*1 TITLE: Terry Lynn Nichols, Petitioner-Defendant v. The Honorable Wayne E. Alley, Respondent.

TOPIC: PETITION FOR WRIT OF MANDAMUS OF PETITIONER-DEFENDANT TERRY LYNN NICHOLS AND BRIEF IN SUPPORT

DOCKET-NUMBER: CR 95-110-A

VENUE: U.S. Court of Appeals, Tenth Circuit.

YEAR: Filed: September 27, 1995

JUDGE: Per Curiam

ATTORNEY(S): Michael E. Tigar, Esq., Austin, Ronald G. Woods, Esq., Houston, D. Kate Rubin, Deputy Federal Public Defender, Oklahoma City, For the Defendant Terry Lynn Nichols.

TEXT:

Petitioner-defendant Terry Lynn Nichols, by his undersigned counsel, hereby petitions the Court to issue a writ of mandamus directing Respondent, the Honorable Wayne E. Alley, to recuse himself from the proceeding against petitioner-defendant, United States of America v. Timothy James McVeigh and Terry Lynn Nichols, CR-95-110-A (W.D. Okla., filed August 10, 1995), and further disqualifying all other district judges of the Western District of Oklahoma from presiding over this matter, or, in the alternative, directing Judge Alley to permit discovery and hold an evidentiary hearing regarding the factual bases for disqualification issues raised in petitioner-defendant's motion for recusal.

The grounds for this petition are as follows:

1. On August 22, 1995, co-defendant Timothy McVeigh filed a Motion for Recusal of District Judge seeking recusal of Judge Alley and all other judges of the Western District of Oklahoma, pursuant 28 U.S.C. ss 144 and 455, which motion was subsequently joined by petitioner-defendant Nichols.

2. On August 23, 1995, petitioner-defendant Nichols filed a Motion for Recusal and Request for Discovery and Evidentiary Hearing seeking recusal of Judge Alley and all other judges of the Western District of Oklahoma, pursuant to 28 U.S.C. ss 144, 455(a) and 455(b)(1).

3. On September 8, 1995, the government filed its response to these motions, maintaining that recusal of Judge Alley and the other Western District judges was not required as a matter of law but nevertheless urging him and the other Western District judges to recuse themselves voluntarily.

4. On September 14, 1995, Judge Alley denied defendants' motion for recusal and declined the government's suggestion that he voluntarily recuse himself.

5. For the reasons stated in the attached Brief in Support of Petition for Writ of Mandamus of Petitioner-Defendant Terry Lynn Nichols, Judge Alley's ruling was clearly and indisputably erroneous as a matter of law, and issuance of a writ of mandamus is the appropriate remedy in the circumstances of this case.

*2 WHEREFORE, petitioner-defendant Terry Lynn Nichols respectfully requests that this Court grant this petition and issue a writ of mandamus directing Respondent, the Honorable Wayne E. Alley, to recuse himself from the criminal proceeding against petitioner-defendant, United States of America v. Timothy James McVeigh and Terry Lynn Nichols, CR-95-110-A (W.D.Okla., filed August 10, 1995), and further disqualifying all other district judges of the Western District of Oklahoma from presiding over this matter, or, in the alternative, directing Judge Alley to permit discovery and hold an evidentiary hearing regarding the factual bases for disqualification issues raised in petitioner-defendant's motion for recusal.

Respectfully submitted,
__________________________
Michael E. Tigar
150 East Tenth
Denver, CO 80203

Ronald G. Woods
5300 Memorial, Suite 1000
Houston, TX 77007

Adam Thurschwell
N. Reid Neureiter
Jane B. Tigar
1120 Lincoln, Suite 1308
Denver, CO 80203

Kate Rubin

(303) 831-4059
Fax (303) 831-6232

Counsel for Terry Lynn Nichols
(Appointed by the Court)

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................................... ii

ISSUE PRESENTED ............................................................. 1

FACTUAL AND PROCEDURAL BACKGROUND ........................................... 1

ARGUMENT .................................................................... 5

I.  JUDGE ALLEY'S DENIAL OF THE RECUSAL MOTIONS ARE REVIEWABLE UPON

PETITION FOR WRIT OF MANDAMUS ........................................ 5

II.  JUDGE ALLEY AND THE OTHER JUDGES OF THE WESTERN DISTRICT OF OKLAHOMA

SHOULD BE DISQUALIFIED ............................................... 7

A.  Judge Alley and the other judges should be disqualified       11

pursuant to 28 U.S.C. ss 144 and 455(b)(1) for "personal

bias and prejudice"

B.  Judge Alley and the other judges should be disqualified       18

pursuant to 28 U.S.C. s 455(b)(1) due to "personal

knowledge of disputed evidentiary facts concerning the

proceeding"

C.  Judge Alley and the other judges should be disqualified       20

pursuant to 28 U.S.C. s 455(a) because their "impartiality

might reasonably be questioned"

D.  Judge Alley and the other judges may not preside over this    29

case consistent with the Due Process Clause of the fifth

amendment of the Constitution

CONCLUSION ................................................................. 33

TABLE OF AUTHORITIES

Federal Cases

Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986) ............ 30

Barksdale v. Emerick, 853 F.2d 1359 (6th Cir.1988) ............ 2

Berger v. United States, 255 U.S. 22 (1921) ............ 11, 13

Bloom v. Illinois, 391 U.S.194 (1968) ............ 31

Burton v. Johnson, 948 F.2d 1150 (10th Cir.1991), cert denied, 113 S.Ct. 1879 (1993) ............ 17, 18

Chapman v. California, 386 U.S. 18 (1967) ............ 7

Easley v. University of Michigan Board of Regents, 853 F.2d 1351 (6th Cir.1988) ............ 2

Faulkner, In re, 856 F.2d 716 (5th Cir.1988) ............ 19, 26

Frates v. Weinshienk, 882 F.2d 1502 (10th Cir.1989), cert denied, 494 U.S. 1004 (1990) ............ 6

Guttierez de Martinez v. Lamagno, 115 S.Ct. 2227 (1995) ............ 12

Haines v. Liggett Group, Inc., 975 F.2d 81 (3d Cir.1992) ............ 29

Hall v. Small Business Administration, 695 F.2d 175 (5th Cir.1983) ............ 25

Harris v. Champion, 15 F.3d 1538 (10th Cir.1994) ............ 29

Hinman v. Rogers, 831 F.2d 937 (10th Cir.1987) ............ 6

Hunley v. Godinez, 975 F.2d 316 (7th Cir.1992) ............ 16, 18

IBM Corp, In re, 618 F.2d 923 (2d Cir.1980) ............ 6

Irvin v. Dowd, 366 U.S. 717 (1961) ............ 16

Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988) ............ passim

Liteky v. United States, 114 S.Ct. 1147 (1994) ............ passim

Mayberry v. Pennsylvania, 400 U.S. 455 (1971) ............ 31, 32

Mims v. Shapp, 541 F.2d 415 (3d Cir.1976) ............ 15

Murchison, In re, 349 U.S. 133 (1955) ............ passim

Offutt v. United States, 348 U.S. 11 (1954) ............ 30

Parker v. Connors Steel Co., 855 F.2d 1510 (11th Cir.1988), cert denied, 490 U.S. 1066 ............ 20, 25

Public Utilities Comm'n of D.C. v. Pollak, 343 U.S. 451 (1952) ............ 10

School Asbestos Litigation, In re, 977 F.2d 764 (3d Cir.1992) ............ 6, 29

Smith v. Phillips, 455 U.S. 209 (1982) ............ 16

Tafero v. Wainwright, 796 F.2d 1314 (11th Cir.1986), cert denied, 483 U.S. 1033 (1987) ............ 9

Taylor v. Hayes, 418 U.S. 488 (1974) ............ 30, 31

Texaco, Inc. v. Chandler, 354 F.2d 655 (10th Cir.1965) cert denied, 383 U.S. 936 (1966) ............ 5, 6

Tison v. Arizona, 481 U.S. 137 (1987) ............ 22

Tumey v. Ohio, 273 U.S. 510 (1927) ............ passim

United States v. Alabama, 828 F.2d 1532 (11th Cir.1987), cert denied, 487 U.S. 1210 (1988) ............ 29

United States v. Burger, 964 F.2d 1065 (10th Cir.1992) ............ 20

United States v. Conforte, 624 F.2d 869 (9th Cir.), cert denied, 449 U.S. 1012 (1980) ............ 9

