FAIRFAX, Va. -- Prosecutors said yesterday that the judge in the second death-penalty case of convicted sniper John Allen Muhammad should remove himself from the case because he improperly conducted his own investigation into a critical pretrial dispute.
The motion filed by Fairfax County prosecutors contends that Judge Jonathan C. Thacher improperly interviewed witnesses and obtained documents that are central to a defense motion seeking to dismiss the case on the grounds that Muhammad's right to a speedy trial was violated.
"It is not the role of the Trial Judge to conduct his own investigation or to generate potential evidence on behalf of either side in the case," wrote Deputy Commonwealth's Attorney Raymond Morrogh.
The motion was not discussed in any substantive manner during a brief pretrial hearing yesterday in which Thacher delayed the start of the trial until next year.
It had been scheduled to start Oct. 4. Thacher said too many pretrial issues remain unresolved to be able to start the trial in less than one month.
Defense lawyers contend that Muhammad's trial should have begun months ago to uphold his right under the Virginia and U.S. constitutions to a speedy trial.
If a judge rules in Muhammad's favor, Fairfax County will be permanently barred from putting Muhammad on trial for the killing of FBI analyst Linda Franklin, one of 10 killings in the Washington area over a three-week span in October 2002.
Other jurisdictions where Muhammad could face trial, including Maryland, Alabama, Louisiana and the District of Columbia, would not be affected.
While many pretrial motions seeking dismissal of a case are routinely dismissed, Thacher has given close consideration to the dismissal motion on speedy trial grounds. At the hearing, the judge told the lawyers that he had gone to the jail to obtain records in the case.
Virginia is historically scrupulous in guarding a defendant's speedy trial rights, experts say, and lawyers in this case have filed 11 separate motions debating the issue.