Judge disqualified from Nichols Hearing

Wednesday, August 9th 2000, 12:00 am
By: News On 6

OKLAHOMA CITY (AP) -- A state judge disqualified Associate District Judge Robert Murphy Jr. on Wednesday from presiding over pretrial hearings in the murder case against bombing conspirator Terry Nichols.

District Judge Charles Goodwin ruled that Murphy violated ethics codes when he had private talks with a law firm about serving as his law clerk. "I can't come to any other conclusion other than there was a considerable volume of conversation with the Chubbuck law firm relating to serving as a law clerk for Judge Murphy," Goodwin said. "I think that is an ethical violation of the canons."

Murphy did not attend the hearing and was not immediately available for comment. Aides said he was handling his regular court docket in Payne County.

Nichols was charged last year with 160 counts of murder in the April 19, 1995, bombing of the Alfred P. Murrah Federal Building. He was returned to Oklahoma in January from a federal prison in Colorado.

The decision means a new judge will have to be appointed by the state Supreme Court, and that could prolong the Nichols case.

June Chubbuck, a former classmate of Murphy, had volunteered to help with legal research for free but a judicial ethics advisory panel told Murphy that he should not use the firm. Her husband, Gary Chubbuck, and another attorney have criticized District Attorney Bob Macy in death penalty appeals. Macy is seeking the death penalty for Nichols.

Assistant District Attorney Richard Wintory said affidavits indicate that Murphy met with members of the law firm for three hours. The meeting put the state "at a tremendous disadvantage" because it occurred while defense motions to dismiss the case were pending.

Although members of the firm said nothing substantial was discussed, Wintory argued the meeting had "an appearance of communications that are hostile and adversarial to the state."

"It appears to the court that perhaps that kind of conversation is prohibited," Goodwin said during the two-and-one-half hour hearing. "It appears to the court that that is prohibited conversation."

Goodwin said he regretted the ramifications of his decision, which will require the appointment of another judge. "This case needs to be resolved. When litigants have cases, they need to be resolved expeditiously," Goodwin said.

His ruling cannot be appealed. Nichols is serving a federal life prison sentence on federal bombing conspiracy and involuntary manslaughter charges. Co-defendant Timothy McVeigh was sentenced to death on eight federal murder counts.

"We're just delighted that this is resolved," said Diane Leonard, whose husband was killed in the bombing. "We have learned through the last five years that the legal process does not move quickly."

Leonard said members of bombing victims' families who were not part of the federal prosecution still support plans to try Nichols, 45, on state charges. "They haven't had their day in court. They will now," Leonard said.

The federal case involved eight federal law officers who died. It was not immediately clear how the decision will affect Nichols' Oct. 9 preliminary hearing date, but Wintory said he believes the hearing can still take place. The preliminary hearing will determine whether Nichols should stand trial on state murder charges.

Goodwin issued a rebuke to one prosecutor, Assistant District Attorney Sandra Howell-Elliott, while rejecting arguments that Murphy should be removed from the case for threatening her wit contempt. "I think that was proper," Goodwin said. "Her zealousness had affected her ability to act as counsel."

Murphy had twice denied similar motions to disqualify himself, setting up Wednesday's hearing before Goodwin, a judge from Clinton. Prosecutors had accused Murphy of bias against them and of being "openly hostile" to their side. Nichols' attorneys argued that the judge was not biased or prejudiced against prosecutors.