United States v. Cooley, 1 F.3d 985 (10th Cir.1993) ............ passim

United States v. Fernandez, 480 F.2d 726 (2d Cir.1973) ............ 28

United States v. Greenspan, 26 F.3d 1001 (10th Cir.1994) ............ passim

United States v. Harrelson, 754 F.2d 1153 (5th Cir.), cert denied, 474 U.S. 908 (1985) ............ 9, 25

United States v. Jordan, 49 F.3d 152 (5th Cir.1995) ............ 9, 26

United States v. Lovaglia, 954 F.2d 811 (2d Cir.1992) ............ 25

United States v. Nobel, 696 F.2d 231 (3d Cir.), cert denied, 462 U.S. 1118 (1983) ............ 23

United States v. Ritter, 273 F.2d 30 (10th Cir.1959), cert denied, 362 U.S. 950 (1960) ............ 5

United States v. Ritter, 540 F.2d 459 (10th Cir.) (per curiam), cert denied, 429 U.S. 951 (1976) ............ 6

United States v. Ryan, 455 F.2d 728 (9th Cir.1971) ............ 27

United States v. Story, 716 F.2d 1088 (6th Cir.1983) ............ 12

United States v. Gigax, 605 F.2d 507 (10th Cir.1979) ............ passim

Wilks v. Israel, 627 F.2d 32 (7th Cir.1980), cert. denied, 449 U.S. 1086 (1981) ............ 31

Constitution, Statutes and Rules

28 U.S.C. s 144 ............ passim

28 U.S.C. s 455 ............ passim

28 U.S.C. s 455(a) ............ passim

28 U.S.C. s 454(b)(1) ............ passim

28 U.S.C. s 116(c) ............ 5, 27

18 U.S.C. s 3592(c) ............ 19

18 U.S.C. s 2332(a) ............ 22

18 U.S.C. s 844(f) ............ 22

Fed.R.Crim.P. 31(c) ............ 22

Local Rule of Court 3(D) ............ 27

Fed.R.Crim.P. 18 ............ 28

Other Authorities

Dr. Bonham's Case, 8 Co.Rep. 113b, 77 Eng.Rep 646 (K.B.1609) ............ 12

Dudley, "Getting Beyond the Civil/Crininal Distinction: A New Approach to Regulation of Indirect Contempt," 79 Va. L. Rev. 1025 (1993) ............ 30

Federalist No. 10, The, 79 (C. Rossiter ed. 1961) (J. Madison) ............ 12

Leubsdorf, "Theories of Judging and Judge Disqualification," 62 N.Y.U. L. Rev. 237 (1987) ............ 10

Note, "The Illegitimacy of the Extrajudicial Source Requirement for Judicial Disqualification Under 28 U.S.C. s 455(a)," 15 Cardozo L. Rev. 787 (1993) ............ 29

ISSUE PRESENTED

*3 Whether a judge who has been victimized by the commission of a crime which inflicted massive damage on his chambers, courtroom and the courthouse where he sits and caused injury and trauma to a number of courthouse personnel including a member of his personal staff, may, consistent with 28 U.S.C. ss 144 and 455 and the Due Process Clause of the fifth amendment to the Constitution, preside at the trial of a person charged with the crime after both the defendant and the government have requested that he recuse himself, and whether the right to such relief is enforceable by mandamus under this Circuit's precedent. [FN1]

FN1. Some Members of this Court may have such relationship to the events in issue that they will recuse themselves from this proceeding. The petition sets forth sufficient facts to permit such evaluation.

End of FN.

FACTUAL AND PROCEDURAL BACKGROUND

The facts giving rise to this petition are essentially undisputed. [FN2] On April 19, 1995, an enormous explosion occurred at the base of the Alfred P. Murrah Federal Building in Oklahoma City. The explosion inflicted massive damage on the nearby Federal Courthouse, including extensive damage to the courtroom and chambers of Respondent, the Honorable Wayne E. Alley, and substantial injury, trauma and emotional suffering to the courthouse staff, including injury to one of Judge Alley's staff members.

FN2. As we argue herein, the present record alone mandates disqualification of Judge Alley. Nevertheless, apart from the facts of which we are aware, there remain significant unresolved factual questions regarding the scope of the injury to Judge Alley's and other courthouse personnel, damage caused to his chambers and the courthouse, and the extent of Judge Alley's relationship with those injured, which bear on the appropriateness of recusal. While Judge Alley has made some generalized disclosures regarding the effect of the bombing on him and his staff--including statements that "two or three items" of his personal property received "minor nicks," that an unidentified member of his staff received "superficial scratches and bruises," and that his "personal office was not severely damaged"--these raise more questions than they answer about the explosion's specific effect on him and the other judges. (Exh. B, Notice to Counsel, at 2-3.) Accordingly, our Motion for Recusal and Request for Discovery and Evidentiary Hearing requested discovery and an evidentiary hearing as alternative relief in the event the district court decided recusal was not mandated on the record before it. (Exh. C, Nichols Motion, at 22-24, 28.) Judge Alley's opinion fails to address or mention this request, and has denied other related requests for discovery. (Exh. H.)

These factual questions remain outstanding and cast an independent pal on the decision not to recuse. Accordingly, in the event disqualification is not mandated by this Court on the present record, the Court should remand the issue for the requested discovery and evidentiary hearing. See Barksdale v. Emerick, 853 F.2d 1359, 1363 (6th Cir.1988) (party seeking recusal "should be given the opportunity to develop a full record for the basis of the disqualification"); Easley v. University of Michigan Board of Regents, 853 F.2d 1351, 1352 (6th Cir.1988) (remanding for evidentiary hearing because, although some asserted grounds for disqualification were "patently meritless[,][o]thers require[d] explication").

End of FN.

*4 The extent of the damage to the courthouse (amounting to over $1,000,000, measured by General Services Administration contracts issued for the clean-up) is graphically documented in the affidavits, photographs and videotape submitted in connection with the motions for recusal filed by Mr. Nichols and co-defendant McVeigh. [FN3] Over one hundred windows were shattered, and substantial damage was caused to interior ceilings, walls and fixtures. Most heavily damaged were the district judge's chambers located on the third and fourth floors along the north side of the building (facing the bomb site), which include Judge Alley's third floor chambers and courtroom. Ceilings collapsed (including the ceiling in parts of Judge Alley's chambers); flying glass caused substantial damage (including damage to woodwork and furniture in Judge Alley's courtroom); door hinges were damaged (including those in Judge Alley's courtroom), causing the doors to jam; and light fixtures were dislodged and left hanging. The skylight in Judge Alley's courtroom shattered, covering the courtroom floor in an inch-deep of broken glass. (Exhs.B, C.)

FN3. Mr. Nichols joined Mr. McVeigh's motion for recusal below.

End of FN.

Courthouse personnel suffered numerous injuries apart from the property damage. One judge received cuts on his head, other judicial staff also received lacerations, a member of the Clerk's staff had to be hospitalized, and several secretaries were sufficiently traumatized that they have missed substantial work-time. Among those injured was a member of Judge Alley's personal staff, who Judge Alley reported received "superficial scratches and bruises." Others with courthouse connections were injured in the Murrah Building itself. The Clerk of the District Court, Robert Dennis, was in the Murrah Building at the time of the bombing and was buried in rubble. A member of the Clerk's staff lost a child in the Murrah Building day care center, and a judicial clerk's child who was also in the day care center was badly injured. (Exhs.B, C.)

Understandably, the primary reactions of the courthouse community to these traumatic events have been efforts to heal and an outpouring of sympathy for victims who were killed, injured and who lost loved ones, efforts which continue to the present day. A pamphlet offering counseling and healing services was distributed in the Clerk's office. A memorial wreath was displayed in the public area of the Clerk's office for two months after the bombing, purple ribbons commemorating those killed and injured were hung from the Courthouse doors, and other memorabilia were made available in the Courthouse. Also perhaps understandably, although inappropriately, in at least one instance this deference to the Courthouse victims has manifested itself at the expense of Mr. Nichols. As related in detail in the exhibits to Mr. Nichols's Supplemental Pleading Regarding Recusal, at Mr. Nichols' arraignment members of the "courthouse family" (m the words of the United States Marshal), including the employee who lost a child in the Murrah Building child care center, were given privileged access to seats on the bench inside the courtroom well, while Mr. Nichols' own family was relegated to seats in the far rear corner of the courtroom. (Exhs.B, D.)

*5 On August 10, 1995, a grand jury handed down an indictment against petitioner-defendant Terry Lynn Nichols, charging him with responsibility for the bombing that caused the damage, injury and trauma to the Courthouse and its personnel.

