Lawyers for Terry Nichols, who will stand trial next month in the Oklahoma City bombing, were rebuffed on two fronts Thursday.
They lost in bids to block the possibility of a death sentence against Nichols and to have the judge exclude what one prosecutor described as more than 60 percent of the government’s evidence against him.
The presiding judge, Richard Matsch of U.S. District Court, refused a defense request to declare the federal Death Penalty Act of 1994 unconstitutional and also declined to strike down the government’s notice that it would seek the death penalty for Nichols.
Nichols is charged with murder and conspiracy in the April 1995 bombing of the Alfred P. Murrah Federal Building, which killed 168 people and injured hundreds more.
Nichols’ co-defendant, Timothy McVeigh, who was found guilty on identical charges last June, is now on death row. Jury selection in Nichols’ trial will begin Sept. 29.
Michael E. Tigar, the lead lawyer for Nichols, 42, had asked that the death penalty be stricken because, he contended, the evidence would show that Nichols was, at worst, only a minor participant in the conspiracy that led to the bombing.
“The first time that can be considered is at the conclusion of the government’s case,” Matsch said in turning him down.
Tigar also asked Matsch to exclude, as hearsay, testimony by Michael and Lori Fortier of Kingman, Ariz. At the trial of McVeigh the Fortiers told the jury what he had said about Nichols.
Tigar also asked Matsch not to allow prosecutors to present evidence on the burglary of a Kansas explosives quarry in October 1994 and the robbery of an Arkansas firearms dealer in November 1994, contending that the incidents had no connection with the Oklahoma City bombing and would only prejudice a jury against Nichols.
Sean Connelly, the prosecutor who handled Thursday morning’s hearing, told the court that lawyers for Nichols were trying to chip away at “more than 60 percent of the government’s proof” before the trial. “The place to do that,” he argued, “is before the jury.”
The Arkansas robbery, he said, was committed by Nichols and was used to finance the bombing. The Kansas burglary, in which prosecutors say Nichols took part, was used to gather explosives to make the bomb, he said.
Adam Thurschwell, another lawyer for Nichols, also asked Judge Matsch not to allow prosecutors to present the anti-government literature and pamphlets found in Nichols’ home after the bombing, contending that mere possession of such material, protected by the First Amendment, meant nothing.
Prosecutors, he argued, want “to turn Nichols into McVeigh in the eyes of the jury” and “to treat Nichols’ nonviolent sentiment as equivalent to McVeigh’s violent, revolutionary fervor.”
He also asked the judge not to allow evidence about Nichols’ tax problems or statements he made in 1992 as a defendant in a lawsuit brought by First Deposit National Bank in Sanilac County, Mich.
In that case, Nichols wrote that he was defending himself “against a very strong political law system that runs over the average individual without a care for truth, honesty and justice.” He also contended that the court had no jurisdiction over him.
These statements, Thurschwell argued, were both irrelevant and prejudicial. Any member of the Libertarian Party might have said them, as well as many members of the Republican Party.
Connelly responded that Nichols’ statements were relevant for what they revealed about Nichols’ state of mind before September 1994, when the government says the conspiracy began. “Mr. Nichols and Mr. McVeigh did not wake up one morning and decide to bomb a federal building,” Connelly said.
Matsch said that he was inclined not to allow evidence about Nichols’ tax problems or his remarks in the Michigan case, but that he might consider allowing remarks Nichols made about the government and filed with the court in Marion County, Kan., in March 1994. Matsch did not rule out evidence about the Arkansas robbery or the Kansas burglary.
The judge also said he was concerned about the circumstances in which McVeigh talked to the Fortiers about Nichols. If he made those disclosures while trying to further the bombing conspiracy, they would be admissible, he said. If they were simply narrative, or chitchat, they would not. “I have some very serious concerns whether they can be considered,” the judge said, noting, “It’s very difficult to rule on these things in advance.”
After the hearing, Tigar said the issue of the Fortiers’ testimony was vital to his client’s case because “everything that Timothy McVeigh said to the Fortiers, about what Terry Nichols supposedly thought or was going to do, was said outside Terry Nichols’ presence.”
“That creates very special dangers because we can’t cross-examine Timothy McVeigh,” he said.
Connelly said, “Judge Matsch is going to let this case be tried to a jury, and he’s not going to make any broad categorical rulings about the evidence in advance.”