Terry Nichols judge turns down prosecution motion

Tuesday, November 18th 2003, 12:00 am

By: News On 6

OKLAHOMA CITY (AP) _ A judge in the state murder case against Oklahoma City bombing conspirator Terry Nichols rejected a prosecution bid Tuesday to strike 44 federal witnesses the defense wants to interview.

Sandy Elliott, Oklahoma County assistant district attorney, said she will appeal District Judge Steven Taylor's decision to the Oklahoma Court of Criminal Appeals.

She said it was ``inappropriate'' for Taylor to have approved last month a list of 61 witnesses the defense could interview without giving the state an opportunity to make an objection.

She asked the judge to disallow interviews of 14 of the 61 witnesses because proper paperwork had not be filed with prosecutors.

She also asked the judge to delete 30 witnesses whom she said the federal government will likely deny because they have nothing to do with the Nichols case.

Defense attorney Brian Hermanson, Elliott argued, is attempting to ``walk through the federal files on other cases'' that are not related to the 1995 bombing of the Alfred P. Murrah Federal Building that killed 168 and injured hundreds.

Among the 30, she said, are former U.S. Attorney Steve Lewis of Tulsa and those associated white supremacists groups and Elohim City, a compound in northeast Oklahoma that Timothy McVeigh reportedly visited before the Oklahoma City bombing.

McVeigh was convicted on federal murder charges and was executed in June 2001.

Elliott said the federal government did not use those witnesses in Nichols' federal trial in Denver and will not be willing to turn them over for defense interviews in the Oklahoma case.

Taylor, in turning down Elliott's motion, said it was lodged too late in the process. Hermanson contended prosecutors should have protested the witness list within 10 days after it was approved by the judge.

Nichols, 48, was convicted of federal conspiracy charges in the deaths of eight federal agents and is serving a life term. In the Oklahoma case, he faces 161 counts of first-degree murder for the 160 other victim of the Oklahoma City bombing, plus a fetus whose mother was killed in the blast. Prosecutors are seeking the death penalty.

Judge Taylor defended his ruling last month setting deadlines for the federal government to arrange interviews by Nichols' defense, saying it is his duty to keep the case on track toward a March 1 trial in McAlester.

At one point, Oklahoma County District Attorney Wes Lane wrote U.S. Attorney John Ashcroft that Taylor had become ``visibly frustrated'' because the federal government had not provided witnesses and might dismiss the case or disallow the death penalty.

So far, Nichols' attorneys have questioned 23 federal witnesses, but Hermanson told the judge he fears another logjam is developing in the interview process.

Taylor said he had been ``told over and over again since June by the Department of Justice that they will cooperate ...I assume they are people of their word.''

He scheduled another hearing for Dec. 1 to review the case's progress.

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