A Judgment Call : District Judge Wayne E. Alley Insists He Can Be Fair in Trying the Oklahoma City Bombing Case

TIMES STAFF WRITER

"If there is a hell to which disputatious, uncivil, vituperative lawyers go," the judge once told a team of bickering attorneys, "let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes."

Similarly exasperated on another occasion, he declared: "This case makes me lament the demise of dueling." Pistols at 10 paces, he suggested, would guarantee "a salubrious reduction in the number of counsel to put up with."

To put it mildly, U.S. District Judge Wayne E. Alley, 63, does not suffer easily the rivalry of opposing attorneys. But when prosecution and defense lawyers in the Oklahoma City bombing case recently joined in common cause to push for his replacement as the trial judge, he quickly--and firmly--refused to budge.

Insisting that he could be fair and objective despite the damage to his courtroom and chambers from the bombing last spring of the federal building across the street, Alley suddenly injected a whole new issue into the case:

Himself.

A former brigadier general, Alley served as a military judge in the Vietnam War, where he heard 1st Lt. William L. Calley's appeal in the infamous My Lai massacre case. After 22 years in the military, he became dean of the University of Oklahoma School of Law until President Ronald Reagan appointed him a decade ago to the federal bench in Oklahoma City.

Lawyers here know him as stern and disciplined: a "stickler for procedural rules," a judge who "won't let lawyers play dirty tricks."

Now he faces the severest test of his judicial life. Like other judges in high-visibility national trials, he must retain control over prosecutors and defense lawyers driven to the limit by the legal ramifications of the worst act of domestic terrorism in American history.

When it comes to dominating a courtroom, Alley has few peers. But that is only half the challenge in ensuring that Timothy J. McVeigh and Terry L. Nichols are not rushed to judgment.

In a case of this magnitude, he also must preserve both the fact and the appearance of fairness. To satisfy history, he must show that--despite the public pressure for retribution--he will go any reasonable distance to give two of the most reviled men in America their day in court.

That, legal analysts say, will be the hard part. Moments after his announcement that he would stay on the case, lawyers on both sides began making plans to appeal his decision. They argue that no member of the Oklahoma City judiciary could be impartial on an event of such tragic consequences so close to home.

The judge insists with characteristic certitude that, even though he can look out his courthouse window and see the bombed-out crater across the street where the Alfred P. Murrah Federal Building once stood, he nonetheless can handle the trial with evenhanded control.

In a series of extraordinary pronouncements, the judge has filed three orders defending his objectivity and making it clear he intends to hold onto the reins. The first came just days after McVeigh and Nichols were indicted and Alley was chosen at random to preside over their trial.

He played down the bomb's damage to his third-floor courtroom. He noted that he was at home at the time of the blast, that only one member of his staff was injured--slightly--and that he did not attend the funerals of any of the 169 who died.

He said he could think of only one past case as a judge in which "I did have animosity toward one defendant [and] I recused myself." He did not elaborate.

"I intend to conduct a trial in a fair, objective and dignified manner," he declared, "in full realization that the rights of all parties should be scrupulously observed."

A week later, he laid down precise pretrial guidelines for prosecutors and defense lawyers, even to the point of stipulating that only three lawyers from each side would be allowed at the counsel tables. He also set out plans for separate juror questionnaires, one for a trial here, the other for a trial elsewhere.

Then on Sept. 14 he filed a 21-page order turning down the joint prosecution-defense request that he step aside. He cited a number of other major cases, including the 1979 murder of U.S. District Judge John Wood of Texas in which one of Wood's colleagues, who was a pallbearer at his funeral, was chosen to try the assassins.

He also dismissed allegations that he was biased simply because his courtroom was so close to the bomb's epicenter.

"In this case," he said, "I see nothing looking north from the courthouse that any other distant citizen has not seen dozens of times."

He announced that he would hold the trial in Lawton, Okla., a military town next to the Ft. Sill artillery training post. Ft. Sill was one of his own first duty assignments in the Army.

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Many legal observers here were stunned at how quickly and how adamantly Judge Alley dug in. Michael Tigar, who represents Nichols, appealed Alley's refusal to step down. He also said he would challenge the judge's desire to keep the trial in Oklahoma.

Stephen Jones, who is defending McVeigh, decided not to appeal. He said that although it might be acceptable to have Alley as the trial judge, he hopes to persuade the judge to move the trial out of the state.

The issue split government lawyers from the beginning. Local prosecutors wanted to keep Alley, while Justice Department officials in Washington thought it prudent that he be excused. Washington ultimately won that argument, but Alley decided to stay anyway.

