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Death Penalty Challenge Overruled

By Lois Romano
Washington Post Staff Writer
Thursday, September 26, 1996; Page A04

The judge in the Oklahoma City bombing case yesterday rejected broad defense challenges to the federal death penalty statute, clearing the way for the government to seek to execute the two accused bombers if they are found guilty.

U.S. District Judge Richard P. Matsch in Denver ruled that the 1994 federal death penalty law was constitutional and that the procedures followed by the Justice Department in deciding to seek the death penalty did not violate the rights of defendants Timothy James McVeigh and Terry Lynn Nichols.

McVeigh, 28, and Nichols, 41, have been charged with 11 counts of conspiracy and murder in the April 19, 1995, bombing of the Alfred P. Murrah building, which killed 168 people, including eight federal law enforcement officers. A trial date has not been set in the case, but it is unlikely to begin until early 1997.

Justice Department spokeswoman Leesa Brown said yesterday that the ruling "affirms that the government acted properly in seeking the death penalty."

Several months before the bombing, Attorney General Janet Reno issued guidelines for seeking the death penalty that allow defense counsel to present any mitigating factors to the Justice Department.

Defense attorneys had argued that Reno violated those internal procedures last year when she publicly called for the death penalty before anyone had been charged in the bombing. Matsch, however, concluded that the "protocol did not create any individual right or entitlement subject to due process protections."

The judge also turned back various claims from defense attorneys that the statute is unconstitutional, including the claim that execution is cruel and unusual punishment prohibited by the Eighth Amendment.

Rob Nigh, a lawyer for McVeigh, said there were no plans to appeal the ruling at this time. "It is another example of a ruling by Judge Matsch, meticulously researched and clearly stated and it is difficult to criticize an order like that," he said. "Obviously we had asked for different legal conclusions."

Next week, Matsch may hear defense arguments on motions that the two defendants be tried separately.

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