Nichols Trial Judge OKs Death Penalty Option

U.S. District Judge Richard P. Matsch defended the jury’s verdict in the trial of Terry L. Nichols and, dismissing objections Wednesday from defense attorneys, authorized the panel to consider the death penalty.

“I’m not saying this is an inconsistent verdict,” the judge said of the jury’s findings Tuesday. “But the jury, in any criminal case, is entitled to have an inconsistent verdict.”

The death penalty phase is to begin Monday.

Matsch’s comments came as he weighed a motion by Michael E. Tigar, Nichols’ lead defense attorney, to rule out the death penalty because the jury’s verdict was mixed.

In effect, jurors found that Nichols did not intend to kill the eight federal law enforcement officers who died in the Oklahoma City bombing. But at the same time, the jury held that Nichols conspired with bombing mastermind Timothy J. McVeigh in a terrorist action in which deaths were foreseeable.

Given those verdicts, “how in the world is the government going to go forward here?” Tigar asked the judge. “Mr. Nichols has a right not to have to go through this.”

But prosecutor Sean Connelly argued that the verdict on the conspiracy charge carries a possible death sentence, and that count alone was enough to move to a death penalty phase.

Connelly said the government did not have to prove that Nichols intended to kill anyone. Under federal law, he said, Nichols can be executed if he knew deadly force would be used and if the bombing was carried out with “reckless disregard for human life.”

In denying Tigar’s motion, Matsch said the issue was appropriate for jurors to decide.

“The jury may believe that Mr. Nichols participated with Mr. McVeigh in the conspiracy but that the directives were not so specific about the [Alfred P.] Murrah building.

“Then assume that Mr. Nichols participated in the construction of the weapon of mass destruction, and that he assumed that Mr. McVeigh and others would use it, but not that it would be used particularly against the Murrah building but as an act of terrorism to intimidate or coerce the government,” Matsch reasoned.

Matsch’s ruling sets the stage for a climactic second phase of the Nichols trial.

The government will argue for death and will put victims on the witness stand to describe the horror of the bombing. The defense will counter with testimony that Nichols’ life should be spared because he never intended for anyone to die in the April 19, 1995, blast.

Nichols was charged in an 11-count indictment. Jurors found him guilty of the first count for conspiring in the bombing. The jury also determined that the crime resulted in the death of one or more people and that death was a foreseeable result of Nichols’ actions.

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But the jury also said he was not guilty of using the weapon of mass destruction--the bomb inside a Ryder rental truck--and that he did not destroy federal property.

On the remaining eight counts, involving the eight federal law enforcement officers, any verdict of first-degree murder against Nichols would have carried the death penalty.

But in each of those counts, the jury skipped past the first-degree and second-degree verdicts and instead found him guilty only of involuntary manslaughter. The maximum penalty for involuntary manslaughter is six years in prison.

McVeigh was convicted on all first-degree murder counts. But McVeigh left a stream of letters about his intentions, and he also told others about his specific plans for attacking the Murrah facility.

In Nichols’ trial, the government could provide no evidence that he told anyone that his goal was to bomb the Murrah building and kill many people.

And the testimony from victims during this trial was far less horrifying and extensive than it had been at McVeigh’s trial last spring.

Whether that was a mistake by the prosecution is unknown because it is not clear who made the decision: prosecutors or the judge. Many of Matsch’s rulings are sealed from the public, so it could not be determined whether the judge, concerned about prejudicing the jury, ordered prosecutors to tone down the testimony of victims.

To try to recover momentum, the government has decided to increase the number of witnesses who will testify in the sentencing phase. Those witnesses include relatives of the dead, people who were gravely injured in the building and rescue workers who continue to be traumatized by their inability to save others.

“It’s going to be no holds barred,” one prosecutor promised earlier in the week while the jury was still in deliberations.

But Wednesday, as prosecutors continued to dissect the verdict, some members of the team expressed concerns that too much graphic testimony could desensitize a jury already reluctant to deal harshly with Nichols.

Likewise, it is uncertain whether Matsch will restrict testimony of victims in the penalty phase.

If the jury does return a sentence of death, the verdict would face a formidable legal challenge on appeal.

The death penalty provision for conspiring to use a bomb or weapon of mass destruction is a new feature of federal law and has not been tested before the Supreme Court.

Congress added the penalty, along with more than 50 other death sentence provisions, to federal law in 1994 as part of a broad anti-crime bill. Most have yet to be used.

In the past, the high court has strongly suggested that the death penalty can be used only against a person who deliberately murders another. In 1977, for example, the justices threw out a Georgia law that allowed a death sentence for rapists.

In the Nichols case, defense lawyers could argue that their client cannot be sentenced to death because he was not convicted of deliberate murder on any of the eight individual murder counts or on the count charging him with using a bomb to kill.

While Nichols was found guilty of conspiring to make the deadly bomb, his lawyers nonetheless can claim that he stopped short of committing murder. McVeigh, by contrast, was convicted on all first-degree murder counts.

Yet if Nichols were to prevail on appeal, it would not necessarily save him in Oklahoma. State prosecutors say they will bring murder charges against Nichols there for the other 160 deaths in the bombing. If convicted, he could be given a death sentence under state law.

In Oklahoma City, Dist. Atty. Bob Macy said the conspiracy and murder charges he plans to file are easier to prove than the federal statutes. He also said he thought the federal jury had reached a “strange verdict.”

“I was shocked, especially with the involuntary manslaughter verdict,” he said.

Nichols’ trial began Sept. 29, and nearly 200 witnesses testified.

The government did show that Nichols participated with McVeigh in renting storage lockers and purchasing ammonium nitrate and fuel oil. But McVeigh alone rented the Ryder truck, and Nichols did not accompany him to Oklahoma City on the morning of the blast.

Furthermore, the government’s evidence that Nichols helped McVeigh assemble the bomb was sketchy. Prosecutors found only two fishermen who saw the Ryder truck and a pickup resembling Nichols’ vehicle at a Kansas fishing lake, where they believe the bomb ingredients were mixed.

But neither fisherman ever saw Nichols or McVeigh there.