Windhoek-Marcus Thomas, the North American national who is accused of the execution style murder of Namibian citizen Andre Heckmair wants Judge Christi Liebenberg to recuse himself from the case for alleged bias.
According to Thomas, the wording in the judgment declaring him capable of understanding the wrongfulness of a criminal act and of having the capability to appreciate the wrongfulness of such an act indicates that the judge has already made a finding that he was guilty of such an act.
In his ruling Judge Liebenberg said: “Mr Marcus Thomas is capable of appreciating the wrongfulness of his acts in respect of the offences charged, and acted in accordance with an appreciation of the wrongfulness of his actions, does not suffer from any mental illness or mental defect and is accordingly capable of understanding the proceedings so as to make a proper defence.”
This wording is now the bone of contention, as Thomas says it creates an impression of bias on the part of Judge Liebenberg and poses a perceived threat to a fair trial.
His legal aid lawyer Khadila Amoomo argued this point strongly, in spite of interjections by Judge Liebenberg, who was clearly not amused by Amoomo’s firm insistence.
Thomas, who claimed he suffered a brain injury when he fell from an at least two metre fence during a botched escape attempt, was declared fit to stand trial in the Windhoek High Court by two psychiatrists after he was sent for successive psychiatric evaluations by the court.
After the first psychiatric observation he was declared unfit to stand trial by state psychiatrist Dr Frederika Mthoko as he was reportedly suffering from a “neurocognitive disorder.”
This was, however, not accepted by the State and Judge Liebenberg ordered a second round of psychiatric observation by two independent psychiatrists.
After the second round of evaluations, independent psychiatrists Dr Reinhardt Sieberhagen and clinical psychiatrist Prof Tuviah Zabow found that Thomas was malingering and was fit to stand trial. They concluded that he was faking mental problems to avoid the consequences of his actions.
In his ruling – which is now the subject of the recusal application – Judge Liebenberg verbally quoted the findings of the two psychiatrists and ruled that Thomas was fit to stand trial.
And this is the issue Amoomo had a field day with. He was adamant the judge had expressed himself already without a factual basis to rely upon. According to Amoomo, no evidence had been led to permit the judge to find Thomas guilty of an “act”.
On her part, State Advocate Antonia Verhoef argued that the judge merely used the same expression the psychiatrists used in their reports.
She said there was nothing sinister in the paragraph in question, as it must be read in context with the full judgment. In any event, Verhoef argued, that Thomas was not disputing the fact he was declared mentally fit to stand trial, but is trying to make a mountain out of a molehill.
Thomas and his co-accused, Kevan Townsend, represented by Mbanga Siyomunji are accused of killing Heckmair with a single gunshot to the back of his head on January 7, 2011 along Gusinde Street in Klein Windhoek and robbing him of his cellphone and wallet containing at least 100 Swiss Franc.