The Nichols Verdict: What's it all mean?

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

Dec. 24 - The Terry Nichols jury apparently believed that the former Army soldier was involved in the bomb plot, but that the prosecution failed to prove that he intended to commit an intentional killing, said Christopher Mueller, University of Colorado law professor.

"It sounds to me as though the jury concluded that Nichols was up to his ears in the planning and preparation process but that he was not fully involved at the time of the explosion," Mueller said. He and other legal experts offered their explanations about why the jury delivered the mixed verdict, and they agree that the jurors' actions send a message that they will not grant a death penalty to prosectors.

Legal analyst Andrew Cohen concluded that the jury was swayed by the strategy of Michael Tigar to humanize Nichols by introducing his role as loving father and son, contrasting his client to the cold-blooded rage of condemned killer Timothy McVeigh.

"I think the jurors are signalling that they recognize the difference between McVeigh's involvement and Nichols'. He may have been a co-conspirator, but they don't believe he detonated the bomb.

"He did not intend to kill all those people and to me that labels him as co-conspirator, the helper to the Big Cheese.

"I think they bought the defense that Nichols was not at Oklahoma City and did not share the same kind of hatred for federal officers that McVeigh did," Cohen added.

Craig Silverman, a former Denver prosecutor and a media legal analyst, summed it up this way:

"Here's what happens. They concede that McVeigh was a monster, the driving force behind this crime. Nichols was in a lesser role. The jury decides there is no way Nichols could have expected this monster to do something so heinous. Nobody can." The only question remaining, Silverman said, is whether prosecutors will decide to pursue the death penalty in the face of almost certain defeat. "I can say there is no way they can win it," Silverman said. "The prosecutors could put on a strong emotional display of victims' testimony. But I still don't think it will get them where they want to go."

David Lane, a staunch opponent of the death penalty, agreed.

"I don't think there is a chance that jury will sentence Terry Nichols to death," said Lane, a veteran lawyer experienced in defending capital cases. "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." Mueller concurred: "I think the jury sent an indication they they will not be willing to sentence Nichols to death. So Michael Tigar has scored a tremendous success. His lawyering was also superb," Mueller said.

The verdict, which convicted Nichols of conspiring with condemned killer McVeigh to use a weapon of mass destruction, at the same time absolved him of the intentional killing of the eight federal agents. Instead, they found Nichols had recklessly committed involuntary manslaughter. It's too early, Cohen said, to say that Tigar has captured a big victory. "He did a wonderful job of lawyering and the result is due in large part to what Tigar did," Cohen said. "But the evidence was not as strong as it was in the McVeigh trial. "Some credence should go to the common sense of jurors who may have seen through all the mumbo jumbo and seen the truth that there was not as much damaging evidence (as in the McVeigh trial,)" Cohen added.

Silverman also credited jurors with bringing common sense to their verdict.

"Some cynics may call this verdict a Christmas compromise but others may say it is a example of the system working perfectly. The jurors were not convinced beyond a reasonable doubt that Nichols planned to kill anybody."

Lane recalled that eyewitnesses in the case failed to place Nichols at Geary Lake near Junction City, Kan., where the bomb was finally assembled.

"I think they proved a lot of interaction with Timothy McVeigh. They really proved that Nichols had several bad conversations with McVeigh. But talk is cheap. Talking and bombing are two different things," Lane said.

"Nothing links Nichols to loading the bomb, driving to Oklahoma city and parking in front of the Murrah building and setting it off.

"If I were the prosecutor, I would assess my chances of getting the death penalty at about zero," Lane said. "It would be hugely expensive to taxpayers and (the death penalty) would be on shaky grounds constitutionally."

At this time, no one knows if the untested anti-terrorist statute - which permits the government to seek the death penalty for the conspiracy charge - will be found constitutional by the United States Supreme Court, Lane said.

Under federal law, Nichols cannot be sentenced to death for the convictions of involuntary manslaughter.

Silverman compared the dilemma facing prosecutors to the decision of Denver District Attorney Bill Ritter to withdraw his request for the death penalty in the case of accused child killer Jon Morris.

When the jury in that case came back with a verdict of felony murder - and not the more serious charge of first-degree murder - Ritter concluded that the U.S. Constitution would not support the death penalty in a case where there was no show of intentional murder.

At the same time, prosecutors may be pressed by the political climate surrounding the nation's greatest crime to try to persuade the jury that Nichols should be put to death, said Silverman.

"This trial is set against a backdrop of Bill Clinton and Janet Reno publicly stating that anyone involved in this monstrous act should be subjected to the possibility of capital punishment. I expect this a decision that will be made at a high level by public officials," Silverman said.

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