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Angered by the life sentence Terry Nichols received for his role in the Oklahoma City bombing, Oklahoma District Attorney Robert H. Macy last year filed 160 state murder charges in an effort to make sure that Nichols is put to death. As the trial nears, the DA has taken the unexpected step of delaying the case. First, he wants to get rid of the judge, who he says frivolously threatened an assistant with contempt, engaged in ex parte telephone calls with the defense, and, bizarrely, tried to get members of a local law firm to work for him as law clerks on the case. On July 20, Oklahoma Associate District Judge Robert M. Murphy Jr. denied the prosecution’s second attempt to disqualify him and excoriated Macy for further delaying the case. Macy’s office says he will appeal. Some Oklahoma legal observers say that the district attorney’s recusal attempt is emblematic of the wrongheaded approach he has taken to the case, one that may guarantee reversal of any eventual Nichols conviction or death sentence. Andrew M. Coats, dean of the University of Oklahoma Law Center — and Macy’s predecessor as district attorney and a former mayor of Oklahoma City — calls the recusal effort “nonsense.” “The purpose of this trial is to obtain the death penalty, [something] the appellate courts won’t uphold unless Nichols gets a perfect trial,” Coats explains. “The prosecution ought to be very benevolent. Instead, they are fighting over little things. They’re missing the boat.” STRANGE DOINGS Nichols was convicted in U.S. district court in Denver in 1997 for conspiring with Timothy J. McVeigh in the April 19, 1995, bombing of Oklahoma City’s Alfred P. Murrah Federal Building, which killed 168 people and injured 850. On April 19 of this year, President Clinton presided over the opening of a memorial on the former site of the building. But even after two federal trials and a state grand jury investigation into whether there were other conspirators, Macy, who is 70 years old and in his twentieth year as district attorney, still wants the bombers tried in Oklahoma. Despite editorials admonishing him for reopening old wounds, polls indicating most Oklahomans oppose the prosecution, and legislative attempts to defund the case, Macy remains adamant. Because McVeigh’s death sentence has survived several appeals, Macy decided to focus on Nichols, 45, who was delivered to him by U.S. marshals on Feb. 1 from the federal supermaximum-security penitentiary in Florence, Colo. On March 29, 1999, Macy charged Nichols with 160 counts of first-degree murder — omitting the eight federal agents whose murders were prosecuted in federal court — and one count each of murder, aiding the placement of a bomb, and manslaughter in the death of one bombing victim’s unborn child. Murphy was appointed by the Oklahoma State Supreme Court to hear pretrial matters in Nichols’ state case. He was brought in from Stillwater, 40 miles northeast of Oklahoma City. A judge since 1994, he is known for having once sentenced a defendant to visit the grave of his victim regularly. Beyond that, lawyers who practice before him say, Murphy has kept a low profile — until now. On May 8, he granted Court TV the right to film Nichols’ preliminary hearing, over the objections of both sides, a move later overturned by the Oklahoma Court of Criminal Appeals. “I was a little shocked by the ruling, since the law … says both sides must acquiesce, but I understand his position that he wanted Oklahomans to see the case,” says Gary James, an Oklahoma City lawyer appointed to represent McVeigh, should the state ever prosecute him. “Some people say you’re going to taint the jury pool, but considering how much this jury pool has already been tainted, watching the preliminary hearing … won’t make it any worse.” The alleged ex parte contact with Nichols’ lawyer, Brian Hermanson, of Ponca City, Okla.,, was over the TV issue. Then, on May 15, Murphy ruled that Hermanson’s wife could go to the county jail to cut Nichols’ hair, over the objection of his jailers. Nichols was reportedly fearful that anyone else might try to injure him, but the judge looked at it from a grooming perspective. “The law presumes him innocent and this includes the right for him to have the appearance of innocence,” Murphy wrote in his order. But what prompted the recusal motion, first made informally to the judge on June 15, was the combination of his request for legal assistance in a May 31 letter to the state judicial ethics panel; an alleged contempt threat he made to Assistant District Attorney Sandra Howell-Elliott for her “facial expressions” during a status conference; and alleged ex parte phone calls made to Hermanson. Murphy wrote the ethics panel that he was working as late as 2 a.m. every night and needed help preparing for the case. June Chubbuck, managing partner of Oklahoma City’s Chubbuck Smith Rhodes Stewart & Elder, had offered to assist the judge for free, but the ethics panel ruled on June 12 that that would be improper. The firm does criminal defense work, and Elliot said in moving for recusal that two of its lawyers had accused prosecutors of misconduct in capital cases. “The state is worried he is going to rule favorably on some of those motions or throw the case out,” says James, who adds that, while Murphy is less conservative than most local judges, it may be politically untenable for him to throw the case out at such an early stage. At the preliminary hearing, Murphy is empowered to throw out any of the state charges that he rules aren’t supported by probable cause. Other Oklahoma lawyers say they can understand why Murphy might threaten the prosecutors with contempt. “I was present at one of those hearings, and I think the prosecutors acted so poorly — making faces, slamming papers around, and being demented children, like they were trying to bully him into ruling in their favor,” says Coats. As of July 21, the state Supreme Court had yet to appoint a judge to hear Macy’s appeal of Murphy’s order. MORE HURDLES Even if he makes it past a preliminary hearing, Macy still faces some hurdles in getting the case to a jury. Hermanson argues that the crime’s notoriety and the broad swath of Oklahomans affected by it preclude a fair state trial. He has spent six months challenging the case on jurisdictional, statute-of-limitations and double-jeopardy grounds. In April, he sought to have Macy removed because of the DA’s personal connections to some of the victims and sought to have Macy sanctioned for violating the case’s gag order — which both sides cited in declining comment. Bob Ravitz, chief public defender for Oklahoma County, says Hermanson could reasonably argue that collateral estoppel bars a death sentence against Nichols because one jury has already considered and rejected it — unless Macy develops new aggravating factors that could show Nichols’ intent. However, Ravitz says that he believes it is possible to get a fair jury if the trial takes place in a remote county. One prosecutor in Macy’s office who requested anonymity says that the state has an easier task than federal prosecutors. “Malice aforethought under Oklahoma law is simply that you intended for the victim to die,” he says. The statute defines malice aforethought as “that deliberate intention unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof.” Enid, Okla., lawyer Stephen Jones, McVeigh’s first attorney, says he believes Macy has a good chance of getting a death sentence — and making it stick. “Macy’s got the federal prosecution outline. He’s been to school by watching the first Nichols defense,” Jones says. “It is always a mistake to underestimate Bob Macy. There are graveyards here full of people who have.”

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