On August 14, 1995--before any motion to recuse him had been filed--Judge Alley filed and distributed to defense counsel a "Notice to Counsel" stating, inter alia:

I know of no reason whatsoever that would be a basis for self-recusal pursuant to 28 U.S.C. s 455. Of course, this notice is not intended to foreclose submission of a motion for recusal support by Affidavit and Certificate of Good Faith pursuant to s 144. (Exh. B, Notice to Counsel at 4.)

On August 22, 1995, co-defendant Timothy McVeigh filed a Motion for Recusal of District Judge, which was subsequently joined by petitioner-defendant Nichols. On August 23, 1995, petitioner-defendant Nichols filed a Motion for Recusal and Request for Discovery and Evidentiary Hearing seeling recusal of Judge Alley and all other judges of the Western District of Oklahoma, pursuant to 28 U.S.C. ss 144, 455(a) and 455(b)(1). On September 8, 1995, the government filed its response to these motions, maintaining that recusal of Judge Alley and the other Western District judges was not required as a matter of law. The government nevertheless urged that Judge Alley and the other district judges recuse themselves voluntarily, explaining that "[i]t is of paramount importance that the nation have complete confidence in the integrity of the verdict ultimately reached in this case, and that partisan detractors not be permitted--however wrongly--to raise questions about judicial fairness" and that "[t]here is too much at stake here to risk even an erroneous reversal." (Exh. G (Gov't Response), at 1).

On September 14, 1995, Judge Alley denied defendants' motion for recusal and declined the government's suggestion that he voluntarily recuse himself finding it to be "improvident." In the same Order--again without any motion to transfer having been filed--he also transferred the case to Lawton, Oklahoma for trial pursuant to 28 U.S.C. s 116(c) and Local Rule of Court 3(D), stating, inter alia, that "[t]he United States Courthouse in Oklahoma City is too close to the bombing target," and that "[j]ury selection from a pool in the Oklahoma City area would be chancy." (Exh. A, at 4, 20.)

ARGUMENT

I. JUDGE ALLEY'S DENIAL OF THE RECUSAL MOTIONS ARE REVIEWABLE UPON PETITION FOR WRIT OF MANDAMUS

Mr. Nichols' right to the requested disqualification relief is clear and indisputable under governing precedent of the Supreme Court and this Circuit.

Like the vast majority of circuits, this Court holds that a district judge's denial of a motion for recusal is reviewable by petition for writ of mandamus. Texaco, Inc. v. Chandler, 354 F.2d 655 (10th Cir.1965), cert. denied, 383 U.S. 936 (1966). In Chander, the Court held:

*6 The jurisdiction of this court to take action to guarantee a fair and impartial trial is no longer open to question. Upon an adequate showing, this court has held that it has the 'power and inescapable duty', whether under the allwrits statute, 28 U.S.C. 1651, or under its inherent powers of appellate jurisdiction, 'to effectuate what seems to us to be the manifest ends of justice.' 354 F.2d at 657 (quoting United States v. Ritter, 273 F.2d 30, 32 (10th Cir.1959), cert. denied, 362 U.S. 950 (1960)).

See also United States v. Cooly, 1 F.3d 985, 996 n. 9 (10th Cir.1993) ("a district court's refusal to disqualify under s 455(a) may be challenged on direct appeal following conviction as well as by use of mandamus"). Accordingly, the Court routinely addresses the merits of mandamus petitions seeking review of denials of motions for recusal without separately considering the appropriateness of the otherwise extraordinary mandamus remedy. See e.g. United States v. Ritter, 540 F.2d 459 (10th Cir.) (per curiam), cert. denied, 429 U.S. 951 (1976) (motion under ss 144 and 455; reaching and discussing merits of recusal issue on mandamus without addressing mandamus jurisdiction; petition granted); Frates v. Weinshienk, 882 F.2d 1502 (10th Cir.1989), cert. denied, 494 U.S. 1004 (1990) (motion under s 455; same; petition denied); Hinman v. Rogers, 831 F.2d 937 (10th Cir.1987) (per curiam) (motion under ss 144 and 455; same; petition denied); see also In re School Asbestos Litigation, 977 F.2d 764, 777-78 (3d Cir.1992); In re IBM Corp., 618 F.2d 923, 927 (2d Cir.1980) ("A claim of personal bias and prejudice strikes at the integrity of the judicial process, and it would be intolerable to hold that the disclaimer of prejudice by the very jurist who is accused of harboring it should itself terminate the inquiry until an ultimate appeal on the merits").

Immediate review of a meritorious motion for recusal is justified by considerations of judicial economy. A trial plainly tainted from the outset by a partial adjudicator (or one who lacks the requisite appearance of impartiality) is destined for eventual reversal and retrial, which is why courts require that "a motion to recuse ... be filed promptly after the facts forming the basis of disqualification become known." United States v. Gigax, 605 F.2d 507, 511 (10th Cir.1979). An even more significant justification for immediate review, however, is the importance of the value at stake: the fundamental "guarantee [of] a fair and impartial trial." Chandler, 354 F.2d at 657. As the Supreme Court has noted, the concern for an impartial judge embodied by the recusal statutes "has constitutional dimensions." Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 865 n. 12 (1988).

*7 As we discuss below, in the unique circumstances presented here it will in fact violate the Due Process Clause should Judge Alley (or any of the other Western District judges) continue to preside over this case. This species of constitutional error, moreover, is not subject to harmless error analysis. Chapman v. California, 386 U.S. 18, 24 n. 9 (1967) (citing Tumey v. Ohio, 273 U.S. 510 (1927)).

Immediate and unqualified review therefore serves all parties' interests, [FN4] as well as the systemic interest in efficient allocation of judicial resources.

FN4. We note that the government's odd position in its Response below-- arguing both for and against the judge's recusal--is forced upon it by the procedural posture in which it finds itself. While evidently (and correctly) fearing that Judge Alley's or other Western District judges' participation will make its case vulnerable on appeal (should it progress that far), the government cannot join with the defendants and argue that recusal is mandated as a matter of law without risk of waiving its ability to contest the defendants' (potentially dispositive) recusal argument, should that argument be raised on direct appeal from a conviction. Thus, regardless of whether the government in fact agrees that recusal of Judge Alley and the other district court judges is mandated as a matter of law, the government cannot take this position explicitly. That its actual position with respect to the recusal issue is closer to the defendants' than it is in a position to admit openly is signalled by its heavy reliance in its brief below on the possibility of purportedly "erroneous reversal" by this Court should Judge Alley fail to recuse himself. (Exh. G, at 1.)

End of FN.

II. JUDGE ALLEY AND THE OTHER JUDGES OF THE WESTERN DISTRICT OF OKLAHOMA SHOULD BE DISQUALIFIED

The issue posed by this case is simply stated: can a judge who, along with his co-workers, has himself been directly victimized by a crime of violence sit in judgment over one accused of committing that very crime? That Judge Alley and the other judges were in fact victimized by the Murrah Building bombing is not open to serious question. The explosion had a traumatic effect on all connected with the Courthouse: the judges' everyday place of work was devastated, at least one judge and many of their co-workers received injuries, schedules were disrupted, and the emotional effects of these events linger to this day, as evidenced by the memorials to victims and victim-counseling services pamphlets still offered in the Courthouse. By Judge Alley's own account, his immediate reaction to news of the bombing was concern that members of his staff might have been injured, and his chambers and courtroom were badly damaged, a staff member was in fact injured, and he suffered minor damage to his personal property. (Exh. B, Notice to Counsel, at 2.)

The significance of the bombing's effects on the courthouse cannot be side- stepped, as the government attempts to do, by relying on semantic niceties like a distinction between a judge's "official" and "personal" capacities--a distinction expressly rejected by the Supreme Court in Liteky v. United States, 114 s .Ct. 1147 (1994). [FN5] Nor are victims of the bombing restricted to those actually present in the Courthouse at the time of the explosion, as Judge Alley suggests. (Exh. B, Notice to Counsel, at 1-2 (Judge Alley was at home at time)). One whose place of work is burglarized (or bombed) while she is on vacation is not less "victimized" because of her absence. Nor does it matter for recusal purposes that Judge Alley believes in good faith that he has not been victimized by the crime, because the judge's good faith belief in his own impartiality is not a relevant consideration under any of the recusal standards, statutory or constitutional.

