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Judge in sniper case decides to step aside

Prosecutors accused him of starting his own probe

By Andrea F. Siegel

Sun Staff

September 22, 2004

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The judge who was to preside over the next capital murder trial of John Allen Muhammad has abruptly recused himself, after prosecutors alleged that he wrongly conducted his own investigation into whether the convicted sniper has been denied a speedy trial.

In a letter to prosecutors and defense lawyers made public yesterday, Fairfax County Circuit Judge Jonathan C. Thacher wrote that he is stepping aside but denied that he did anything improper.

"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 in a short letter dated Monday.

"The integrity of the process is paramount," he wrote.

The case has been reassigned to Judge M. Langhorne Keith, who will preside over a hearing scheduled today on, among other issues, Muhammad's bid to dismiss the case for a speedy trial violation. Muhammad was arrested in October 2002, but when he was charged in Fairfax is in dispute. Virginia requires that a person in custody be brought to trial within five months of being charged.

Prosecutors asked Thacher on Sept. 8 to remove himself from the high-profile case, one day after he went to the Prince William County jail, they said, to review the file and question jailers. They said the judge openly speculated that a document might have been altered and contend that his actions violated standards of judicial conduct.

In the letter, Thacher said he was acting "sua sponte," or of his own will.

Defense lawyers contended that prosecutors exaggerated Thacher's actions, that Thacher's review of jail files was not improper and that it was prompted when prosecutors did not produce information the judge had sought. They said prosecutors wanted him off the case because he appeared to be seriously weighing their request to dismiss the Fairfax charges.

In a prepared statement yesterday, defense attorneys Peter D. Greenspun, Jonathan Shapiro and Christie A. Leary declined to comment, saying they have the "utmost respect for Judge Thacher, his integrity and the work he put into assuring a fair trial."

Thacher was presiding over the second trial for Muhammad, who is already under two death sentences for the Oct. 9, 2002, killing of Dean Harold Meyers, a Gaithersburg engineer, at a Manassas gas station.

This month, acting without a request from lawyers, Thacher decided to delay the Fairfax County trial for Muhammad, 43, from October to January. Muhammad is charged with murder in the shooting death of FBI analyst Linda Franklin on Oct. 14, 2002, in the parking lot of a Home Depot in Falls Church.

Franklin's and Meyers' deaths are among more than a dozen fatal shootings around the country that authorities blame on Muhammad and teenager Lee Boyd Malvo, who is serving a life sentence for Franklin's murder.

In written arguments, prosecutors said Virginia's Canons of Judicial Conduct call for a judge to disqualify himself if his impartiality "might reasonably" be questioned, and that includes if he has gained personal knowledge of disputed evidentiary facts. Prosecutors said it is not the trial judge's role to conduct his own investigation or generate evidence.

While reviewing documents that are an official record is not automatically wrong, questioning people without both sides present raised some eyebrows. It is highly unusual for a judge to investigate facts of a case and may be a reason for him to step aside, legal experts said.

"It is an 'appearance of propriety' thing," said William Reynolds, a University of Maryland law professor. "When you have a highly publicized trial and all the trimmings that go with it, you should not add to the furor."

Peter M. Moser, a Baltimore lawyer who previously was chairman of the American Bar Association Ethics Committee, said Thacher's actions might be questionable, but would be unlikely to cause a mandatory disqualification.