McVeigh seeks emergency order to remove judge from appeal

Wednesday, April 5th 2000, 12:00 am

By: News On 6

DENVER (AP) -- Convicted Oklahoma City bomber Timothy McVeigh is seeking an emergency order asking an appeals court to remove U.S. District Court Judge Richard Matsch from McVeigh's bid for a new trial.

Matsch, who has presided over the case since it was moved to Denver in 1996, refused last month to disqualify himself from hearing motions to dismiss McVeigh's federal murder conviction and death sentence on the grounds of ineffective counsel.

The judge ruled there was insufficient evidence to support claims that his previous statements about McVeigh's trial attorney, Stephen Jones, showed partiality and could jeopardize McVeigh's bidfor a new trial.

In a motion filed Tuesday with the 10th U.S. Circuit Court of Appeals, McVeigh's lawyer argues that Matsch's favorable comments about Jones "show a clear predisposition ... regarding any claim by Mr. McVeigh that his trial counsel rendered ineffective assistance of counsel."

"Recusal is warranted not because (Matsch) may actually be prejudiced," defense lawyer Dennis Hartley wrote, "rather recusal is warranted to eliminate any appearance of bias."

McVeigh was convicted in the April 19, 1995, bombing of the Alfred P. Murrah Federal Building. The bombing left 168 people dead and hundreds injured.

The U.S. Supreme Court refused to hear arguments last year that McVeigh's trial was tainted by jury misconduct and news reports that he confessed.

The latest appeal, filed last month, targets Jones, saying the Enid, Okla., lawyer leaked inflammatory stories about McVeigh to the media. The appeal also claims Jones promoted a questionable theory about foreign terrorists to stoke interest in his book about the case.

In seeking to show that Matsch cannot make an impartial ruling on a motion of ineffective counsel, Hartley pointed to a 1997 exparte discussion in which the judge told Jones that "it would be hard for me to see how (ineffective counsel) is a meritorious issue."

"This statement demonstrates beyond all doubt that the issue of ineffective assistance of counsel has been predetermined by the district court judge," Hartley wrote. "He has issued an opinion as to the likelihood of success of this issue, and his opinion is that the issue lacks merit."

Also filed Tuesday and made public Wednesday was a motion to allow McVeigh to proceed with his recusal request without having to prepay court costs.