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Oklahoma Bombing Judge Says He Can Be Impartial : Trial: Lawyer for presiding jurist asks appeals court to keep him on case. Defense argues he should step down because blast damaged his chambers.

TIMES STAFF WRITER

The judge assigned to preside over the Oklahoma City bombing trial asked an appeals court Monday to affirm his decision to remain on the case, despite the objections of defense attorneys who contend that he cannot be objective because the blast damaged his chambers and courtroom.

U.S. District Judge Wayne E. Alley “is not a victim” and “does not regard himself as a victim” of the blast, attorney Harry F. Tepker Jr. wrote on behalf of the judge.

“No reasonable person not present on April 19 and not suffering any personal loss or injury would believe themselves to be a victim,” Tepker wrote in papers filed with the U.S. Court of Appeals in Denver. Alley was not present on the day of the explosion.

Federal prosecutors also asked the appellate court to consider the question of Alley’s recusal, expressing concerns that if the court did not evaluate the matter rigorously, attorneys for accused bombing conspirators Timothy J. McVeigh and Terry L. Nichols might have any conviction tossed out on appeal.

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Prosecutors stressed that Alley’s removal is not legally required. But they urged the court to “evaluate the recusal matter at least as rigorously as it would in a post-conviction appeal so that the matter is decided now once and for all as law of this case.”

The prosecutors said there is no case like the one in Oklahoma City, where the judge appears to be affected by the April 19 tragedy that left 169 people dead and more than 600 injured.

“We recognize that the facts of this case are unique,” prosecutors said. “We know of no other case addressing the question whether a district judge may preside at the trial of defendants who are alleged to have damaged his chambers, his courtroom and the courthouse, and who are alleged to have injured court personnel.”

Legal matters in the bombing case have been stymied since Alley postponed most decisions until after a final decision on his recusal.

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Defense attorneys initially asked the judge to step down after the indictment of McVeigh and Nichols in August.

The government agreed with that request at the time, saying there was an appearance of a conflict for the judge. The government’s argument to the appeals court is somewhat different, emphasizing instead that the judges should try to make a final decision on the question so as to undercut its potential to overturn any conviction.

Alley already has ruled that he would not step aside. He contended that his courtroom and chambers were only slightly damaged. And he noted that he was not in the courthouse on the morning of the blast and that he left town for personal reasons soon after the bombing.

Nichols’ attorneys appealed Alley’s decision. They argued that the bombing of the Alfred P. Murrah Federal Building--located across the street from the federal courthouse--makes it impossible for anyone on the local federal court bench to fairly and impartially hear the trial.

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Alley disagreed and hired Tepker, a local attorney and member of the faculty at the University of Oklahoma Law Center, to draw up his legal brief for the appellate court.


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