D.C. Superior Court Judge Russell F. Canan wants to proceed to trial for the murder of Georgetowner, Viola Drath, with or without the physical presence of defendant Albrecht Muth.
Muth is charged with first degree murder in the strangling death of his late wife, Drath, in her Georgetown home in August 2011.
"The government has an unduly restrictive interpretation of the law," Canan told Assistant U.S. Attorney Glen Kirschner in court Thursday.
Most recently, the prosecution asked that the trial not preceed as it was schedule to in March, citing issues surrounding the defendant's inability to come to court. The concern is that upon appeal any conviction might be overturned because of Rule 43 which allows a defendant to be physically present at the start of his trial.
Muth has been in the hospital for an on-again, off-again fast that has rendered him incapable of standing, or even sitting up, according to his doctors.
Muth has joined the last several hearings via speakerphone from his hospital bed.
Canan said in his opinion and based on his interpretation of the case law, "Mr. Muth is present before the court today."
The judge echoed earlier comments in which he argued that Muth's ongoing fast and thereby his inability to appear in court was of his own doing and was volitionaly disruptive to court proceedings.
Muth's fast and inability to appear physically in court, "Conceivably could go on indefinitely," said Canan. "It just cannot be that way."
He asked the prosecution for a briefing on the legal aspects of a disruptive defendant's right to appear in court.
Canan said the court has the capability to provide a two-way video feed so that Muth can be "present" for his trial.
"I think the court can go forward," with a trial, Canan opined.
He advised Muth that he has the right to appear in court and urged him to discontinue his disruptive behavior and to choose to be present.
A trial date was first set for Oct. of 2012 and then moved to March 2013 and now is set for December.
A trial date is set for Dec. 2. The prosecution expects its case to take about a week and a half and the defense said they could present theirs in two days.
Canan was concerned that the case could run into Christmas and holiday schedule issues.
"This case has gone off course several times," said Canan.
Canan asked if there was any way the defence counsel could accomodate an earlier trial date, but Public Defender Dana Page said it was not possible.
The prosecution has 45 days to submit a briefing on the legal questions surrounding Muth's presence for his trial. Thereafter the defense will have 30 days to respond.
Read more on the Albrecht Muth proceedings:
- Drath Family 'Will Wait as Long as it Takes for Justice'
- Doctor: Albrecht Muth Faces 'Imminent Risk of Sudden Death'