FN5. Compare Exh. G, Gov't Response, at 7 ("any damage to court facilities affected him only in an official, and not a personal, capacity") with Liteky 114 S.Ct. at 1154 ("[b]ias and prejudice seem to us not divided into the 'personal' kind, which is offensive, and the official kind, which is perfectly all right").

End of FN.

*8 In sum, under any reasonable definition of "victimization"--and certainly any definition sensitive to the concern underlying the recusal statutes, the " 'possible temptation to the average man as a judge ... not to hold the balance nice, clear, and true between the State and the accused,' " In re Murchison, 349 U.S. 133, 136 (1955) ( quoting Tumey v. State of Ohio, 273 U.S. 510, 532 (1927))--the judges of the Western District were "victimized" by the crime.

Thus, the overriding error in Judge Alley's opinion is the failure to give any weight to the direct, adverse effects the bombing had on him personally in his consideration of whether recusal is appropriate. This is the "thread" that he finds missing in Mr. Nichols' arguments below. (Exh. A, Order, at 18.) Instead of considering the fact that he himself has been victimized by the bombing, Judge Alley focusses his entire attention on a separate issue--whether he had any relationship with any of the (other) victims of the bombing. [FN6] A judge's relationships with other victims are indeed significant, as we discuss below in connection with s 455(a), but they should not be confused with the case in which the judge has himself suffered direct effects as a result of the crime.

FN6. The three cases that introduce his opinion, for example, are all "relationship" cases. None of them bear any resemblance to the instant case. United States v. Harrelson, 754 F.2d 1153 (5th Cir.), cert. denied, 474 U.S. 908 (1985) (professional relationship with victim); United States v. Conforte, 624 F.2d 869 (9th Cir.), cert. denied 449 U.S. 1012 (1980) (relationship with defendant); Tafero v. Wainwright, 796 F.2d 1314 (11th Cir.1986), cert. denied, 483 U.S. 1033 (1987) (habeas case decided under constitution; professional relationship with victim).

End of FN.

In part because this case is indeed unique and in part because recusal cases tend to be "extremely fact intensive and fact bound," United States v. Jordan, 49 F.3d 152, 157 (5th Cir.1995), precedents addressing the instant situation are rare. But the absence of direct precedent is also attributable to the fact that recusal is so clearly required in circumstances like those presented here that judges ordinarily voluntarily recuse themselves (as the government requested Judge Alley do here) without any need to file an opinion or discuss the legal merits. [FN7] In any event, whether voluntary or mandated by a reviewing court, the reasons for self-recusal where the judge has been personally and directly affected by the crime on trial are abundantly clear: the possibility of unconscious bias regardless of the good faith and intentions of the judge, and the appearance of partiality. [FN8] Unsurprisingly, as we demonstrate in the following sections, this situation falls squarely within the reach of ss 144 and 455, as well as the Due Process Clause of the fifth amendment.

FN7. As one commentator notes, "a judge who withdraws usually writes no opinion. Published opinions, consequently, form an accumulating mound of reasons and precedents against withdrawal; meanwhile, some judges routinely and silently disqualify themselves in comparable cases." Leubsdorf, "Theories of Judging and Judge Disqualification," 62 N.Y.U.L.Rev. 237, 244-5 (1987).

End of FN.

FN8. Justice Frankfurter provided a succinct explanation for the need for self-recusal in recusing himself from an appeal that posed a far less compelling case of judicial "victimization" than the one presented here:

The judicial process demands that a judge move within the framework of relevant legal rules and the covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case.... The fact is that on the whole judges do lay aside private views in discharging their judicial functions.... But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment, or may not unfairly lead others to believe they are operating, judges recuse themselves. They do not sit in judgment. They do this for a variety of reasons. The guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact.

This case for me presents such a situation. My feelings are so strongly engaged as a victim of the practice in controversy that I had better not participate in judicial judgment upon it.

Public Utilities Comm'n of D.C. v. Pollak, 343 U.S. 451,466-467 (1952) (Frankfurter, J., in chambers) (Supreme Court held, without Justice Frankfurter participating, that radio programs played in the streetcars and busses of the District of Columbia Transit Authority did not violate the first or fifth amendments).

End of FN.

*9 If this Court decides that Judge Alley's and the other Western District judges' continuing participation in this case would cause a reasonable person to question their impartiality within the meaning of 28 U.S.C. s 455(a), then it need not reach the other bases for disqualification discussed below. Cooley, 1 F.3d at 995-6 ("Because of this holding [under s 455(a) ] it is unnecessary for us to address the allegations under s 144 or s 455(b)(1) of actual bias against the defendants"). Nevertheless, because of the clarity of the right to relief and the importance of ensuring that the conduct of this trial is beyond reproach, we address the other statutory and constitutional provisions mandating disqualification as well.

A. Judge Alley and the other judges should be disqualified pursuant to 28 U.S.C. ss 144 and 455(b)(1) for "personal bias and prejudice"

Judge Alley correctly held that Mr. Nichols met the procedural requirements of s 144 (relating to the form and timing of the supporting affidavit), so the only issue here is whether the court's conclusion that the facts set forth in Mr. Nichols affidavit are insufficient to support a finding of "personal bias or prejudice either against him or in favor of any adverse party." (Exh. A, Order, at 7.) Section 455(b)(1) prescribes recusal for the same reasons as s 144 but is self-executing and is not restricted to the facts stated in the affidavit. (Id. at 10.) Because the "personal bias or prejudice" clause of s 455(b)(1) is construed in pari materia with the identical language of s 144, we discuss these two claims together. Liteky, 114 S.Ct. at 1153.

Recusal is mandated under 28 U.S.C. s 144 "[i]f the facts give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment." United States v. Gigax, 605 F.2d 507, 511 (10th Cir.1979) ( quoting Berger v. United States, 255 U.S. 22, 33-34 (1921)). Judge Alley has made it clear that he does not consider himself to be "personally biased or prejudiced" against Mr. Nichols. However, if the party seeling recusal submits an affidavit and the judge determines that the facts alleged are legally sufficient, "the judge must recuse even though the statements may not accurately reflect the judge's state of mind." Gigax, 605 F.2d at 511. [FN9] Underlying these principles is the obvious point that the judge's actual "state of mind" is ultimately knowable with certainty only to himself. Accordingly, s 144 requires only a showing of facts sufficiently probative of that state of mind to "give fair support" to the claim of personal bias or prejudice.

FN9. Judge Alley appears to have applied an erroneous standard of proof regarding the s 144 showing. After correctly citing Gigax for the "fair support" standard, he then cites a Sixth Circuit case for the proposition that the facts must be "such as would 'convince a reasonable man that a bias exists.' " Exh. A, Order, at 8 (quoting United States v. Story, 716 F.2d 1088, 1090 (6th Cir.1983)). The correct test, under Berger and Gigax, is whether the facts "give fair support" to a biased or prejudicial "bent of mind."

End of FN.

*10 In Mr. Nichols' affidavit he set forth facts sufficient to show that Judge Alley was directly and personally affected by the violent crime with which Mr. Nichols was charged. The hoary principle [FN10] that "no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome," In re Murchison, 349 U.S. 133, 136 (1955), is broad enough to cover the case of a judge who was a victim of the very crime charged in the trial over which she is presiding, and to justify imputing "personal bias or prejudice" to the judge as a matter of law. Cf. United States v. Greenspan, 26 F.3d 1001, 1005-6 (10th Cir.1994) (judge who received information that defendant scheduled for sentencing was participant in conspiracy to murder him should have recused himself pursuant to s 455(a)).

FN10. See Dr. Bonham's Case, 8 Co. Rep. 113b, 77 Eng. Rep. 646 (K.B.1609) (also reported as College of Physician's Case, 2 Br. & Gold. 256, 123 Eng. Rep. 928); see also The Federalist No. 10, p. 79 (C. Rossiter ed. 1961) (J. Madison); Guttierez de Martinez v. Lamagno, 115 S.Ct. 2227, 2233 (1995).

End of FN.

