U.S. May Seek Judge’s Recusal in Blast Trial

Senior Justice Department officials are considering taking the unusual step of joining with defense attorneys in the Oklahoma City bombing case and asking that a federal judge be removed from presiding over the trial, sources close to the talks said Saturday.

Citing “an abundance of caution,” the Justice officials are weighing whether it would be prudent to ask that Judge Wayne E. Alley recuse himself and that either a special judge from outside Oklahoma City be appointed or the trial be moved out of that federal district.

Their concerns, much like those of defense attorneys for suspects Timothy J. McVeigh and Terry L. Nichols, are that Alley, like the other seven federal judges in Oklahoma City, was victimized when the federal courthouse was heavily damaged by the bomb that exploded next door at the Alfred P. Murrah Federal Building.

“Justice feels like it should bend over backwards on this matter,” said one source, who asked not to be identified because the Justice Department discussions are continuing.

“They’re concerned about this thing becoming a fight in the media over the right judge,” he added. “The last thing they want is a propaganda battle. So they’re coming at this with an abundance of caution to do what is right.”

Steve Mullins, a spokesman for the U.S. attorney’s office in Oklahoma City, said that a final decision should be announced by Wednesday, the deadline for federal prosecutors to respond to defense motions asking that Alley step aside.

But Mullins and Patrick Ryan, the newly appointed U.S. attorney in Oklahoma City, have from the beginning of the case postulated that a fair trial can be held in the Oklahoma City federal courthouse.

They have also strongly argued that moving the trial would only create an undue hardship for many of the victims and relatives of the dead who might be called to testify or wish to attend some of the court sessions.

The truck bomb, allegedly assembled by McVeigh and Nichols and delivered by McVeigh, exploded in front of the Murrah building on the morning of April 19. The blast killed 169 people and injured more than 600 others.

The explosion damaged or destroyed buildings several blocks away in every direction. Among those hit hardest was the federal courthouse, which sits directly across 4th Street from where the high-rise Murrah building once stood.

With the split in strategy between local prosecutors and their bosses in Washington, sources said that Atty. Gen. Janet Reno will have the final say in whether the government joins with the defense attorneys or elects to fight to keep the trial with Judge Alley in Oklahoma City.

Should she embrace the defense position on changing judges, it would dramatically turn up the pressure for Alley to step aside. He already has come under sharp scrutiny by many legal observers in Oklahoma City who wonder how he can fairly sit in judgment of the men charged with a crime that so devastated the federal work force there.

Alley, however, has made it clear that he wants to keep the case.

Shortly after he was designated the trial judge when McVeigh and Nichols were indicted last month, he went out of his way to maintain that he can preside objectively over the trial.

In his own unusual move, he filed a lengthy memorandum with the court clerk’s office in Oklahoma City. The judge, appointed 10 years ago to the federal bench by President Ronald Reagan, stated that there was only minimal damage to his courtroom and chambers. He also declared that he has not attended any of the funerals for the dead.

However, Stephen Jones, the attorney for McVeigh, said in his recusal motion that Alley should be removed because the judge’s courtroom was heavily damaged, with an inch of broken glass strewn about the floor.

Jones also said that some of Alley’s staff members were close acquaintances of some of the bombing victims and that one staff member suffered minor injuries from the courthouse damage.

Sources said that should Alley refuse to step down even after both the defense and prosecution request his removal, he most likely would be ordered off the case should either side appeal the matter to the U.S. 10th Circuit Court of Appeals in Denver.

The sources added that it is Washington’s call on how the prosecutors will proceed. “Right now there is this separation of interests on which way to go,” one source said. “Ultimately, the attorney general will determine that.”

They said a similar situation arose 15 years ago when the U.S. attorney in San Antonio was removed from prosecuting four defendants charged in the assassination of a federal judge there.

The local prosecutor was taken off the case after he made some prejudicial statements, the sources said, and then a special team of federal prosecutors was formed to try the defendants. The special prosecutors had worked in the U.S. attorney’s office in San Antonio. But in preparing their case, they moved to the local FBI field office, thus distancing themselves from the U.S. attorney’s office.

In the end, three trials were held in Texas while another was conducted in Florida.

In complicated cases like those in San Antonio and Oklahoma City, prosecutors often disagree in the early stages on how best to mount their strategy.

“Many times,” one source said, “the criminal division and the local U.S. attorney take different positions. The debate never goes outside the Justice Department, and the attorney general’s decision, whatever she decides, will be final.”