U.S. Joins Request to Exclude 8 Judges in Oklahoma Case

In a remarkable move that unites the prosecution and the defense in the Oklahoma City bombing case, the government announced Friday that it wants all eight federal judges here barred from hearing the trial.

The unusual twist in legal maneuvering is likely to force U.S. District Judge Wayne E. Alley either to recuse himself and his fellow judges from the case--as he can do as the judge who is hearing the case--or to ask the 10th Judicial Circuit in Denver to appoint a judge to decide the matter.

He also could deny the wishes of both sides and keep himself on the case--a scenario that many legal observers here do not see as plausible. But should he do so, the defense and the government would be expected to appeal his decision.

“It places him under great pressure,” said one source close to the case. “He now has experienced defense counsel plus the U.S. government calling for him to step aside voluntarily. It would be very difficult for him to avoid that.”

Alley is on personal leave and is not expected to issue a ruling until early next week, when he returns to the Oklahoma City courthouse.

At issue is the fact that the bombing of the Alfred P. Murrah Federal Building last April--which killed 169 people and injured hundreds more--also caused extensive damage to the federal courthouse nearby. Some courtrooms, chambers and clerks’ offices were heavily damaged and many courthouse employees were injured. Most of them fled the building after the blast on the morning of April 19.

Other courthouse staff employees lost friends or relatives in the bombing. One clerk’s child was killed in the Murrah building. A judge was injured from flying debris. Another judge attended seven funerals.

Alley was not in the courthouse at the time of the bombing. But his courtroom space was filled with shattered glass and one of his staff members was slightly injured.

Defense attorneys for Timothy J. McVeigh and Terry L. Nichols, who are charged in the bombing, first called for all of the eight U.S. district judges here to be removed from the case. The defense lawyers also asked that the trial itself take place outside of Oklahoma.

While the government’s action Friday does not address the change-of-venue issue, it does dramatically embrace the defense position that all of the judges should voluntarily recuse themselves.

“It is of paramount importance that the nation have complete confidence in the integrity of the verdict ultimately reached in this case,” prosecutors said in their legal brief filed here.

“Partisan detractors [should] not be permitted, however wrongly, to raise questions about judicial fairness. It is equally important that any such verdict be a final one,” they said.

Prosecutors said that “there is too much at stake here to risk even an erroneous reversal” of a guilty verdict, should one be reached by a trial jury.

They noted that a reversal on such a pretrial issue as judicial recusal would be devastating, particularly because of the heavy “costs to the people of the United States and, most importantly, to the victims of this terrible crime.”

The government also said it believes that Alley would not show bias against the defendants because of the bombing. But, nonetheless, prosecutors said:

“Failure to recuse could cause delay, uncertainty and unwarranted focus on a matter that is collateral to the overriding issue of these defendants’ guilt or innocence.”

Defense attorneys were enthusiastic about the government’s decision to join them in asking for a judge outside of Oklahoma to replace Alley.

“I think it is a victory for us,” said Kate Rubin, a Los Angeles public defender who was named to assist in Nichols’ legal representation.

“Both our team and the McVeigh team worked very, very hard on our recusal motions and we’ve taken the position that the judges are not in the position where they can give us the kind of trial the Constitution guarantees.

“All caution should be exercised in favor of a fair trial for these defendants.”

Stephen Jones, an Enid, Okla., attorney who represents McVeigh, agreed, saying that “the logic which compels the government’s conclusion also supports a change of venue outside of Oklahoma.”

Both defense teams want the trial moved out of state, perhaps to California. But prosecutors, led by Patrick Ryan, the local U.S. attorney here, have argued that it could still occur here or, alternatively, in Tulsa, Okla.