The same jurors who found Terry L. Nichols only indirectly responsible for the death and destruction caused by the Oklahoma City bombing can still punish him with death, the judge overseeing the case ruled Wednesday.
In trying to save Nichols’ life, his defense team had argued that the jury’s split decision made consideration of a death sentence moot. Citing Latin and legal precedents, the defense in effect said the jury concluded Nichols did not intend to kill anyone and so himself could not be killed.
“There cannot be a death sentence without proof of major participation,” said Michael E. Tigar, the lead defense attorney. “… Mr. Nichols now has a right not to face this (death) penalty at all.”
After about 40 hours of deliberations over six days, the jury on Tuesday found Nichols guilty on one count of conspiracy and eight counts of involuntary manslaughter, a compromise verdict that indicated it did not accept the government’s contention that Nichols and Timothy J. McVeigh were equal partners in the bombing. McVeigh was convicted in June on all 11 federal counts and sentenced to death by lethal injection.
Despite the judge’s ruling, courtroom observers said Tigar had done what he set out to do: save his client. While Nichols, a 42-year-old former farmhand, could technically receive a death sentence, they said the same jury that acquitted him of the bombing itself and refused to convict him of murder is more likely to opt for life in prison.
“What Tigar did is what I call appeal issue euthanasia,” said Scott Robinson, a Denver defense attorney who has followed the trial closely as a media commentator. “The death penalty is a dead issue. The jury is probably not going to impose it, but if it does, it won’t hold up on appeal.”
Calling U.S. District Court Judge Richard P. Matsch’s decision “safe, sane and sage,” Robinson added that the judge can always overturn the jury if it decides for death by finding the punishment disproportionate to the crime. The seven women and five men on the jury will have three options: life, death or a lesser sentence imposed by the judge.
The death penalty phase, a sort of trial within a trial, is scheduled for Monday, with the prosecution calling witnesses who will testify to the harm and heartache caused by the April 19, 1995, bombing of the Alfred P. Murrah federal building. The deadliest terrorist attack on U.S. soil killed 168, including 19 children, and injured 500 others.
Tigar argued Wednesday that those witnesses should not even testify, because the defense conceded the damage done and the jury essentially found that Nichols was not responsible for it. But Matsch rejected Tigar’s attempt, and the government is expected to fight hard both to save face and the circumstantial case.
Prosecutor Sean Connelly, who called the verdict “inconsistent,” countered Tigar’s arguments by saying the law was clear that Nichols could be sentenced to death. The penalty is appropriate, he said, because the jury convicted Nichols of conspiring to bomb the federal building and the resulting deaths were foreseeable. Only the conspiracy count carries the possibility of a death sentence; Tigar contended that its imposition required at least a conviction on second-degree murder.
The jury reached its verdict after hearing from scores of witnesses during more than six weeks of testimony. The prosecution depended on fingerprints, telephone records and hotel receipts to link Nichols to the bombing, although both sides agreed he was not in Oklahoma the morning of the blast. Defense attorneys countered Nichols was a family man who was being tied to the attack by federal investigators intent on convictions at any cost.
The verdict shocked relatives of victims and survivors, who were outraged that only McVeigh was held fully accountable for his role in the truck bombing.
It was “a disgrace to all Americans,” said Jannie Coverdale, whose two grandsons died in the blast.
Regardless of the outcome of the penalty phase, Nichols still faces trial on state charges of murder, bombing and conspiracy in Oklahoma. While he could only be charged with the deaths of eight federal law enforcement officials in federal court, Oklahoma County District Attorney Bob Macy has said he will try Nichols for the other 160 deaths. The state has the death penalty.