Judge Alley, however, found that Mr. Nichols' showing was "an ipse dixit" consisting of "naught but speculation, conjecture and accusation" based on an assumption that the judge was afflicted with "a conscious or unconscious urge for revenge, brought about by some osmotic process" that "bears a curious resemblance to the discredited fallacy of 'guilt by association.' " (Exh. A, Order, at 8, 9.) Given the specific, careful good faith and uncontradicted factual allegations set forth in Mr. Nichols' s 144 affidavit, the somewhat contemptuous tone of these conclusions is unwarranted. More importantly, they miss the entire thrust of Mr. Nichols' claim of "personal bias or prejudice." The specifics that Judge Alley find lacking (id. at 8) are amply supplied in the detailed descriptions of the damage and injury done to his chambers, courtroom, staff and the Courthouse and its personnel. The affidavit states that Judge Alley himself (as well as those who work close to him) experienced devastating consequences at his place of work as a result of the Murrah Building bombing, and that the individual who the government has charged with responsibility for that devastation is a party to the litigation before him. These are the specific facts and circumstances that "give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment." Gigax, 605 F.2d at 511 (quoting Berger, 255 U.S. at 33-34).

We thus do not dispute as a general principle that "[a]llegations of general sorrow in the workplace do not translate into prejudice towards this particular defendant" (Exh. A, at 9), but the Nichols Affidavit sets forth far more than "general sorrow"--it sets forth general devastation. Similarly, it is undoubtedly the case, as the government argued below, that "every federal judge in the country knows about, and is horrified by, the carnage and suffering caused by the April 19th bombing." (Exh. G, Gov't Response, at 8-9.) But it is emphatically not the case that the chambers and courtroom of "every federal judge in the country" were devastated by the April 19th bombing. Surely there is a meaningful distinction to be made between "suffering direct consequences of a crime" and "knowing about a crime." The former plainly tends to "give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment" on the part of the one who was victimized by the crime, regardless of whether the latter does or not.

*11 This "bias or prejudice" is, moreover, "personal" to Mr. Nichols within the meaning of the statute. Judge Alley held that

[b]ecause the bias must be specifically shown to be against the movant personally, deploring the alleged crime itself cannot be the land of bias contemplated by the statute. The missing link is showing why these environmental factors would result in a judicial bent to retaliate against these two defendants, who are presumed to be innocent. (Exh. A, Order, at 9.)

Again, what is alleged in the Nichols affidavit is more than that Judge Alley "deplor[ed] the alleged crime," it is that he was directly and personally affected by it. The "link" connecting to Mr. Nichols, moreover, is the fact that he is the one charged with committing the crime. To date a grand jury, a judge and a magistrate of the Western District of Oklahoma and a panel of this Court have concluded that there is probable cause to believe that Mr. Nichols is responsible for the damage and injuries caused in the Federal Courthouse. It is difficult to see how much stronger a "link" to Mr. Nichols there could be at this stage of the proceedings. [FN11] A judge is personally biased if she has an attitude toward a party "that is significantly different from and more particularized than the normal general feelings of society at large," Mims v. Shapp, 541 F.2d 415, 417 (3d Cir.1976), a condition which is plainly met by the "attitude" of a victim of a crime toward one formally charged with the crime. [FN12]

FN11. The fact that Mr. Nichols is "presumed to be innocent" is of course true as a matter of law but irrelevant here; what is at stake is whether the facts alleged in the affidavit lend fair support to the possibility that Judge Alley will be unable to give these words their full and required legal meaning.

End of FN.

FN12. It should be clear that the "personal bias or prejudice" necessary under s 144 need not rise to the level of an evil intent or animus on Judge Alley's part. "Bias or prejudice" need not have the character of an "urge for revenge," as Judge Alley suggests. (Exh. A, Order, at 9.) Rather, as the Supreme Court put it in Liteky, "bias and prejudice"

connote a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess (for example, a criminal juror who has been biased or prejudiced by receipt of inadmissible evidence concerning the defendant's prior criminal activities), or because it is excessive in degree (for example, a criminal juror who is so inflamed by properly admitted evidence of a defendant's prior criminal activities that he will vote guilty regardless of the facts)." 114 S.Ct. at 1155.

The sense in which Judge Alley's attitude is "wrongful or inappropriate" is thus the same sense in which a juror who is incapable of serving has an attitude which is "wrongful or inappropriate:" he is incapable of "hold [ing] the balance nice, clear, and true between the state and the accused," In re Murchison, 349 U.S. at 136 (cite omitted). This, it should be clear, is not a moral judgment; indeed, where one who has been victimized by a crime is asked to preside as judge over its trial, it would defy human moral capacities to "hold the balance nice, clear, and true."

End of FN.

*12 Finally, Judge Alley states that "[d]efendant cites no statements or actions by means from which any finding of bias or prejudice can be made," and expresses doubt that "recusal for actual bias [could be] required when the judge made no statements or rulings or other demonstrations that admitted or implied bias and prejudice." (Exh. A, Order, at 9, 10-11.) While showings of prejudice or bias under ss 144 and 455(b)(1) usually involve citations of extrajudicial statements, see e.g., Berger, supra (extrajudicial comments about Germans), nothing in the statute requires such a showing. Indeed, requiring such a showing in a case involving a judge-victim makes little sense; otherwise a defendant charged with committing a crime against the judge to whom her case was assigned could not move for recusal under ss 144 or 455(b)(1) until (and unless) the judge made some overt expression of wrongful or inappropriate attitude.

Rather than reach this counter-intuitive conclusion, it makes more sense to say that the fact that the judge was victimized by the defendant is alone sufficient to "give fair support" to the claim of actual bias or prejudice, as we suggest above. Alternatively, the situation can be deemed to be one of those rare circumstances in which actual bias is implied by law. This is not unprecedented; indeed, bias is implied by law in closely analogous situations where a juror's partiality is challenged. [FN13] See Smith v. Phillips, 455 U.S. 209, 222 n. * & 223 (1982) (O'Connor, concurring) (noting that the use of a "conclusive presumption of [juror] bias" is not foreclosed in "extreme" or "extraordinary" cases); Hunley v. Godinez, 975 F.2d 316 (7th Cir.1992) (explaining and applying the doctrine of "implied bias").

FN13. Defendants have a right to an impartial jury under the sixth amendment that is similar in scope and import to their right to an impartial judge under the Due Process Clause. Indeed, leading cases construing the sixth amendment "impartial jury" right cite and quote extensively the leading "impartial adjudicator" cases for support. See e.g. Irvin v. Dowd, 366 U.S. 717, 722 (1961) ( citing and quoting In re Oliver, 333 U.S. 257 (1948); Tumey v. Ohio, 273 U.S. 510 (1927); In re Murchison, 349 U.S. 133, 136 (1955)).

End of FN.

In particular, the one extraordinary situation in which courts have been willing to impute bias as a matter of law to a juror whose answers on volt dire would otherwise make her immune from "for cause" dismissal occurs when the juror has been the victim of a crime that is very similar to the crime on trial. In these circumstances, the court is required to dismiss the juror for cause on the theory that, no matter how good faith her statements of impartiality may be, the risk of bias is too great. See Hunley, 975 F.2d at 318-19 (discussing doctrine and collecting cases). Hunley, for example, concerned the trial of a defendant for burglary and murder. The Seventh Circuit ruled that the defendant was denied a trial by an impartial jury after several jurors' rooms were burglarized during the course of deliberations. Although all jurors disclaimed any effect of the incident on their decision to return a guilty verdict, the Seventh Circuit ruled that "[t]he burglary [of the jurors' hotel] placed the jurors in the shoes of the victim just before she was murdered," and that a mistrial should have been declared. 975 F.2d at 319.

*13 This Court has applied the "implied bias" doctrine in a complementary situation, in which the defendant, who was on trial for murder, raised the battered woman syndrome defense. Burton v. Johnson, 948 F.2d 1150 (10th Cir.1991), cert. denied, 113 S.Ct. 1879 (1993). The juror in question had suffered abuse very similar to the defendant's, but failed to disclose it during voir dire. The Court concluded that the "similarities of experience" between the defendant and juror required the Court to imply bias as a matter of law and ruled that the juror should have been excluded for cause. [FN14] 948 F.2d at 1159.

FN14. The Court also ruled that the juror's failure to disclose her abuse on voir dire was a distinct ground for reversal, but specifically stated that "[a]ssuming that the juror had answered the voir dire question honestly, the record still would not have fairly supported the presumption of correctness of the trial court's finding of juror impartiality." 975 F.2d at 1158.

End of FN.

The Supreme Court has recently made it clear that the terms "bias and prejudice" in the judicial recusal statutes are to be understood by analogy to "biased" or "prejudiced" jurors.

The words ["bias or prejudice"] connote a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess (for example, a criminal juror who has been biased or prejudiced by receipt of inadmissible evidence concerning the defendant's prior criminal activities), or because it is excessive in degree (for example, a criminal juror who is so inflamed by properly admitted evidence of a defendant's prior criminal activities that he will vote guilty regardless of the facts)." Liteky, 114 S.Ct. at 1155.

