Prosecutor: Muth's Trial Can Proceed With or Without Him

Prosecutors in the Georgetown murder case have advised D.C. Superior Court Judge Russell F. Canan that defendant Albrecht Muth's on-again, off-again hunger strike should be seen as a voluntary waiver of  his constitutional right to be present at trial. The AP first reported on the new memo.

Muth is charged with first degree murder in the strangling death of his late wife, Drath, in her Georgetown home in August 2011.

In a memo, requested by Canan at the most recent hearing in April, Assistant U.S. Attorneys Glenn Kirschner and Erin Lyons with the approval of U.S. Attorney Ronald Machen opine that Muth's behavior is disruptive.

A 19-page memo lays out the legal argument for proceeding to trial with or without Muth's physical presence in the courtroom.

"A defendant who knowingly and voluntarily absents himself from trial is deemed to have waived his constitutional right to be present..." according to the memo. 

Judge Canan had pressed the prosecution to arrive at just such a finding. 

In April he argued that Muth's fast and inability to appear physically in court, "conceivably could go on indefinitely." 

"It just cannot be that way," said Canan at the time.

The prosecution's memo bolster's the court's position that the trial should proceed in December. 

"If Muth persists in his hunger strike, the Court properly could view his conduct as a knowing and voluntary waiver of his constitutional right to be present at trial," the memo states. 

The defense has 30 days to respond to the memo.