Judge refused to disqualify himself

Thursday, June 15th 2000, 12:00 am
By: News On 6

OKLAHOMA CITY (AP) -- Associate District Judge Robert M. Murphy Jr. refused Thursday to disqualify himself from presiding over the
preliminary hearing for bombing conspirator Terry Nichols, who is charged with murder in the Oklahoma City bombing.

Murphy denied the request at the end of a day of closed-door hearings, said Cheryl Camp, public information officer for the Administrative Office of the Courts.

"He did not recuse himself from the case at this point," Camp said. It was not clear who asked Murphy to remove himself from the
case or why. Murphy has issued a gag order and attorneys in the case declined comment.

State rules for district court judges permit the
disqualification request to be made again before the chief judge of Oklahoma County, District Judge Bryan Dixon.

The closed hearings took place on the day that Nichols was expected to learn whether Murphy would grant his motion to dismiss
state murder charges for the Oklahoma City bombing. The hearing on that motion and others was continued until July 3.

Bob Nelon, a media attorney, was one of at least three people who were called into the courtroom during the closed-door session.

Murphy granted a motion by Nelon last month to permit Nichols' preliminary hearing and other pre-trial hearings to be televised, but the decision was reversed by the state Court of Criminal Appeals.

In an appeal to the state Supreme Court, Nelon states that the appellate court did not give Murphy a chance to respond before it
granted Nichols' motion to overrule Murphy's order allowing hearings to be televised.

"...No opportunity was afforded the petitioners, on behalf of Judge Murphy, to defend the district court order or to raise other issues...," Nelon's appeal states.

Gary Chubbuck, an attorney, also was called into the closed hearing. Chubbuck is with an Oklahoma law firm that volunteered to work as law clerks for Murphy.

Murphy has asked a state advisory panel on judicial ethics whether he can ethically accept free legal support. Murphy said he is doing his regular caseload as well as matters leading up to Nichols' preliminary hearing, which is set to begin on Aug. 7.

Also admitted into the courtroom during the closed hearing was Oklahoma City attorney Lana Tyree.

Nichols' mother, Joyce Wilt, had planned to attend Thursday's hearing and briefly spoke with reporters outside the courtroom.

"Terry is innocent. God will take care of it," Wilt said.

Wilt, who lives in Michigan, said she met with her son for about one hour Wednesday night and will remain in Oklahoma through

Murphy, of Stillwater, was appointed to decide whether Nichols should go to trial on 163 charges, including 160 counts of first-degree murder, for the April 19, 1995, bombing of the Alfred P. Murrah Federal Building.

Among other things, defense attorney Brian Hermanson has argued that the murder charges violate Nichols' constitutional guarantee against double jeopardy, or being tried twice for the same offense.

Nichols, 45, also claims that the double jeopardy guarantee prohibits Oklahoma County District Attorney Bob Macy from seeking
the death penalty.

Nichols' motion argued it is unconstitutional to try him in Oklahoma because he has already been tried and convicted in federal court on bombing-related charges.

Macy claims he can prosecute Nichols because the federal and state judicial systems are separate. He said the state charges
distinguish the case from Nichols' federal trial, where he was accused of the deaths of eight federal agents killed in the bombing.

The blast resulted in 168 deaths. The 160 state murder counts do not include the eight federal officers.

Defense attorneys also claim that publicity about the bombing and Nichols' federal conviction make it impossible for him to receive a fair trial in Oklahoma. Prosecutors said the motion is premature because Nichols has not been ordered to stand trial.

Nichols was found guilty of eight counts of involuntary manslaughter and one count of conspiracy to use a weapon of mass
destruction following a federal trial in Denver.

He was brought to Oklahoma City on Jan. 31 from Colorado, where he was serving a life
prison sentence.

Nichols was found innocent of use of a weapon of mass destruction, destruction by explosive and eight counts of first-and second-degree murder.

Nichols' co-defendant, Timothy McVeigh, was convicted on federal murder charges and sentenced to death. State charges have not been filed against McVeigh.

Prosecutors have urged Murphy to dismiss other defense motions alleging that Nichols cannot be tried on certain state charges for
lack of jurisdiction and because the time limit for prosecution has expired.

In addition to the murder charges, Nichols faces one count of first-degree manslaughter for the death of an unborn child whose
mother was killed, one count of conspiracy to commit murder and one count of aiding and counseling in the placing of a substance or
bomb near a public building.