Eric Rudolph

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A federal judge in Birmingham, Alabama, has refused to throw out the death penalty case against Eric Rudolph, rejecting defense claims that the serial bombing suspect should be tried under a law that does not allow capital punishment.

U-S District Judge Lynwood Smith issued a brief order yesterday. Smith accepted the recommendation of a magistrate judge who ruled Rudolph could face death if convicted in the deadly bombing of a Birmingham abortion clinic in 1998.

The defense claimed Rudolph should be tried under the 1994 Freedom of Access to Clinic Entrances Act -- which carries a maximum penalty of life imprisonment for abortion clinic attacks resulting in death.

But Smith's ruling means Rudolph can be tried under a federal arson law that allows capital punishment for attacks involving explosives.

Rudolph's lawyers did not immediately respond to a message seeking comment.

In a separate order, the judge delayed preliminary jury selection in Rudolph's trial from March 23 until April 6. Opening arguments had been set for late May, but the delay could result in the start of Rudolph's trial being pushed back until June.