Judge Removed From Bombing Trial : Crime: Appeals court doubts that he can be unbiased about Oklahoma City blast that killed 169. Defense, prosecution sought his recusal.

Despite his insistence that he can fairly try the men accused in the Oklahoma City bombing, U.S. District Judge Wayne E. Alley was removed from the case Friday because of questions about whether the bombing next door to his courthouse had left him biased against the defendants.

The U.S. 10th Circuit Court of Appeals in Denver, responding to concerns from defense attorneys and prosecutors, also ruled that the enormity of the April 19 tragedy has created a situation in Oklahoma City in which Timothy J. McVeigh and Terry L. Nichols cannot receive a fair and impartial trial under any federal judge here. The appeals court now will name a judge from outside Oklahoma City to preside over the trial.

A total of 169 people were killed, more than 600 were injured and hundreds of businesses were destroyed. The bombing of the Alfred P. Murrah Federal Building--the worst terrorist attack in U.S. history--also caused nearly $1 million in damage to the U.S. District Courthouse building across the street.

“Judge Alley’s courtroom and chambers were one block away from the epicenter of a massive explosion that literally rocked downtown Oklahoma City, heavily damaged the Murrah building, killed 169 people, and injured many others,” the appellate judges found.

“Based on these circumstances, we conclude that a reasonable person could not help but harbor doubts about the impartiality of Judge Alley.”

Defense attorneys Michael E. Tigar and Stephen Jones, along with federal prosecutors here and in Washington, had urged Alley to voluntarily step aside or face being ordered off the case.

But Alley, 63, a former Army general and high-ranking military law official who was appointed to the federal bench 10 years ago, vigorously maintained that he was not adversely affected by the bombing.

He noted that he was not in the courthouse on the morning of the bombing, that he knew none of the dead or injured and that damage to his chambers and courtroom was minimal. He even took the unusual step of hiring a private attorney to file legal papers with the appellate court insisting that he should stay on the case.

The appeals judges in Denver, however, did not agree.

“The explosion inflicted massive damage to the U.S. federal courthouse,” the three-judge appellate panel wrote in its 10-page ruling.

“Over 100 windows shattered and were blown out. The explosion caused substantial damage to interior ceilings, walls and fixtures. The explosion decimated the glass doors at the entrance to the courthouse.

“District court chambers located on the third and fourth floors along the north side of the courthouse, including Judge Alley’s third-floor chambers and courtroom were heavily damaged.

“Flying glass damaged woodwork and furniture in Judge Alley’s courtroom. Parts of the ceiling collapsed in Judge Alley’s chambers. Plaster ceiling tiles fell from the office ceilings and light fixtures were dislodged and left hanging.

“The skylight in Judge Alley’s courtroom shattered, covering the courtroom floor in an inch of broken glass.”

The appeals judges applauded Alley for attempting to show no bias against the defendants.

“We commend Judge Alley for his integrity in upholding what he sees as his clear judicial duty,” the appellate panel said. “There is certainly no allegation here of judicial impropriety. Judge Alley has conducted himself in these proceedings with true professionalism.”

Tigar, Nichols’ defense attorney who fought hardest for Alley’s recusal, had little comment after hearing the ruling. “The opinion speaks for itself,” he said.

Jones, who represents McVeigh, initially asked Alley to step aside voluntarily. But when the judge refused, Jones did not join with Tigar in appealing the matter to the 10th Circuit in Denver.

“They made the right decision,” he said. “It’s the only decision that could be made. It would be treated with skepticism if an Oklahoma City judge whose courtrooms were so heavily damaged had presided over this case.”

Carl Stern, the chief spokesman for the Justice Department in Washington, said: “The ruling is consistent with the concerns we expressed. It was our point that Judge Alley was not required under the law to step aside. But we did express our concern that out of an abundance of caution, it might be best to eliminate this as an issue.”

Although the chief judge of the 10th Circuit, Stephanie K. Seymour, will appoint a replacement for Alley from outside Oklahoma City, the new jurist will come from within the circuit. The circuit includes Kansas, Colorado, New Mexico and other areas of Oklahoma.