Judge Removed From 2nd Overton Murder Trial : Jurisprudence: State appeals court rules the defense has the right to disqualify Carter, who had presided at the first action, which ended in a mistrial in August.

Orange County Superior Court Judge David O. Carter, who has been presiding over the sensational Richard K. Overton murder-by-poison trial, has been removed from the case by a state appeals court.

In a unanimous decision issued Monday, the 4th District Court of Appeal ordered Carter to step down, ruling that a recent mistrial in the case gave the defense the right to ask that the judge be disqualified for possible bias.

“I will, of course, immediately comply with the District Court’s order . . . and will cooperate in any way possible to expedite the retrial of this case,” Carter said Wednesday.

He added the he “was blessed in having two excellent trial attorneys (in the aborted case). They displayed extraordinary competence and the highest standards of the legal profession.”

Neither the prosecutor nor Overton’s attorney could be reached for comment on the ruling.

The appellate court’s decision sets the stage for the retrial of one of the county’s most investigated and publicized murder cases. The trial is tentatively scheduled to resume Oct. 25.

Overton, 65, a part-time computer consultant from Dana Point, is charged in the Jan. 24, 1988, cyanide poisoning death of his wife, Janet, a popular trustee of the Capistrano Unified School District. Prosecutors allege he killed her because he was upset over her extramarital affairs.

Initially, investigators were unable to determine how Overton’s wife died. Six months after her death, one of Overton’s previous wives called investigators and asked if they checked for poison, alleging that he had once tried to poison her. Investigators re-examined the body and found traces of cyanide.

Overton has maintained his innocence throughout, disputing his alleged role in her death and has even challenged the prosecution’s contention that his wife died from poisoning.

The circumstances of the case became even more bizarre last May when it was learned that a yearlong recess in the trial was caused by the mental illness of Overton’s attorney, who charged that Overton may have tampered with evidence and lied on witness stand. Neither of those allegations were substantiated.

In a dual ruling in August, appellate justices removed the attorney and concluded that the unusual and lengthy delay could have caused jurors to harden their opinions about Overton’s guilt or innocence. A mistrial was declared.

Overton’s new attorney, George A. Peters Jr., then sought to remove Carter from presiding at the retrial, contending that the first trial may have prejudiced the judge.

Carter had refused to step down, arguing that he was not biased. He also charged, in court, that Peters was trying to a get new judge so crucial arguments concerning the admission of evidence, which had gone against the defense, could be reheard.

Carter had also argued that replacing him would cause further delays and increase the already hefty costs associated with the case. Overton hired his own lawyer in his first trial, but the county is paying the cost of his defense in the retrial.