No Nichols death penalty

Jurors deadlock; judge will sentence

Boston Globe/January 8, 1998
By Lynda Gorov

DENVER - They couldn't bring themselves to do it.

Unconvinced of Terry L. Nichols' exact role in the Oklahoma City bombing, a Colorado jury yesterday turned the decision of his punishment over to the judge, ruling out the possibility of a death sentence. As at least one juror wept and others looked downcast, Nichols stared blankly when a deadlock was declared and the jury dismissed after two days of deliberation.

Afterward, Nichols allowed himself a small smile as he shook hands with the men and hugged the women on his defense team. Prosecutors, stunned once before when the jury acquitted Nichols of first-degree murder and found him guilty only of conspiracy and involuntary manslaughter, sat motionless, disappointment on their faces. Walking out of the courtroom for what they had hoped might be the final time, relatives of some of the bombing victims sobbed so loudly that the sound echoed through the hallway.

The deadlock leaves Nichols, 42, facing the likelihood of a sentence that will put him in prison for the rest of his life. Under a Supreme Court ruling in 1976, only a jury may impose the death penalty.

A sister, who joined Nichols' parents, brothers and wife Marife in court, smiled when she realized his life had been saved.

''I think he was building a life; he may also have been building a bomb,'' said jury forewoman Niki Deutchman, combining the claims that the prosecution had made to win conviction and the defense had made to save Nichols' life. ''I don't know. ... The government was not able to prove satisfactorily that Terry Nichols was greatly involved, only somewhat involved.'' Deutchman said that some jurors did not accept the prosecution's contention that Nichols was an equal partner in the deadliest terrorist attack ever on US soil, considering his role peripheral at most. She said that in her view the prosecution's case was rife with holes, and that its reliance on innuendo and circumstantial evidence helped her understand how some Americans had come to loathe and distrust the federal government - remarks that enraged already upset relatives of the dead even further.

''At the verdict, I felt like a knife was piercing my chest,'' said Diane Leonard, whose husband was killed in the blast. ''In any civilized society, death is the only appropriate punishment for such an horrendous act.''

US District Court Judge Richard P. Matsch lauded the jury's effort.

''You worked at it; there's no question about it,'' he told jurors before sending them home shortly after 9 a.m. Denver time. ''The result here will be subject to comment by many. There will be some who will criticize it. There will be some who praise it. You know that you are answerable to no one for your decisions.''

Cheering crowds greeted the conviction and sentencing of Timothy J. McVeigh earlier this year, but yesterday's decision was received somberly, and mostly in silence. Neither prosecutors nor defense attorneys had much to say, hurrying past reporters to start the strategy sessions that will have one side arguing for life without possibility of release and the other for less time in prison for Nichols.

''The jury has spoken, and the judge in summarizing this proceeding has given everybody an invaluable object lesson on how the American justice system works,'' said Michael E. Tigar, the lead defense attorney.

Said Larry A. Mackey, who led the prosecution team, ''We of course regret that the jury was unable to reach a unanimous decision but we understand how difficult those deliberations must have been.''

Those deliberations, which resulted first in a compromise verdict and then in a deadlocked jury, had jurors raising their voices and breaking down in tears at times, Deutchman said. But 13 hours of discussion over two days could not get them to agree on whether Nichols should be sentenced to death or life in prison, and with a note to the judge late Tuesday, a frustrated, exhausted jury declared itself deadlocked.

Now Matsch will decide Nichols' sentence. Both the prosecution and the defense will now prepare another round of arguments, while a court employee prepares a sentencing report for the judge. A decision is not expected until late February, at the earliest.

Under the conspiracy charge, Nichols could receive life without possibility of release. Each involuntary manslaughter conviction carries a six-year sentence, or a total of 48 years for the eight federal law enforcement agents that Nichols was found guilty of killing indirectly. If sentenced to the maximum, he would be 90 before he could be released on those convictions alone.

''You can make any calculation you want; Terry Nichols is not going home any time soon or ever,'' said Scott Robinson, a Denver lawyer who has attended the trial as a media commentator. ''I call it a Methuselah sentence. Only Methuselah would live to see the light of day.

''It's not a crushing defeat for the prosecution,'' Robinson added. ''If people view it as that, shame on them.''

Still, many of the victims' relatives who were in court yesterday were far from satisfied, saying that the jury had done a disservice to everyone touched by the bombing that injured 500 people. They called the jury inept and unfair, and said that justice will have to be served in Oklahoma, where both Nichols and McVeigh are expected to face murder charges in the deaths of the 160 other men, women and children killed in the April 19, 1996, explosion.

''I don't think they did their job at all; I think he deserved death just as much as McVeigh,'' said Frederick Anderson, whose wife died in the blast. ''I hate spending the money to redo this, but just as a safety net, I think they should.''

Added Roy Sells, who also lost his wife that morning, ''I'm not sure Terry Nichols wasn't the ringleader of this. ... They planned it for months. If that's not premeditated, I don't know what is.''

But Deutchman said the government did not prove its case and suffered from bungling by investigators and the FBI's decision not to tape record a 9 1/2-hour interview with Nichols after he heard his name connected to the bombing on the radio and turned himself in to authorities.

She added, however, that the jury was not swayed by the defense team's repeated mention of Nichols as a family man who may have held antigovernment views that were unusual but not illegal. Prosecutors had argued that the bombing was in retaliation for the fatal siege at the Branch Davidian compound outside Waco, Texas, two years to the day before the Oklahoma City attack.

''It makes a difference if he cares'' about his family, Deutchman said. ''But it does not necessarily mean he could not be involved in something like this if he cared deeply about the cause.''

The judge, but not the jury, is expected back in court Feb. 9 for the start of the second penalty phase. Many of the victims' relatives said they will be there, too.

''We thought this would be over real soon and we could get back to our lives,'' Sells said. ''I think that was my biggest disappointment, that we can't end this thing.''

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