APPELLATE court refuses to dismiss Nichols case

OKLAHOMA CITY (AP) _ An Oklahoma appellate court ruled Wednesday that trying Terry Nichols on state murder charges for the Oklahoma City bombing does not violate Nichols' right against being tried

Thursday, July 12th 2001, 12:00 am

By: News On 6

OKLAHOMA CITY (AP) _ An Oklahoma appellate court ruled Wednesday that trying Terry Nichols on state murder charges for the Oklahoma City bombing does not violate Nichols' right against being tried twice for the same offense.

The Oklahoma Court of Criminal Appeals ruled that Nichols, convicted of federal bombing charges and sentenced to life in prison, can also be tried in state court on 160 counts of first-degree murder for the 1995 bombing of the Alfred P. Murrah Federal Building.

But in a sharply worded dissent, one member of the five-member court said he believes the state's ``double jeopardy'' rule bars state prosecutors from bringing Nichols to trial a second time.

Judge Charles S. Chapel of Tulsa also questioned whether Nichols can receive a fair trial in Oklahoma.

``The magnitude of the suffering inflicted upon this state by the Murrah Building bombing raises the question whether Terry Nichols, or anyone else charged with this crime, really can get a 'fair trial' and be accorded the same protections that our criminal justice system promises all defendants,'' Chapel wrote in a 37-page dissenting opinion.

Nichols, 46, was acquitted on federal murder charges but convicted of conspiracy and involuntary manslaughter for the deaths of eight federal law enforcement officers in the bombing, which killed 168 people.

Nichols was also found innocent of other federal charges, including use of a weapon of mass destruction and malicious destruction of federal property.

The appellate court's ruling upholds a decision handed down March 21 by state District Judge Ray Dean Linder, who denied Nichols' motion to dismiss the state charges. Oklahoma prosecutors are seeking the death penalty.

Nichols claimed that state and federal double jeopardy guarantees bar state prosecutors from trying him a second time and from prosecuting him for offenses for which he was previously found innocent.

But the appellate court ruled the federal rule has been found inapplicable when an offense violates both state and federal laws.

The court also rejected Nichols' argument that his acquittal on federal murder charges prevents him from being tried on state murder charges. Prosecutors maintain that the state charges involve different victims than the federal charges.

``Petitioner has not been 'acquitted' of the same acts for which the state seeks to prosecute,'' the court said. ''...The federal and state offenses are sufficiently distinct so that successive prosecutions are not a violation of double jeopardy.''

In his dissenting opinion, Chapel said prosecuting Nichols on state murder charges ``is undeniably a second criminal trial for the same acts'' for which he was tried in federal court.

The appellate court's ruling violates the rule of double jeopardy, ''...namely, the protection of an accused against multiple prosecutions for the same crime and the finality of acquittals,'' he wrote.

''...I conclude that this court is applying the wrong test to decide this question and is misapplying the test that it chooses to use,'' he wrote.

Nichols' preliminary hearing, scheduled to begin July 18, was postponed after Nichols' attorneys asked to withdraw from the case unless they get adequate pay. A hearing in the case is scheduled Aug. 22.