Defense attorney Barbara Bergman said a ruling by the state Court of Criminal Appeals that upheld the disqualification of District Attorney Bob Macy from Nichols' case stopped short of also disqualifying Macy's staff over allegations of professional misconduct.
But Assistant District Attorney Richard Wintory said the state's highest court has no jurisdiction to resolve a dispute over whether Macy's staff can ethically try Nichols on 160 counts of murder for the April 19, 1995, Oklahoma City bombing.
Wintory said only the Court of Criminal Appeals can decide the issue and that the court was correct when it declined to disqualify Macy's staff.
Wintory said allegations of professional misconduct by Macy's assistants should be directed to the Oklahoma Bar Association, not the Supreme Court.
In October, District Judge Ray Dean Linder removed Macy and all of his assistants from Nichols' prosecution. In December, the appellate court reinstated the assistants, ruling there was no evidence they could not fulfill their responsibilities as "ministers of justice".
Bergman told Supreme Court referee Wayne Snow that the appellate judges deferred allegations against Macy's staff to the Supreme Court, which is responsible for enforcing the state's rules of professional conduct.
"They simply said it is not up to us to apply those rules,"
Bergman said. "They didn't apply them at all. They simply chose to ignore them."
Bergman urged Snow to recommend that the state's highest court assume jurisdiction and decide whether Macy's staff can ethically prosecute Nichols.
"These issues have never been ruled upon, have never been resolved," she said. "If this court does not take jurisdiction, those rules would not have been enforced."
Wintory said professional conduct rules cited by Bergman applied only to private law firms and not public prosecutors.
"Government agencies are different creatures," Wintory said.
"The nature of government service is different than that of a private law firm."
Snow did not indicate when he will make his recommendation to the Supreme Court.
Linder ruled that Macy violated the rules of professional conduct as well as a gag order that prohibits anyone directly involved with the case from discussing it.
"It was a blatant violation by an experienced prosecutor,"
Linder said. "His conduct was improper. His conduct was disqualifying. He takes his whole office with him."
Among other public comments, Macy gave an interview to CBS in April in which he said: "I've sent several people to death row for killing one person. I certainly feel that death would be the appropriate punishment for killing 19 babies."
Nineteen children were among the bombing's 168 victims. Macy's office is seeking the death penalty for Nichols.
Nichols was brought to Oklahoma City on Jan. 31, 2000, from Colorado, where he was serving a life prison sentence for his federal conviction on eight first-degree manslaughter counts and conspiracy charges.