Denver Bar Association
June 2012
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Trial Diaries | Part Two of a Two-Part Story: Representing Terry Nichols: The Story of One Lawyer’s First Jury Trial

by N. Reid Neureiter

T



he Oklahoma City bombing trial of Terry Nichols had every legal issue that one would ever see in a federal criminal case. From the admissibility of co-conspirator statements, to the scope of allowable voir dire in a death penalty case (more than a full month of individualized voir dire, with each of the 160-plus prospective jurors individually questioned by counsel for each side); from intricate questions about the admissibility of expert testimony, to whether it is constitutionally permissible to try two defendants in a death penalty case before the same jury—we addressed issue after issue. The briefing on the change of venue, which pre-dated my participation, was extensive and set the standard for the kind of presentation needed to obtain a venue change in a widely publicized case.

Jeffrey Skilling of Enron fame, a subsequent client of Ron Woods (one half of the "Tigar/Woods" team for Nichols with Michael Tigar), later lost a similar change of venue argument in Houston federal court despite significant adverse pretrial publicity. The saga of Skilling’s change of venue request ended in the U.S. Supreme Court (see Skilling v. United States, 130 S.Ct. 2896 (2010)). One difference between the Oklahoma City bombing and Enron change of venue outcomes may have been that the federal courthouse in Houston had not been damaged by Enron’s conduct. The federal courthouse in Oklahoma was across the street from the Murrah Building. Many courthouse employees knew those who were killed or injured by the bomb, and wooden doors in the courthouse still bear marks from the blast.

A few legal issues among the dozens briefed and argued stand out. When Terry Nichols learned he was being sought in connection with the bombing, he turned himself in to authorities in Herington, Kansas. He then was interviewed for hours by FBI agents. No recording, tape, or video was made of the interview, but the prosecutors sought to introduce the substance of Nichols’ statements to the FBI agents via the agents’ hand-written notes.

The FBI released a sketch of two suspects shortly after the Oklahoma City Bombing.
The FBI released a sketch of two suspects shortly after the Oklahoma City Bombing.

Preparing for Publicity

The defense moved via partially sealed pleadings to suppress this evidence. The news media, for their part, wanted to know what had been said in the interview, disclosure of which would have guaranteed wide publicity before any jury was ever selected. Judge Richard Matsch declined to order public release of the unredacted motion to suppress or of the FBI agents’ interview reports. The media, represented in part by Denver media law experts Tom Kelley and Steve Zansberg, petitioned for writ of mandamus to the 10th Circuit, asking that Judge Matsch release the sealed material on First Amendment and common law right of access grounds.

Imagine trying to prepare the defense for a death penalty case and being distracted by an expedited appellate briefing on a somewhat tangential issue. Ultimately, after a full argument and in camera review of the sealed materials, the 10th Circuit affirmed Judge Matsch’s order protecting the defendant’s right to a fair trial by denying public access to the materials in advance of jury selection (see United States v. McVeigh, 119 F.3d 806 (10th Cir. 1997)).

One Trial or Two?

The government’s desire to try McVeigh and Nichols together in a single trial presented additional challenges. In a conspiracy case, it is always an advantage to the prosecution to point to two defendants, sitting together in the dock. Each defendant’s lawyer will seek to deflect blame from one defendant to the other, reinforcing the prosecution’s argument that both are guilty.

Where one defendant has made incriminating admissions, such statements pose significant confrontation problems. Counsel for one defendant cannot cross-examine the non-testifying co-defendant. Statements might be admissible against one defendant that would not be admissible against the other, requiring either redaction, mind-twisting limiting instructions from the court, or separate trials altogether (see Bruton v. United States, 391 U.S. 123 (1968)).

Both McVeigh and Nichols moved for severance of the trials. During the hearing on the motions, Judge Matsch allowed us to present expert testimony on the difficulty of trying two death penalty defendants together. In law school, I had clerked for a judge on the Texas Court of Criminal Appeals—Texas’ highest criminal court and the American court that has affirmed more death penalty cases than any other in the modern era. (Texas may be down on its luck in college football, but as far as executions go, Texas is "still Number One!") As a prosecutor, retired Judge Charles Campbell had obtained death verdicts; as a trial judge he had imposed death sentences; and as an appellate judge, he had affirmed dozens of death verdicts. At my request, he came to Colorado to give his expert opinion, telling the court it would be unconstitutional to try two death penalty defendants before the same jury. The jury would necessarily be weighing the mitigating and aggravating circumstances of one defendant’s life against those of his co-defendant, denying each the individualized assessment the law requires (see Penry v. Lynaugh, 492 U.S. 302 (1989)).

