Court upholds Macy disqualification in Nichols case

But the appellate court reversed District Judge Ray Linder's decision to also disqualify Macy's office from the case and ruled that there is insufficient evidence to bar Macy's assistants from prosecuting Nichols on 160 counts of first-degree murder.

In an eight-page ruling, the court said there is "no evidence"

that Macy's assistants can not fulfill their responsibilities as "ministers of justice" and that Macy's first assistant, John Jacobsen, "will be able to perform the duties of the district attorney if the district attorney is disqualified."

The ruling indicates that the assistant district attorneys Macy assigned to prosecute Nichols can proceed under Jacobsen's supervision. Prosecutors are seeking the death penalty.

Neither Jacobsen nor Macy were immediately available for comment.

Judge Steve Lile of Lawton offered the only dissent. Lile said he disagreed with the order to disqualify Macy but concurred in setting aside the order that disqualified his office.

The decision was praised by Attorney General Drew Edmondson, who filed a friend of the court brief urging the court to allow Macy's office to remain on the case. Edmondson would have had to appoint another district attorney to prosecute Nichols if Macy and his office was disqualified.

"Under the terms of this ruling, our office will not be required to appoint another district attorney," Edmondson said.

On Oct. 16, Linder ordered Macy as well as his office off Nichols' case because of published and broadcast comments by the district attorney that Linder said violated a gag order and were "a blatant violation of the rules of professional conduct."

Law professors and other witnesses testified that Macy's remarks could prevent Nichols from getting a fair trial.

Macy argued that his statements were made to affect public opinion and that no evidence was offered that the statements were made to effect the fact-finding process of a jury.

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.

The appellate court rejected arguments by Macy that Linder was not legally authorized to disqualify the district attorney and ruled that the judge acted within the law when he disqualified Macy for violation of a court-imposed gag order.

But the court said Macy's disqualification "does not mean that all lawyers in the district attorney's office shall be disqualified."

The court said testimony during the disqualification hearing primarily involved Macy's conduct and that "no other testimony was given concerning the disqualification of the entire district attorney's office."

"Disqualification of an entire office cannot be based upon speculation," the decision said.

Nichols, 45, faces state murder charges for the April 19, 1995, bombing of the Alfred P. Murrah Federal Building.

A federal jury in Denver convicted Nichols of involuntary manslaughter in the deaths of eight federal agents and conspiracy.

His codefendant, Timothy McVeigh, was convicted on eight counts of first-degree murder and weapons counts and was sentenced to death.

McVeigh awaits execution at a federal prison in Indiana.