerning the proceeding."
The canons also prohibit "communications made to the judge outside the presence of the parties concerning a pending or impending proceeding" and provide another basis for Thacher to recuse himself, Morrogh argued.
"It is not the role of the trial judge to conduct his own investigation," said Deputy Commonwealth's Attorney Morrogh, right, shown in December.
(Marvin Joseph -- The Washington Post)
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Morrogh's motion was filed moments before yesterday's hearing, and the defense did not respond. Peter D. Greenspun, one of Muhammad's attorneys, declined to comment last night.
Several legal experts were stunned by Thacher's actions.
"That just seems like a most injudicious thing to do," said Michael E. O'Neill, a law professor at George Mason University. "It seems to me that there are legal issues, but those are best presented by the lawyers and not something the judge ought to be doing."
Anne M. Coughlin, a criminal law professor at the University of Virginia, called Thacher's probe "really very unusual. It seems to me that the reading of documents is not that problematic. But with the question of the judge's own probing of a witness, the worry would be that the judge had formed an impression of the witness outside of the courtroom."
Muhammad's attorneys have argued that their client had the right to be brought to Fairfax once he was transported to Virginia for his first trial on capital murder charges in the October 2002 sniper attacks. When Fairfax authorities filed a "detainer" with the Prince William jail, that served as an arrest of Muhammad, and, under the speedy trial rule, his trial should have taken place within five months, the defense contends.
Violation of the right to a speedy trial requires a dismissal of the case that cannot be appealed. Any other Virginia jurisdiction that filed detainers on Muhammad presumably would face the same fate. Cases pending against Muhammad in other states would not be affected.
In an exchange of briefs, prosecutors have said that Muhammad was not arrested on the Fairfax charges until May of this year, after he was sentenced to death in Prince William and shipped to prison in Sussex, Va. The defense then produced Prince William jail documents showing that Fairfax faxed a detainer to Prince William, with a copy of Muhammad's Fairfax indictment and bench warrant, on Jan. 6, and another document showing that it was served on Muhammad on Jan. 9.
Prosecutors answered with a document purporting to instruct the jail not to serve the detainer on Muhammad. That document has not been released by the Fairfax court. The defense said that it did not matter because the detainer was served.
The prosecution argued that staff at the regional jail in Prince William, who are correctional officers instead of sheriff's deputies, do not have arrest powers. The defense replied that they do and that the jail superintendent agreed with the defense.
At that point, Thacher apparently decided to research the matter himself.
