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A Judgment Call : District Judge Wayne E. Alley Insists He Can Be Fair in Trying the Oklahoma City Bombing Case

October 05, 1995|RICHARD A. SERRANO | TIMES STAFF WRITER

OKLAHOMA CITY — "If there is a hell to which disputatious, uncivil, vituperative lawyers go," the judge once told a team of bickering attorneys, "let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes."

Similarly exasperated on another occasion, he declared: "This case makes me lament the demise of dueling." Pistols at 10 paces, he suggested, would guarantee "a salubrious reduction in the number of counsel to put up with."

To put it mildly, U.S. District Judge Wayne E. Alley, 63, does not suffer easily the rivalry of opposing attorneys. But when prosecution and defense lawyers in the Oklahoma City bombing case recently joined in common cause to push for his replacement as the trial judge, he quickly--and firmly--refused to budge.

Insisting that he could be fair and objective despite the damage to his courtroom and chambers from the bombing last spring of the federal building across the street, Alley suddenly injected a whole new issue into the case:

Himself.

A former brigadier general, Alley served as a military judge in the Vietnam War, where he heard 1st Lt. William L. Calley's appeal in the infamous My Lai massacre case. After 22 years in the military, he became dean of the University of Oklahoma School of Law until President Ronald Reagan appointed him a decade ago to the federal bench in Oklahoma City.

Lawyers here know him as stern and disciplined: a "stickler for procedural rules," a judge who "won't let lawyers play dirty tricks."

Now he faces the severest test of his judicial life. Like other judges in high-visibility national trials, he must retain control over prosecutors and defense lawyers driven to the limit by the legal ramifications of the worst act of domestic terrorism in American history.

When it comes to dominating a courtroom, Alley has few peers. But that is only half the challenge in ensuring that Timothy J. McVeigh and Terry L. Nichols are not rushed to judgment.

In a case of this magnitude, he also must preserve both the fact and the appearance of fairness. To satisfy history, he must show that--despite the public pressure for retribution--he will go any reasonable distance to give two of the most reviled men in America their day in court.

That, legal analysts say, will be the hard part. Moments after his announcement that he would stay on the case, lawyers on both sides began making plans to appeal his decision. They argue that no member of the Oklahoma City judiciary could be impartial on an event of such tragic consequences so close to home.

The judge insists with characteristic certitude that, even though he can look out his courthouse window and see the bombed-out crater across the street where the Alfred P. Murrah Federal Building once stood, he nonetheless can handle the trial with evenhanded control.

In a series of extraordinary pronouncements, the judge has filed three orders defending his objectivity and making it clear he intends to hold onto the reins. The first came just days after McVeigh and Nichols were indicted and Alley was chosen at random to preside over their trial.

He played down the bomb's damage to his third-floor courtroom. He noted that he was at home at the time of the blast, that only one member of his staff was injured--slightly--and that he did not attend the funerals of any of the 169 who died.

He said he could think of only one past case as a judge in which "I did have animosity toward one defendant [and] I recused myself." He did not elaborate.

"I intend to conduct a trial in a fair, objective and dignified manner," he declared, "in full realization that the rights of all parties should be scrupulously observed."

A week later, he laid down precise pretrial guidelines for prosecutors and defense lawyers, even to the point of stipulating that only three lawyers from each side would be allowed at the counsel tables. He also set out plans for separate juror questionnaires, one for a trial here, the other for a trial elsewhere.

Then on Sept. 14 he filed a 21-page order turning down the joint prosecution-defense request that he step aside. He cited a number of other major cases, including the 1979 murder of U.S. District Judge John Wood of Texas in which one of Wood's colleagues, who was a pallbearer at his funeral, was chosen to try the assassins.

He also dismissed allegations that he was biased simply because his courtroom was so close to the bomb's epicenter.

"In this case," he said, "I see nothing looking north from the courthouse that any other distant citizen has not seen dozens of times."

He announced that he would hold the trial in Lawton, Okla., a military town next to the Ft. Sill artillery training post. Ft. Sill was one of his own first duty assignments in the Army.

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