Judge Matsch granted the severance; there would be two trials.

McVeigh was to be tried first. One of my jobs was to sit through McVeigh’s trial, evaluate witnesses and evidence, and identify information that might prove useful to Nichols’ defense. We would see many of the witnesses again in our trial, and any change in testimony would be fodder for cross-examination. More important, our defense strategy for Nichols was to highlight the contrast between our client and McVeigh.

In the Courtroom:
Strategy and Jury Selection

To a great extent, our case would be a re-prosecution of McVeigh. It was McVeigh, not Nichols, who had gone from friend to friend, proselytizing from the hate-filled book "The Turner Diaries," which included a passage about driving a bomb-filled truck into the basement of a federal building. It was McVeigh, not Nichols, who had demonstrated, using soup cans on a friend’s kitchen floor, how to fashion a shaped explosive made of 55-gallon barrels. It was McVeigh, not Nichols, who was calling acquaintances asking where he could buy detonation cord and racing fuel, ingredients for a bomb. And, of course, by the time of Nichols’ trial, McVeigh was convicted and sentenced to death—a fact of which the Nichols jury would be aware.

Voir dire was fascinating. In a death penalty case, any juror who, as a matter of conscience, cannot impose the death penalty is disqualified from service. Similarly, a juror who professes an Old Testament, mandatory "eye-for-an-eye" approach to a homicide also would be stricken for cause. So voir dire saw the bizarre circumstance of defense lawyers trying to persuade a juror philosophically opposed to the death penalty that if so instructed by the judge she could at least consider death as a potential sentence. If such an anti-death penalty juror could answer "yes" to that question, then that juror could not be stricken for cause, perhaps forcing the prosecution to expend a preemptory challenge. Qualify enough such jurors and the prosecution has to use all its peremptory challenges, meaning an anti-death penalty juror might end up on the jury. Prosecutors played the opposite game—trying to keep pro-death jurors from being stricken for cause by getting them to say they would at least consider something other than a death sentence even in a case where many young children were killed.

Our strategy of keeping Nichols out of the limelight worked. Most jurors came to the trial without preconceived notions of Nichols or his reported participation. We ended up with a jury foreperson who worked as an OB-GYN nurse at Rose Medical Center. This would become significant during the penalty phase of the trial. Evidence showed Nichols had been a caring father and husband to his young second wife, Marife, particularly during her pregnancy. The midwife who had provided prenatal care to Marife was prepared to testify that she had never seen a prospective father from rural Michigan so concerned about proper prenatal nutrition and education. On a scale of one to 10, Nichols "was an 11" in terms of paternal involvement. If the prosecutors wanted to introduce evidence of supposedly anti-government publications retrieved from Nichols’ house, we could counter with his pamphlets from the La Leche League about the importance of breastfeeding a newborn. As trite as it may seem, we thought it unlikely that, in the event of a conviction, an obstetrical nurse would vote to execute a man who took childbirth classes so seriously.

Presenting the Case: Trial by Fire

The prosecution rested its guilt case against Nichols after 20 days, calling 98 witnesses. Our defense team presented 92 witnesses in eight days; it was an amazing feat. I got my promised witnesses—more than 25 of them. I had never presented a witness to a jury before, and it was something of trial by fire. I made my share of mistakes and violated some basic rules of courtroom procedure, appropriately incurring Judge Matsch’s wrath. But one learns quickly.

The prosecutors had an "open file" policy and we had been given access to more than 25,000 FBI witness interview memos. For every witness who claimed to have seen Terry Nichols’ blue pickup truck in an incriminating location, there was another witness, or three, who had not seen the truck, or had seen McVeigh in the company of someone else. Most frequent, it was the notorious John Doe Number 2, a dark-haired individual described to an FBI sketch artist by employees at the Ryder truck office as one of two men who had rented the bomb truck. John Doe Number One was a dead ringer for McVeigh. Number 2 was clearly not Nichols. Many of our witnesses were credible citizens (at least as credible as the government’s witnesses) who had seen someone, not Nichols, in the company of McVeigh in the days before the bombing.