Here Judge Alley is not only "similarly situated" to the Murrah Building bombing victims, he himself has been victimized by the same crime.

Accordingly, given the close connection between judicial "bias and prejudice" and jurorial "bias and prejudice" drawn by Liteky, Burton, Hunley and the other "implied bias" cases stand for the proposition that, at least in the unique circumstance where the judge has himself been victimized by the crime on trial before him, judicial bias should be implied under ss 144 and 455(b)(1).

B. Judge Alley and the other judges should be disqualified pursuant to 28 U.S.C. s 455(b)(1) due to "personal knowledge of disputed evidentiary facts concerning the proceeding"

Under 28 U.S.C. s 455(b)(1), a judge must disqualify herself if she has personal knowledge of evidentiary facts that will be disputed at trial. Our motion for recusal, the Affidavit of Terry Lynn Nichols, and the exhibits accompanying both our motion and that of Mr. McVeigh show that the district judge must recuse himself under section 455(b)(1). [FN15] (Exhs. C and D.)

FN15. Mr. Nichols does not now and did not below, as the judge evidently believed, take the position that information submitted in the s 144 affidavit can "bootstrap" itself into the status of "disputed facts." See Exh. A, Order, at 13.

End of FN.

*14 Judge Alley's ruling does not contest his knowledge of facts related to the bombing, but insists that nothing he knows can be deemed "disputed" within the meaning of the statute. He also argues that "the Court's role in this matter will be confined to issues of law." (Exh. A, Order, at 12, 13.)

Judge Alley takes too narrow a view of the impact of his prior (and continuing) knowledge and experience of the facts of this tragedy, and of the trial rights protected by s 455(b)(1). Apart from his own knowledge, he is in daily contact with countless people who have direct, personal knowledge of the bombing and its effects. They do and will continue to share his workplace. The bombing, its effects, and what should happen to the defendants are matters of constant discussion in the Courthouse. His relationships with the other Courthouse personnel thus closely parallel the relationship found disqualifying under s 455(b)(1) in In re Faulkner, 856 F.2d 716 (5th Cir.1988) (holding that judge "has, at least through his personal conversations with [a witness with whom he had relationship], 'personal knowledge of disputed evidentiary facts concerning the proceeding' sufficient to disqualify him, under section 455(b)(1), from presiding further over this case").

Moreover, should Judge Alley continue on this case he will inevitably be called upon to make rulings about how much and what type of evidence can be presented consistent with Rule 403 of the Federal Rules of Evidence, as well as possibly having to rule on the admissibility of evidence at a death penalty hearing. Without conceding the admissibility of any evidence under 18 U.S.C. s 3592(c) or on any other basis, it is clear that the injury suffered by a member of Judge Alley's staff and the physical damage to Judge Alley's courtroom and chambers constitute relevant evidence that could be introduced by the government against Mr. Nichols in a noncapital sentencing proceeding, or-- possibly--as an aggravating factor in a capital sentencing proceeding, should either occur. Moreover, even if the basic facts of the staff member's injury and the damage to Judge Alley's chambers and courtroom were undisputed at sentencing, their significance will be contested. Any competent defense counsel would challenge the extent of damage and the weight it should be given in a Guidelines calculation by the district judge. If a capital sentencing proceeding were to occur, defense counsel would be duty-bound to argue the significance and weight of this evidence as it relates to the jury's weighing of aggravating and mitigating factors in deciding whether to impose a sentence of death. The presiding judge will be called on continually to make rulings on the permissible scope of cross-examination, lines of questioning, and other routine (but critical) evidentiary decisions in which prior knowledge and direct experience of the impact of the bombing could unconsciously enter into the calculation.

*15 Thus, a district judge who has himself been victimized by the bombing and who has daily contact with others affected even more severely cannot be considered an impartial decision-maker of legal and evidentiary issues that will surely arise, particularly if this case proceeds to a sentencing phase, whether it is capital or non-capital.

C. Judge Alley and the other judges should be disqualified pursuant to 28 U.S.C. s 455(a) because their "impartiality might reasonably be questioned"

The broadest in scope of the recusal statutes, 28 U.S.C. s 455(a) requires a federal judge to "disqualify himself in any proceeding in which his impartiality might reasonably be questioned." See generally Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988). Unlike ss 144 and 455(b)(1), the test is "purely objective," looking not to "actual bias" but to " 'whether a reasonable person, knowing all the relevant facts, would harbor doubts about the judge's impartiality.' " United States v. Cooley, 1 F.3d 985, 993 (10th Cir.1993) (quoting United States v. Burger, 964 F.2d 1065, 1070 (10th Cir.1992)). Moreover, "when a judge harbors any doubts concerning whether his disqualification is required he should resolve the doubt in favor of disqualification." Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir.1988), cert. denied, 490 U.S. 1066 (1989). These doubts must be evaluated from a lay rather than judicial perspective, moreover, keeping in mind the Supreme Court's admonition that "people who have not served on the bench are often all too willing to indulge suspicions and doubts concerning the integrity of judges." Liljeberg, 486 U.S. at 864-5.

There is no question that a reasonable person supplied with all the facts of this case would harbor doubts about Judge Alley's and the other Western District judges' partiality.

First, as we argued above, Judge Alley and the other judges possess "personal bias or prejudice" against Mr. Nichols by virtue of the fact that they have been victimized by the very crime that he is accused of committing, a circumstance that is paradigmatic of "facts that give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment." Nevertheless, even if this Court declines to find "personal bias or prejudice" as a matter of law here, there remains the question of whether a reasonable person apprised of the facts that Judge Alley's chambers and courtroom were decimated, that a member of his staff was injured, and that he is exposed on a daily basis to reminders of the tragedy that took place on April 19 would harbor doubts about Judge Alley's ability to remain impartial. A reasonable person need not speculate about willful partiality or evil intent to doubt whether a person whose place of work has been devastated and co-workers and staff members injured would be able to maintain the impartial attitude required of a judge.

*16 Two cases recently decided by this Court under s 455(a) strongly support disqualification here. In United States v. Greenspan, 26 F.3d 1001 (10th Cir.1994), the Court held that Judge Conway should have disqualified himself from further proceedings in the case after he was informed by the FBI that the defendant was under investigation for participation in a conspiracy to murder the judge and his family, stating that "[e]ven if this judge were one of those remarkable individuals who could ignore the personal implications of such a threat, the public reasonably could doubt his ability to do so." Id. at 1007.

Greenspan is instructive in a number of respects. First, as here, the concern requiring recusal was Judge Conway's knowledge that he might become a crime victim of the defendant before him. It is true that Judge Conway was allegedly the intended target of the crime--the murder conspiracy--while Judge Alley and the other Western District judges were victimized by crimes that, on their face, have no specific intent mens rea component with regard to human life. See 18 U.S.C. ss 2332a and 844(f). This distinction is superficial, however, and will disappear entirely when it comes time for the government to prove its case. In Count 3 of the indictment, brought under 18 U.S.C. s 844(f), Mr. Nichols is charged with inflicting personal injury and property damage. Counts 1, 2 and 3 charge responsibility for resulting deaths. An attempt to cause such a death--with respect to those who did not perish--is a lesser included offense. Fed. R. Crim. P. 31(c). At trial, in either the guilt or penalty phase or both, the government will have to prove some mens rea with respect to the resulting deaths, at a minimum (to the extent that the government decides to seek the death penalty) that the defendant acted with depraved indifference to the lives of those in the Murrah Building and adjacent structures. See Tison v. Arizona, 481 U.S. 137 (1987). Thus, the defendants' intent towards the judges themselves will, in effect if not in name, be placed in issue by the government.

