Referee hears arguments in judge's appeal of dismissal from Nichols case

Friday, September 15th 2000, 12:00 am
By: News On 6

OKLAHOMA CITY (AP) -- Calling it a miscarriage of justice, attorneys for federal building bombing co-conspirator Terry Nichols asked an Oklahoma Supreme Court referee to intervene in a dispute that led to the dismissal of the judge overseeing the pretrial proceedings.

The state's high court should assume original jurisdiction and overturn an Aug. 9 order disqualifying Associate District Judge Robert M. Murphy Jr., defense lawyers argued in Thursday's hearing before referee Greg Albert.

Albert told the attorneys that the session was not a review on the merits of the disqualification hearing. He said he wanted to know how the state Supreme Court could review something a legal rule says cannot be appealed and why the Supreme Court, rather than the Oklahoma Court of Criminal Appeals, was asked to consider the issue.

Barbara Bergman, one of Nichols' attorneys, said the Supreme Court oversees the lower courts and can step in when the system fails. The situation was extreme and extraordinary because the judicial system failed in part due to prosecutorial misconduct, she said.

Murphy said he wanted to contest his removal because of the "smear on my good name and reputation" and a fear his removal will set a precedent.

"Personally, I would just as soon not have this assignment one day longer," the Payne County judge said Thursday. "I have no desire to hold on to this case."

District Judge Charles L. Goodwin of Clinton disqualified Murphy after Oklahoma County prosecutors complained that he was prejudiced toward them.

Goodwin, who was specially appointed to hear their complaints, ruled that Murphy violated ethical canons by meeting with an Oklahoma City law firm about doing legal research on the case.

Prosecutors sought the removal because two attorneys from that law firm had accused them of misconduct in other murder cases.

Murphy argued he did nothing unethical. He said his removal sets a precedent for any judge to be disqualified for "casual social contact" with attorneys.

Prosecutor Richard Wintory on Thursday suggested Nichols'

lawyers are interested in increasing their pay in the case.

Nichols' defense team is paid about $60,000 a month.

Wintory also said Murphy had a "substantive" conversation with the law firm, much different from the routine contacts judges have everyday with attorneys at courthouses. Prosecutors objected to Albert allowing Murphy to state his position.

The hearing at which Goodwin disqualified Murphy was not fair or impartial, Bergman said. Wintory countered, saying legal rules are clear that when one judge disqualifies another, the issue cannot be appealed.

Nichols, 45, is charged with 160 counts of first-degree murder in the 1995 bombing of the Alfred P. Murrah Federal Building, which resulted in 168 deaths.

A federal jury convicted Nichols of eight counts of involuntary manslaughter and of conspiracy and sentenced him to life in prison.

An Oct. 9 preliminary hearing will determine whether state prosecutors have enough evidence against Nichols for a trial.

Albert will write a report for justices.