Some government sources said it was Alley's rush to stay on the case that they found most unsettling. They worried that he might be too controlling, and perhaps also bend too far to the defense to show he was not biased against the men charged with murdering so many fellow federal employees.

Lawyers who have tried cases before him complain that he can be quite manipulative.

"He just takes charge and wants to control everything in the courtroom," said one attorney, who asked not to be identified because he still practices before the judge. "He likes to be in control. He over-controls."

Hugh Overholt, a former Army major general and judge who is now in private practice in North Carolina, called such criticism unwarranted. Having watched Alley up close as he moved up the ranks in military law, Overholt said he believed the judge could set aside his emotions and give McVeigh and Nichols a fair day in court.

"He's just one of the best lawyers I've ever known," he said. "I couldn't imagine a better man to have on the bench."

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Alley graduated with a bachelor's and later a law degree from Stanford University. He was in private practice for two years, then joined the Army in 1959.

One of his first assignments was as an assistant judge advocate at Ft. Sill. He later taught at the Army's Judge Advocate General's School in Charlottesville, Va., served as a courts-martial judge in the late '60s in Saigon during the Vietnam War and became a judge at the Army's Court of Military Review. His last posting was as the Army's top judge in Europe between 1979 and 1981.

It was on the Court of Military Review, where he heard an appeal in the case of the United States vs. Calley, that he made his first mark on the national scene. Calley was convicted in the slayings of at least 22 South Vietnamese civilians and was sentenced to life in prison at hard labor.

Alley, assigned to hear the soldier's appeal, affirmed the sentence in what the Almanac of the Federal Judiciary called "the most comprehensive modern explication of an officer's criminal liability for murder in the field during hostilities."

Alley asserted, in language that could be applied to today's Oklahoma City case, that despite the high-profile nature of the My Lai tragedy, justice could still be served.

"Unquestionably," Alley wrote then, "the publicity engendered by the My Lai incident was massive and made the court-martial of Lt. Calley a cause celebre. However, the intensity and extent of media activity alone does not prevent the operation of judicial processes. Society's interest in criminal justice is not properly determined by media response or public opinion polls."

Another line from his decision also reflects the Judge Alley of today: "Judicial calm and dignity were maintained by strict control of the court premises."

Other former military lawyers and judges say that experience in military law provides excellent preparation for a civilian trial judge.

"Military people have demonstrated themselves to be trustworthy, loyal and brave," said David Brahms, a retired Marine Corps brigadier general now in private practice in Carlsbad, Calif. "They have met the test in most instances of adhering to a code of ethics and doing it well and doing it for a long time."

Alley left the Army in 1981, became dean of the Oklahoma University law school and was appointed a federal judge in 1985. (He and his wife, Marie, a travel agent, live in Norman; they have five children.)

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Even in civilian robes, however, Alley did not forget where he had come from, nor did he lose the fierce loyalty bred into a career soldier.

In 1987, Alley sentenced an associate of James Gordon (Bo) Gritz to five years in prison for illegally transporting explosives to Oklahoma City. The Pentagon considers Gritz a malcontent, a self-described soldier of fortune who ran paramilitary missions to Southeast Asia in search of prisoners of war.

When he sentenced the Gritz associate, David Scott Weekly, Alley warned that the Constitution determined the country's military and foreign relations policies, and that "they don't include Bo Gritz's band of paramilitarists."

In another case involving hazardous waste, Alley ordered a group of polluters to pay a fine and to wash the police cars in Oklahoma City for a year.

But the judge has not always been tough on defendants. In Alley's very first trial as a civilian judge, John Coyle, a local defense attorney, won a reduction in the drug counts filed against his client.

Before Alley again last year, Coyle won a dismissal for his client and three other men, all African Americans, in one of the biggest drug busts in the state.

Coyle showed that the Oklahoma Highway Patrol stopped the men only because they were black, an instance that fit a pattern of police stops in the state. As a result, Alley threw out the evidence found in the arrest--more than three kilograms of crack cocaine and two kilograms of marijuana--and the government dropped the case.

Alley also promptly gave a piece of his mind to local law enforcement, warning that police could not stop people just because they did not like their looks. Otherwise, the judge said, soon "it may be hippie-looking folks in Volkswagen buses."

With sentiments like that, Alley strikes Coyle and many other defense attorneys as the right judge for the Oklahoma City case.

"I take him at his word," said Coyle, who represented McVeigh immediately after his arrest but then dropped out for personal reasons. "When Judge Alley says he has no preconceived notions about the case, I believe him."

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