Apart from the intent issue, moreover, this case presents a far more compelling case for reasonably doubting the Western District judges' ability to remain impartial. Judge Alley was victimized by a completed crime that caused devastating harm to his place of work, while Judge Conway was the target of an inchoate crime that never came to fruition. Furthermore, viewed from the objective perspective of a reasonable person, the connection tending to link Mr. Nichols personally to responsibility for the Courthouse destruction in the mind of Judge Alley is much stronger than the linkage of Mr. Greenspan to the alleged murder plot in the mind of Judge Conway in Greenspan. The tip regarding the murder plot in Greenspan was just that--an investigative tip-- while, as we noted above, here there have been several findings of probable cause against Mr. Nichols to date. [FN16]

FN16. Greenspan illustrates the error in Judge Alley's persistent statements that no connection can be made between any bias or prejudice (or "reasonable doubt" about his partiality) created by the damage to the Courthouse and his feelings (or reasonable appearance of feelings) about Mr. Nichols or co-defendant McVeigh in particular. See e.g. Exh. A, Order, at 9 ("missing link" between "sorrow in the workplace" and "judicial bent to retaliate against these two defendants"), 16 ("I find that a reasonable citizen would not question impartiality as to these defendants on the basis of my daily contact" with his injured staff member; emphasis in original). The connection between the event triggering recusal in Greenspan (the alleged murder plot) and the defendant there was supported by a far more slender thread than the connection between the event triggering recusal here (the Courthouse damage and injuries) and Mr. Nichols, since the murder conspiracy allegation in Greenspan had not been formally charged or tested by judicial proceedings. Yet this Court had no trouble in discerning the potential for the appearance of partiality against the defendant in Greenspan.

End of FN.

*17 If an investigative lead indicating that a judge is the target of an inchoate crime that never comes to fruition is sufficient to mandate recusal under s 455(a), then it would appear to follow as a matter of course that a judge who has reason to believe--based on multiple findings of probable cause-- that he was victimized in fact by a defendant should also require recusal. See also United States v. Nobel, 696 F.2d 231, 235-36 (3d Cir.), cert. denied, 462 U.S. 1118 (1983) (holding that "a judge who owns a substantial interest in the victim of a crime must disqualify himself or herself in the subsequent criminal proceeding" under s 455(a)).

United States v. Cooley, 1 F.3d 985 (10th Cir.1993), is also instructive. In Cooley this Court held that Chief Judge Kelly of the District of Kansas had to be disqualified under s 455(a) and convictions reversed because he had made an appearance on Nightline to state his views about anti-abortion protests then taking place in Wichita. These protests were in direct violation of his orders, and he stated on the television show that it was his purpose to see that " 'these people whose purpose it is to close these clinics by illegal means ... understood fairly so, firmly so, that this order [the court's injunction prohibiting obstruction of access to the clinics] would be honored.' " 1 F.3d at 995. The Court found that Judge Kelly's appearance

unmistakenly conveyed an uncommon interest and degree of personal involvement in the subject matter.... [I]t unavoidably created the appearance that the judge had become an active participant in bringing law and order to bear on the protesters, rather than remaining as a detached adjudicator. Id. (footnote omitted).

Although the factual setting is very different in this case, the underlying concerns expressed in Cooley are present here as well. It would be eminently reasonable for a member of the public to suspect that Judge Alley and the other Western District judges must have "an uncommon interest and degree of personal involvement in the subject matter" of this case, since the subject matter concerns an event that directly and adversely affected their lives. For similar reasons, the fact that Judge Alley was directly affected cannot help but call into question his ability to remain a "detached adjudicator."

Consistent with his approach to the other recusal statutes, Judge Alley's discussion of s 455(a) glosses over the devastating effect of the bombing on his chambers and the Courthouse. While conceding that his courtroom suffered significant damage, he otherwise attempts to minimize the effect of the bombing. (Exh. A, Order, at 15-16, 18.) Nevertheless, although Judge Alley's statement that he has "experienced greater loss of courtroom time because of water leaks and utility failures," id., may reflect his personal feelings about the devastation wrought by the bombing, his subjective view is not the test. A reasonable person who reviewed the videotape, photographs and documentary record submitted with the recusal motions could reasonably reach other conclusions, sufficient to raise a doubt about the ability of anyone who worked in the Courthouse to maintain impartiality in this case.

*18 Despite his claims to the contrary, a reasonable person could also conclude that Judge Alley's daily contact with the staff member who was injured in the bombing raises doubts about his impartiality. While not every relationship with a victim or defendant automatically requires recusal, see e.g. United States v. Lovaglia, 954 F.2d 811, 817 (2d Cir.1992), a number of courts have recognized that a judge's relationship with his clerk staff is a particularly sensitive one. Hall v. Small Business Administration, 695 F.2d 175, 179 (5th Cir.1983) ("Clerks are privy to the judge's thoughts in a way that neither parties to the lawsuit nor his most intimate family members may be"); Parker, 855 F.2d at 1525 ("We recognize the importance that some law clerks play in the decisional process and it is for this reason that a clerk is forbidden to do all that is prohibited to the Judge.) (cites, internal quotes omitted). Daily contact with a person who was injured by a violent criminal act, even if the injures are minor, would necessarily and reasonably raise doubts about the judge's ability to maintain his judicial detachment in a trial of that very crime.

Judge Alley, on the other hand, relies heavily on United States v. Harrelson, 754 F.2d 1153 (5th Cir.), cert. denied, 474 U.S. 908 (1985), as he does throughout his opinion, for the proposition that a judge can preside at the trial of a fellow judge's murder even after attending his funeral and eulogizing him. (Exh. A, Order, at 1, 16.) Harrelson, however, will not bear the weight that Judge Alley places on it. Apart from the fact that it does not address the more fundamental basis for recusal here--i.e., that Judge Alley was himself victimized by the bombing--the Harrelson holding is based on a restrictive interpretation of s 455(a) which has not survived Liljeberg and which is in any event flatly inconsistent with this Circuit's understanding of s 455(a). Compare Harrelson, 754 F.2d at 1165 ("recusal is not warranted absent specific instances of conduct indicating prejudice against a defendant") with Cooley, 1 F.3d at 995-6 (disqualifying Judge Kelly under s 455(a) despite the fact that "the record below, including the sentences imposed, discloses no bias"). Indeed, although never expressly overruled, Harrelson appears to be generally inconsistent with subsequent Fifth Circuit "relationship" cases. See Jordan, supra (judge's friendship with attorney who had had criminal charges brought against him by defendant sufficient to require recusal); In re Faulkner, 856 F.2d 716 (5th Cir.1988). In any event, the Harrelson court described the relationship between Judge Sessions and Judge Wood as "collegial" and noted that there was "no evidence of any special relationship between the two judges." 754 F.2d at 1164. The daily contact and dependence that a judge maintains with her staff is more analogous to the friendship that precipitated the recusal in Jordan than the collegial relationship between the two judges in Harrelson.

*19 Finally, Judge Alley notes that "[d]efendants point to no rulings by the Court on other pretrial matters that indicate a bias against defendants or in favor of the government." (Exh. A, Order, at 17.) Since the recusal motions were filed only 13 days after Judge Alley was assigned, there were not many pretrial rulings to complain about. More fundamentally, reliance on judicial rulings is generally (although not absolutely) precluded by the "extrajudicial source" doctrine. Liteky, 114 S. Ct. at 1154-5. Nevertheless, since this Court has occasionally adverted to in-court rulings to buttress its conclusions regarding the appearance of partiality under s 455(a), see e.g. Greenspan, 26 F.3d at 1005-6 (referring to judge's expedition of the defendant's sentencing hearing and failure to continue hearing despite appointment of new counsel), we note two rulings suggesting a tendency to prejudgment that is at odds with the appearance of judicial detachment required by s 455(a).

First, Judge Alley did not wait for counsel to move his recusal; he simply announced at the very first meeting that he knew of "no reason whatsoever that would be a basis for self-recusal pursuant to 28 U.S.C. s 455." (Exh. B, Notice to Counsel, at 3.) Although he was careful to add that "this notice is not intended to foreclose submission of a motion for recusal supported by Affidavit and Certificate of Good Faith pursuant to s 144," id., the effect of this unexpected announcement was to suggest that motions for recusal were likely to be futile. The Ninth Circuit has found the precipitous decision of a s 455 motion to be a factor favoring reassignment of a case on remand to a new judge, United States v. Ryan, 455 F.2d 728, 735 & n. * (9th Cir.1971) (fact that district judge "[a]cted upon a 28 U.S.C. s 455 motion on the day it was filed and prior to the time it was formally set for hearing, even though counsel stated, 'I am not arguing this motion to you at this time' " a factor motivating appeals court to request reassignment under old s 455 for sake of "appearances").

Second, and more significantly, in the same Order denying defendants' motions for recusal Judge Alley ordered this matter set for trial in Lawton, Oklahoma, pursuant to 28 U.S.C. s 116(c) and Local Rule of Court 3(D). The reasons given for this decision were convenience of the "local witnesses" and "affected persons who want to be spectators," and because the judge had decided that "[j]ury selection from a pool in the Oklahoma City area would be chancy." Judge Alley also indicated that at least part of the basis for his selection of Lawton was ex parte consultation with the United States Marshals Service, which has evidently been surveying potential trial sites without the knowledge of (and certainly without consulting) the defense. (Exh. A, Order, at 20.)