It did not help the government’s case that after McVeigh and Nichols were arrested and the case against them prepared, FBI agents visited the witnesses who remembered seeing John Doe Number 2 with McVeigh to convince them that they were mistaken in their recollection, and they might suffer adverse consequences if they were to testify consistent with their previous statements. One woman was so upset by what she perceived as intimidating phone calls from a government agent that she put the phone on speaker for her family to hear.

Nichols had been charged with conspiracy to use a weapon of mass destruction, use of a weapon of mass destruction, and destruction by explosive, in addition to eight counts of first-degree murder for the eight federal law enforcement agents who died in the Murrah Building. He was acquitted of the eight murder charges, with the jury convicting instead on lesser included counts of involuntary manslaughter. He also was acquitted of use of the weapon of mass destruction and destruction by explosive, but he was convicted of conspiracy.

Apparently, the jury did not believe that Nichols was a primary actor in the bombing. Because deaths resulted from the conspiracy, conviction on that charge allowed the prosecution to seek a death sentence.

During the penalty phase, the jury heard testimony from dozens of victims of the bombing, including family members of the deceased and bombing survivors with horrible injuries. In mitigation, a handful of witnesses testified to Nichols’ lack of any prior criminal record and his history as a loving father and husband. The jury could not agree unanimously on a sentence and Judge Matsch declared a hung jury. Because only the jury can impose a death sentence, Judge Matsch sentenced Nichols to life in prison without the possibility of parole.

The author examines Sgt. James Sargent during the Nichols trial. Courtesy of the estate of Walt Stewart.
The author examines Sgt. James Sargent during the Nichols trial. Courtesy of the estate of Walt Stewart..

From Federal to State Court

I thought we had done a good job for our client, but what we did was surpassed by Nichols’ next set of lawyers in Oklahoma. After the federal life sentence was imposed, Nichols was moved to Oklahoma, where state prosecutors tried him on 161 state counts of first-degree murder. There was significant controversy surrounding the decision by Oklahoma to pursue the death penalty.

Although it was not technically a question of double jeopardy because of our system of dual state and federal government sovereignty, it was undisputed that Nichols would spend the rest of his life in federal prison. The only objective of the Oklahoma trial was to kill Nichols. Oklahoma would spend $5 million prosecuting him, and millions more providing a free defense.

To the great credit of the Oklahoma team who defended him, led by solo practitioner Brian Hermanson, the net outcome was the same as in Colorado. Despite returning 161 guilty verdicts on the state murder charges, the Oklahoma jury deadlocked at the penalty phase, declining to impose a death sentence. Given the result, CBS News legal commentator Andrew Cohen called Nichols’ second trial "a symbol of colossal waste and prosecutorial overreaching," as well as "a lesson in what can happen when the government prosecutes a case for all of the wrong reasons." Nichols was returned to Colorado, and today he is serving his federal sentence at the Florence penitentiary known as "SuperMax."

Lessons Learned

My year-and-a-half working on the Oklahoma City bombing case was a remarkable apprenticeship. Although I do not practice criminal law today, the lessons learned have been invaluable in my complex civil litigation practice. I came to know the importance of developing a trial theme from the beginning of a case, the benefits of organizing the evidence and witnesses in a coherent way from day one, and the utility of putting together an excellent team and appropriately delegating responsibility. Most significant was the lesson of how important it is to develop and maintain credibility with the court. I remain grateful to Michael Tigar and Ron Woods for giving me the opportunity to learn at the feet of legal giants, and to Judge Matsch for demonstrating to the country and the world that high-profile defendants accused of horrible crimes can be tried publicly in our legal system with dignity, decorum, and fairness.D

N. Reid Neureiter is a senior counsel with Husch Blackwell, focusing his practice on complex commercial litigation and trials. Before writing this article, Neureiter received permission from Terry Nichols to discuss Neureiter’s role in the case. Read the first part of the story at  denbar.org/docket.


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