Windhoek-High Court Judge Christi Liebenberg yesterday told American national Marcus Thomas, who applied for his recusal from the murder trial of Thomas and fellow American Kevin Townsend, in no uncertain terms that the reasons they forwarded for his recusal are insignificant and without merit.
Judge Liebenberg stated his conclusion when he dismissed the recusal application filed by Thomas.
“The reasons advanced for bringing the application of recusal, in my view, are insignificant and unmeritorious, falling short of meeting established requirements,” Judge Liebenberg stated. He continued that for the presiding judge to recuse himself in these circumstances, and without sound reason, would not be in the interest of justice.
Thomas through his State-funded lawyer, Kadhila Amoomo, brought the application for the judge to recuse himself after the judge declared that he (Thomas) is fit to stand trial and capable of appreciating the wrongfulness of his act.
Thomas had an issue with the words ‘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.’
According to Thomas, the wording of the judge implies that he is guilty of an act while no evidence has been led by the State to substantiate it.
Thomas had claimed that the court without having heard evidence implicating him in an unlawful and wrongful act misdirected itself by giving the order, and prejudged issues in dispute, thus creating an apprehension of reasonable bias.
However, Judge Liebenberg said it is evident from the application itself that Thomas fully appreciates that no incriminating evidence has been presented in the main trial thus far. He said the purpose of the psychiatric evaluations was to determine whether Thomas was able to appreciate the wrongfulness of his actions at the time the alleged offences were committed, and to act in accordance with such appreciation, as well as to determine whether he was fit to stand trial.
The words in question were taken directly from the reports of the two psychiatrists, Judge Liebenberg stressed. He further said that Thomas, for the purposes of the recusal application, confined himself to the wording of the court order without making any reference to the evidence adduced during the testimonies of the two psychiatrists.
“Applicant is well aware that no incriminating evidence had as yet been presented, and there is no basis from which a court could be able to find that the applicant had acted in respect of the offences charged,” the judge continued.
He said that to come to a different conclusion would require a reading of the court’s order with a closed mind and out of context with the evidence adduced during the enquiry proceedings or the ruling set out in the judgment.
He went on to say “the meaning accorded by applicant to the words ‘acts’ and ‘acted’ as reflected in the order is clearly not consistent with the facts as discussed in the judgment, clearly referring to offences charged, not committed.”
Thomas, who claimed he suffered a brain injury when he fell from a 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.
Thomas and Townsend, represented by Mbanga Siyomunji, stand accused of killing Andre Heckmair with a single gunshot in the back of his head on January 7, 2011 at Gusinde Street in Windhoek and robbing him of his cellphone and wallet containing at 100 Swiss Franc.