*20 Judge Alley's transfer order is disturbing for a number of reasons, all of which bespeak the same tendency to decide issues improperly and adversely to the defense before they are even raised by a party, and without any opportunity for briefing and hearing. Rule 18, Fed. R. Crim. P., provides that "[t]he court shall fix the place of trial within the district with due regard to the convenience of the defendant and the witnesses and the prompt administration of justice." The district court's opinion makes no mention of the "convenience of the defendant," nor could it, since Lawton is tremendously inconvenient for many reasons: few if any of Mr. Nichols' witnesses can be characterized as "local" as they are almost all from Kansas and Michigan; Lawton is far from the nearest major airport and is otherwise an unsuitable venue for a major trial involving hundreds of witnesses and countless physical exhibits; the forensic evidence is being evaluated in many places including the District of Columbia; and even the government's main announced trial witnesses are from Arizona. See United States v. Fernandez, 480 F.2d 726 (2d Cir.1973) (Friendly, J.) (intradivisional transfer intended for convenience of defendant and witnesses, not judge). The reference to jury pools is also ominous in so far as it suggests (as did the sua sponte decision of the s 455 motions that had not been filed yet) that Judge Alley may be prejudging a critical issue for the defendants--venue--before having the benefit of the defendants' evidence and argument.

We do not ask the Court to determine the propriety of these decisions by the district court, but mention them only because they contribute to the "totality of the circumstances," Greenspan, 26 F.3d at 1006, suggesting the basis for disqualification. Cf. Haines v. Liggett Group Inc., 975 F.2d 81, 97-98 (3d Cir.1992) (prejudgment of issues may create "appearance of bias" sufficiently extreme to warrant reassignment of case to another judge). Should the Court grant this petition and disqualify Judge Alley, the proper course is not to address the Lawton transfer on the merits but to direct that the new judge examine de novo any challenged rulings by Judge Alley. See Harris v. Champion, 15 F.3d 1538, 1571-1572 (10th Cir.1994) (discussing vacatur remedy following disqualification); In re School Asbestos Litigation, 977 F.2d 764, 784-788 (3d Cir.1992) (same).

D. Judge Alley and the other judges may not preside over this case consistent with the Due Process Clause of the fifth amendment to the Constitution

Finally, continued participation by Judge Alley or other Western District judges in this case will violate the Due Process Clause as well as the recusal statutes. The precise relationship between the Due Process Clause and the federal recusal statutes is unsettled, [FN17] and as a general matter a court should decide cases under the recusal statutes where they apply before reaching the constitutional issue. See e.g. United States v. Alabama, 828 F.2d 1532, 1540 n. 22 (11th Cir.1987), cert. denied, 487 U.S. 1210 (1988). Nevertheless, because it is clear that the Due Process Clause proscribes a judge from sitting in the present circumstances--in which the judge has been directly and adversely affected by the crime of violence on trial--we briefly delineate the applicability of the Supreme Court's Due Process jurisprudence to the instant case.

FN17. See Note, "The Illegitimacy of the Extrajudicial Source Requirement for Judicial Disqualification Under 28 U.S.C. s 455(a)," 15 Cardozo L. Rev. 787, 792 n. 33 (1993).

End of FN.

*21 Like the recusal statutes, the Due Process Clause forbids both partiality in fact and the appearance of partiality by a judge:

A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness.... This Court has said, however, that 'Every procedure which would offer a possible temptation to the average man as a judge ... not to hold the balance nice, clear, and true between the State and the accused denies the latter due process of law.' ... Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way 'justice must satisfy the appearance of justice.' In re Murchison, 349 U.S. 133, 136 (1955) (quoting Tumey v. State of Ohio, 273 U.S. 510, 532 (1927) and Offutt v. United States, 348 U.S. 11, 14 (1954)).

See also Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825 (1986) (appearance of partiality sufficient to trigger due process clause); Taylor v. Hayes, 418 U.S. 488, 501 (1974) (same).

The Supreme Court has suggested in dicta that only in "the most extreme of cases would disqualification [for the appearance of bias] be constitutionally required" by the Due Process Clause. Lavoie, 475 U.S. at 821. There is one "extreme case," however, in which the Court has consistently held that the appearance of bias is sufficient to require disqualification. This exceptional circumstance, as here, involves a situation in which the judge has allegedly been victimized by the same defendant over whose case she is presiding: cases of criminal contempt in which the contempt citation is based on personal attacks on the judge. As one commentator explains, in such cases "the roles of victim, prosecutor, and judge are dangerously commingled." Dudley, "Getting Beyond the Civil/Criminal Distinction: A New Approach to the Regulation of Indirect Contempts," 79 Va. L. Rev. 1025, 1028 (1993) (note omitted). See also In re Murchison, supra (judge in criminal contempt proceeding improperly assumed role of victim, prosecutor and judge).

In particular, the Supreme Court has held that in cases where a trial judge has been "reviled by the contemnor" with "insults ... apt to strike 'at the most vulnerable and human qualities of a judge's temperament,' " the Due Process Clause forbids the judge to preside at the contempt hearing based on those insults. Mayberry v. Pennsylvania, 400 U.S. 455, 466 (1971) (quoting Bloom v. Illinois, 391 U.S.194, 202 (1968)). [FN18]

FN18. The other due process exception to the general rule permitting judges to preside at contempt proceedings they have initiated occurs where the judge has become "embroiled in a running controversy" with the contemnor. Taylor, 418 U.S. at 501. That exception does not apply here.

End of FN.

*22 There are, of course, distinctions to be made between the typical "personal attack" contempt hearing and the case presented here (e.g., that the judge is the unique intended target of the "personal attacks" while here there were many victims; that in typical contempt situations the judge will have personally witnessed the defendant commit the attack whereas in this case the judges did not, etc.). These distinctions are unimportant, however, in light of the fundamental principle represented by Mayberry--that a judge may not, consistent with the Due Process Clause, sit in judgment over a defendant charged with a crime that caused the judge herself direct injury. [FN19] Nor can this principle be confined to the contempt situation--indeed, if anything, the principle has more force outside the contempt context since due process protections are traditionally relaxed in that context. Dudley, supra, 79 Va. L. Rev. at 1068-9.

FN19. Of course, a defendant cannot deliberately attack a judge in the expectation that this will result in recusal. Mayberry, 400 U.S. at 463 ("A judge cannot be driven out of a case"); see also Greenspan, 26 F.3d at 1006-7 (discussing same principle under recusal statutes); see e.g. Wilks v. Israel, 627 F.2d 32, 37 (7th Cir.1980), cert. denied, 449 U.S. 1086 (1981) (assault on judge following multiple attempts to have judge recused; "petitioner's deliberate attack on the trial judge calculated to disrupt the proceedings will not force a judge out of a case"). This doctrine has no applicability to the instant case, where the "attack" on the judge occurred prior to any judicial proceedings and is not intended to achieve recusal.

End of FN.

If verbal attacks on a judge by a defendant may rise to a level that reasonably calls her impartiality into question for purposes of the Due Process Clause, then physical violence, arson and destruction wrought on a judge's chambers, courtroom and staff must raise the same constitutional doubts. Far more than verbal insults, physical destruction and injury to a judge's personal staff "strike 'at the most vulnerable and human qualities of a judge's temperament.' " Mayberry, 400 U.S. at 466. Accordingly, since Mr. Nichols is charged with causing just such physical destruction and injury to the Federal Courthouse, it would violate the Due Process Clause for Judge Alley or any other judge of the Western District to preside over his criminal case.

CONCLUSION

For the foregoing reasons, petitioner-defendant Terry Lynn Nichols requests that this Court issue a writ of mandamus disqualifying all judges of the Western District of Oklahoma from further participation in these proceedings and ordering reassignment of this case to another judge. In the alternative, petitioner-defendant requests the issuance of a writ of mandamus ordering Judge Alley to permit discovery and hold an evidentiary hearing regarding the factual bases for disqualification issues raised in petitioner-defendant's motion for recusal.

Respectfully submitted,

*23 /s/

Michael E. Tigar

Ronald G. Woods

D. Kate Rubin

Of counsel: Adam Thurschwell

Counsel for Petitioner-Defendant

Terry Lynn Nichols

(Appointed by the Court)

Nichols v. Alley

C.A.10.Colo.Doc., 1995.