Martin Miller is led away after being convicted of his wife's murder in Judge Paula Martin's courtroom.

A Lawrence man once convicted of his wife’s murder plans to ask the Kansas Supreme Court to force the Douglas County District Court to disqualify the Douglas County District Attorney’s office as prosecuting agency in his retrial.

A Douglas County jury convicted Martin Miller in 2005 of first-degree murder in the July 28, 2004, death of his wife, Mary E. Miller, 46, at the family’s central Lawrence home. Prosecutors accused Miller, a former Lawrence carpenter and Christian school leader, of strangling his wife in her sleep because he had been having an affair with another woman and he wanted to collect $300,000 in life insurance money.

Miller’s murder conviction was overturned in February, when the Kansas Supreme Court said that the written jury instruction District Judge Paula Martin gave jurors had been in error.

In 2012, the Kansas Court of Appeals ruled that Miller should get a new trial based on errors in the jury instructions during his initial trial.

Now, the defense is aiming to have the retrial moved to another jurisdiction.

In September, Martin denied Miller’s request to disqualify the district attorney’s office after it was revealed that witness and Miller’s son Matthew Miller, 22, had been living with senior assistant district attorney Eve Kemple’s son in her home.

Kemple is not involved in prosecuting Miller’s murder case.

The defense did not agree with Martin’s ruling and asked the court Tuesday to put the county case on hold so they could ask the Kansas Supreme Court to order the disqualification of the District Attorney’s office.

The prosecution opposed the action, saying that asking the Kansas Supreme Court to order the disqualification is a measure that “should only be used in extraordinary cases,” assistant district attorney Mark Simpson said.

But Richard Ney, Miller’s attorney, said his client’s case is indeed “extraordinary.”

“This taints a fair trial. There is a conflict that needs (to be) resolved,” Ney said. “It’s certainly ironic that the state has done the misconduct, and they are the ones who want to proceed through it.”

Martin ruled Tuesday to allow Ney to ask the Supreme Court for the order and to put off the Douglas County case until a decision is made. As part of the ruling, Ney has three days to file a request with the Kansas Supreme Court after a transcript of the September hearing is given to him.

Still, Martin said that other cases have determined the trial court has the best vantage point to decide whether the prosecution should be disqualified. Martin also noted asking for an order is not the typical route to remedy a dispute in judgment.

“Case law states trial court is in the best position to determine the abuse of discretion,” Martin said. “Normally, direct appeal is the way to resolve this.”

Martin Miller has been out of jail since posting a $250,000 bond in April. During a March court appearance, Miller’s attorney said Miller would arrange to live with his wife, Laura Cuthbertson, and her father at a home in Paola. Miller and Cuthbertson married while Miller was in prison in 2006.