Mixed verdict on Nichols

The Denver Post/December 24, 1997
By George Lane and Kevin Simpson

Dec. 24 - A jury found Tuesday that Terry Nichols conspired to build the bomb that exploded outside the Alfred P. Murrah Federal Building in Oklahoma City more than two years ago but, but the mixed verdict that confused and angered some survivors held him only marginally responsible for the death and destruction that followed.

The jury found Nichols not guilty of 10 of the 11 original charges against him, casting into question whether prosecutors will get the death penalty they have sought for almost two years.

The guilty verdicts on one count of conspiracy and eight lesser charges of involuntary manslaughter mean that Nichols could still face death or life in prison for the April 19, 1995, bombing of the Alfred P. Murrah Federal Building - the worst act of terrorism on U.S. soil.

But legal experts said that was highly unlikely.

"The government is clearly on the defensive in the second phase, and they have a stiff hill to climb," said Stephen Jones, lead defense attorney for Nichols' convicted co-conspirator Timothy McVeigh, who is appealing his death sentence in the case.

David Lane, a veteran lawyer experienced in defending capital cases, agreed.

"I don't think there is a chance that jury will sentence Terry Nichols to death," said Lane, "Given the fact that the jury said he didn't act with intent to kill. I can't believe the prosecution can convince 12 people to kill him."

Nichols, a 42-year-old Kansan who earned a living selling military surplus while prosecutors say he and McVeigh plotted the bombing, was calm and somber as Matsch read from the forms.

Seated behind him were bombing survivors, the relatives of those who died, and Nichols' own family, some of whom attended every day of the trial.

His mother, father, sister and one of his brothers likewise appeared calm as they listened to the verdicts from the front row of the spectators' section.

As it became clear that the jury had opted to convict Nichols of mostly lesser charges, the tension in the courtroom broke. There was no outburst from the families of the dead or from Nichols' family. But some of the victims' relatives cried quietly.

"I blame the judge," said an angry Jannie Coverdale. "He should have never agreed with the defense for second-degree murder and involuntary manslaughter. Not in a first-degree murder charge. He never should have done it." Coverdale, whose grandsons Aaron, 5, and Elijah, 2, died in the blast, said she thought defense attorney Michael Tigar's "last little antics" may have swayed the jurors.

At a hearing this morning, lawyers will argue whether the jury should even be allowed to consider the death penalty for Nichols. Prosecutors will say the conviction for conspiracy to use a weapon of mass destruction carries that possible punishment. Defense lawyers are expected to contend that death is inappropriate given the jury's finding.

If U.S. District Judge Richard Matsch rules that the jury should consider death, a second phase of the trial will begin Monday. The same jury will from more witnesses before ruling on Nichols' fate.

"Your job's not done," the judge told the jury, which deliberated 40 hours over six days before reaching its verdict.

He warned them again not to talk to anyone about the case. "Please be very careful and the best thing that you can do ... is turn off, turn out, and turn away." The judge also told lawyers not to talk, prompting lead defense attorney Michael Tigar to cancel a planned news conference.

"I think the verdict speaks for itself," Tigar said outside courthouse after the verdicts.

"The jury has spoken, we accept their verdict in its entirety," said prosecutor Larry Mackey. "We are prepared to go forward now to the penalty phase." The jury had asked only one question through its long deliberations. When it returned with a query shortly after mid-day Tuesday, tension rose. Word of a verdict came shortly after 4 p.m.

The jury forewoman, who had smiled broadly at Nichols and his backers at least twice in preceding days, handed the verdict forms to a court employee.

During closing arguments, Tigar called Nichols his brother in an attempt to humanize his client.

"Maybe that's what threw them," Coverdale said.

"I think it's absurd," said Marsha Kight, who lost her daughter, Frankie Merrill, in the bombing and has kept vigil through two trials. "What did they think (Nichols) was going to do with that bomb? He knew exactly what he was going to do with that bomb - deliver it to the Murrah building and kill everybody in that building."

Roy Sells, who lost his wife Leora Lee in the bombing, said Nichols' conviction on the conspiracy charge is inconsistent with his acquittal on first-degree murder.

"It's kind of a slap in the face," Sells said. "It was premeditated murder. It took months to build this bomb and so I think it was premeditated." But Sells said he felt a sense of victory even with the manslaughter convictions.

"I'll accept the verdict that they get out there," he said. "I just don't know what their mindset was. We'll just go along with whatever happens."

Aside from the eight federal officers, the other 160 people who died that sunny spring morning worked for government agencies in the nine-story Murrah building. A number of early morning visitors also lost their lives, along with 19 children and all the employees of a day-care center on the building's second floor.

Nichols, who grew up in Michigan, spent most of his early 20s in real estate sales. At age 33, his career faltering and his first marriage failing, he joined the Army. Assigned to Fort Benning, Ga., for basic training, he met McVeigh, now 29. The two shared a passion for guns and, at first, a love of the Army.

But a year later, Nichols' wife left him, and he took a hardship discharge to go home and care for his son. McVeigh went on to fight in the Persian Gulf War, where he was decorated for his service. Prosecutors said McVeigh left the Army with a bitter taste in his mouth and became an anti-government zealot after the government siege on the Branch Davidian compound outside Waco, Texas, two years to the day before the Oklahoma City bombing.

Nichols began attending meetings of an anti-government group and at one point renounced his citizenship. Prosecutors said Nichols and McVeigh watched the end of the Waco siege that killed 60 people and planned the bombing in revenge. Defense lawyers agreed that McVeigh was involved but said Nichols never held such virulent anti-government views, settled into his second marriage and wanted no part of the plot.

