Accused child killer Matthew Higa's lawyer has asked the presiding judge to disqualify himself from the case.

If that motion fails and the murder trial begins as scheduled Jan. 25, defense lawyer Randall Oyama will argue that toddler Cyrus Belt was already dead when Higa dropped him from a freeway overpass two years ago, Oyama said yesterday.

Higa, 24, an admitted methamphetamine addict, is accused of killing the 23-month-old boy Jan. 18, 2008, by dropping him off the Miller Street overpass onto H-1 Freeway some 25 feet below.

Higa and his father lived in the same Punchbowl apartment building where Belt and his mother, Nancy Chanco, lived.

Oyama said he is asking Circuit Judge Dexter Del Rosario to step down from hearing the jury-waived trial.

"Over the course of the last few weeks, I've had several hearings before him," Oyama said. "I don't think my client can be fairly treated actually at this time, based on what's transpired in the past with this case and another case that I'm handling before Judge Del Rosario."

Oyama would not be more specific, saying details would be included in a written disqualification motion.

Del Rosario scheduled a hearing on the matter for next week.

NO INSANITY CLAIM

Prosecuting Attorney Peter Carlisle would not comment on the details of Oyama's motion but said he is ready to go to trial.

A disqualification "would delay the trial significantly," Carlisle said.

"I think that this judge has been handling it from start to finish, and absent some extraordinary circumstance, it's appropriate for him to see it to the conclusion," Carlisle said.

Oyama repeated earlier statements that he will not mount an insanity defense for Higa.

"I don't think really he was insane at the time, legally," Oyama said.

"I think he did not cause death," he continued.

"We have evidence to show there's no movement of the child as it fell. A child that was living would have exhibited some sort of movements, reflex actions or things of that nature," Oyama said.

"We're suggesting that there was an injury before, that he was unconscious or dead before. We have a doctor, a pathologist, who's going to testify to that."

The child's mother, Nancy Chanco, said shortly after the crime that police told her that H-1 Freeway cameras showed that her son was not moving when he was thrown from the overpass.

That led her to believe the boy may have been dead or unconscious before he was thrown, Chanco said in 2008.

But the Medical Examiner's Office then released a statement that said an autopsy performed on Cyrus did "not show objective evidence to indicate that he was dead prior to being thrown off the pedestrian overpass."

Oyama said today the medical examiner's opinion was formed when the office "didn't have all the information."

Del Rosario ruled yesterday that statements made by Higa to police and medical personnel immediately after Cyrus Belt's death can be used in the trial.

'CONFABULATION'

In those statements, Higa several times acknowledged dropping the child off the overpass, sometimes saying that a woman had given him the boy and told him to do it.

Oyama had opposed use of the statements against Higa, but after Del Rosario's ruling, said he may introduce evidence that they were a "confabulation" by the defendant.

In a 2008 report to the court, a mental health expert who examined Higa said his "persistent adherence to an improbable scenario" might be an example of the psychiatric phenomenon.

The expert, Dr. Martin Blinder, said confabulation occurs when "the mind creates an alternative scenario to fill gaps in memory caused by mental disease or defect."

Blinder and two other experts all said they believe Higa is mentally competent to stand trial.

Blinder said confabulation "doubtless adds somewhat to defense burdens, but does not in itself negate (mental) competence."