Judge defends Nichols verdict Jury's decision doesn't rule out death penalty in Okla. City bombing

Sentencing stage is set

'Inconsistent' finding cited in motion against capital punishment

December 25, 1997|By LOS ANGELES TIMES

DENVER -- U.S. District Judge Richard P. Matsch defended the jury's verdict in the trial of Terry L. Nichols yesterday and, dismissing objections 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. "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 Tigar, Nichols' lead defense attorney, to rule out the death penalty because the verdict the jurors reached Tuesday was mixed.

In effect, jurors found that Nichols did not intend to kill the eight federal law enforcement officers who died in the Alfred P. Murrah Federal Building 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, Tigar asked the judge, "how in the world is the government going to go forward here? 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 that count alone was enough to move the trial 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 Murrah building," the judge said.

"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's ruling sets the stage for a climactic second phase of the Nichols trial.

The government will argue for death and put victims on the witness stand to describe the horror of the bombing, and 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.

Jurors found Nichols guilty of 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.

But the jury found him not guilty of using a weapon of mass destruction -- the bomb inside a Ryder rental truck -- and of destroying 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 first-degree and second-degree verdicts and instead found him guilty 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 plans for attacking the Murrah facility.

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

To try to recover momentum, the government decided to increase the number of witnesses who will testify in the sentencing phase. Those witnesses are 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 the others.

"It's going to be no-holds-barred," one prosecutor promised earlier in the week, while the jury was still in deliberations.

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.

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 he was found guilty of conspiring to make the deadly bomb, Nichols' lawyers nonetheless can claim he stopped short VTC of commiting the act of murder. McVeigh, by contrast, was convicted on all first-degree murder counts.

Pub Date: 12/25/97

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