"Terry Nichols was building a life, not a bomb," Tigar said in his opening arguments.

Almost immediately after the bombing, employees at a Ryder truck rental agency in Junction City, Kan., described for investigators the man who used the name Robert Kling to rent the bomb truck, and a man who was with him that day. From composite drawings created from these descriptions, McVeigh was identified as Kling. The second man, known to this day as John Doe No. 2, has never been identified, arrested or charged. That was key to the defense case that someone else conspired with McVeigh in the bombing.

At McVeigh's trial, prosecutors established that someone helped him acquire ammonium nitrate fertilizer and racing fuel and pack the ingredients into barrels that were loaded into the rented Ryder.

But it was McVeigh alone who drove the bomb-laden truck to the Murrah building, parked it and triggered the bomb. Prosecutors conceded at both trials that Nichols probably was at home in Herington, Kan., with his second wife, Marife, and two of his children when the bomb exploded.

And while a receipt for 2,000 pounds of ammonium nitrate fertilizer was found in Nichols' home after the blast, prosecution witnesses who sold it couldn't identify the purchaser or even say whether he wore glasses.

In opening statements at the Nichols trial, lead prosecutor Mackey argued that Nichols planned it so he was nowhere in sight when the bomb blew. But, he said, Nichols knew his fellow terrorist was in Oklahoma City, and he "knew exactly what Tim McVeigh was there to do." "This case is about two men who conspired to murder innocent people," Mackey said that day. "Their plan succeeded. ... That day, Terry Nichols was not in Oklahoma City, but in the months and days before, he was side-by-side with Tim McVeigh."

But defense lawyers said Nichols didn't even know about the bombing until the next day and the government rushed to judgment.

Prosecutors built their largely circumstantial case on several linchpins. They said Nichols robbed an Arkansas gun collector to finance the bombing, helped McVeigh buy, steal and stash bomb components, and accompanied him to Oklahoma City three days before the blast to drop of the getaway car.

Tigar pointed out that when Nichols heard his name connected with the bombing on television two days after the tragedy he immediately went to the Herington police station, where he was questioned for 9 1/2 hours and eventually arrested.

Nichols, he said, told FBI agents the truth during that marathon interview but they failed to tape the interrogation and lied to Nichols and his wife repeatedly.

But prosecutors cited physical evidence seized from Nichols' home after the bombing, including:

  • Two receipts, each for 2,000 pounds of ammonium nitrate fertilizer sold to Mike Havens, which prosecutors said was a Nichols alias.

  • A receipt for an oil filter purchased by McVeigh at one Wal-Mart store and returned by Nichols to another Wal-Mart the week before the bombing. Prosecutors said that proved Nichols a liar when he claimed he hadn't seen McVeigh for months until three days before the bombing.

  • Blue plastic barrels identical to the ones that FBI experts said were loaded with fertilizer and fuel oil and packed into the Ryder truck. Pieces of the exploded barrels were found at the bomb site. Tigar complained that the FBI mishandled the evidence.

  • A number of guns with serial numbers matching those stolen from the Arkansas gun collector and a bedspread allegedly stolen from his girlfriend.

    Several witnesses testified that Nichols rented storage lockers in Kansas and Las Vegas to store bomb-related items. Nichols' ex-wife, Lana Padilla, said one locker contained gems the gun collector had reported stolen, along with a ski mask.

    Padilla also testified about a packet of letters Nichols gave her in late 1994 as he was leaving the country for the Philippines. In one letter, Nichols urged McVeigh to "go for it." The second letter sounded like a "last will and testament," the ex-wife said.

    But Padilla did the defense some good, too. Her testimony about her teenage son's fears for his father's safety when he left on that trip drew tears from Nichols, humanizing the defendant and supporting the picture that Tigar was trying to paint of a man who had everything to lose by plotting a bombing.

    In rigorous cross-examinations, Tigar argued that it isn't illegal to buy fertilizer and that blue plastic barrels like the ones in Nichols' garage are common on area farms. He challenged the list of serial numbers for the guns allegedly stolen from the Arkansas gun collector, proving that one had been bought by Nichols.

    Tigar also shredded the testimony of key prosecution witness Michael Fortier, who met Nichols and McVeigh in the Army and remained a close friend of McVeigh. Fortier, who lived in Kingman, Ariz., testified that McVeigh had told him of Nichols' involvement in the bomb plot.

    And he said Nichols was along when McVeigh showed off a storage locker containing explosives near Kingman. Under cross-examination, though, Fortier said that Nichols never personally talked about bombing a building or killing people and that McVeigh never mentioned the bomb plot when Nichols was within hearing distance.

    Fortier also admitted to heavy methamphetamine use and to bragging after the bombing that he could make a fortune on his story.

    The defense centered its own case on the theory that McVeigh conspired with someone else, probably John Doe No. 2. An array of witnesses said they saw other people with McVeigh in the days before the bombing, some resembling John Doe No. 2. Another string of witnesses testified that they saw a Ryder truck parked at Geary Lake State Park as early as April 10, 1995, nine days before the bombing.

    A 1996 Denver Post investigation showed that on April 10, Nichols was returning to Kansas from a gun show in Michigan, McVeigh was holed up in a hotel in Kingman.

    Prosecutors insisted that McVeigh and Nichols built the bomb at the lake on April 18. In the end, the jury may have believed Nichols help McVeigh with his plan, but he didn't build the bomb.

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