As jurors in the Terry Nichols trial gave their assessments last week of the case before being discharged, prosecutors in Oklahoma City, the scene of the bombing attack for which he had been charged, were dissecting their every word.
In fact, Oklahoma prosecutors watched every development in the gavel-to-gavel coverage via closed-circuit television, as they had earlier from their courtside seat during the Timothy McVeigh trial.
Prosecutors in the Oklahoma County district attorney’s office are attempting to learn from the successes and mistakes made in the two federal trials as they prepare to try McVeigh and Nichols on state charges. In sketching out their strategy for the upcoming trial, Oklahoma prosecutors had the luxury of seeing their case played out before them.
In the federal trials, McVeigh and Nichols were charged with conspiracy to use a weapon of mass destruction, a 4,000-pound truck bomb, to destroy the Murrah Federal Building. They also were charged with setting the bomb and eight counts of first-degree murder for the deaths of eight federal agents.
In the expected state case, McVeigh and Nichols would face conspiracy charges as well as first-degree murder charges for the 160 others who died in the bombing on April 19, 1995.
McVeigh, convicted on all 11 counts last spring, was sentenced to death. Nichols, convicted in December of conspiracy and involuntary manslaughter, escaped the same penalty last week when jurors deadlocked. The impasse automatically sent the case back to U.S. District Judge Richard Matsch, who can only sentence Nichols to life in prison or a lesser penalty.
Oklahoma prosecutors are seeking the death penalty for both men in the state trial.
“Watching the trials put us in a position of having firsthand assessment of how various witnesses will do on the stand on direct and cross-examination, what exhibits were too technical or confusing, and what evidence might be ruled inadmissible,” said Richard Wintory, a senior assistant district attorney in Oklahoma County.
“Our case will be more straightforward,” Wintory said. “We feel confident in the state of Oklahoma’s ability to convict and obtain sentences of death for both individuals.”
Legal experts disagree on whether the state’s plans to try McVeigh and Nichols for the bombing violate constitutional protections against double jeopardy. In recent years, prosecutors have put defendants on trial who already had been tried for the same or similar charges in courts in different jurisdictions.
For example, after being acquitted by a Los Angeles County jury, two of the four Los Angeles police officers accused of beating Rodney King were convicted by a federal jury.
“Prosecutors say it’s not double jeopardy because (these defendants) are being tried by two different sovereignties. They feel that the state should be able to try someone if they didn’t like what the feds did,” said Leonard Kavise, a professor at DePaul University College of Law.
“But this is a silly, made-up theory. It’s definitely a violation of how double jeopardy was originally conceived,” said Kavise, noting that the practice has been ruled acceptable in case law.
District Atty. Robert Macy, who has been Oklahoma County prosecutor for nearly 20 years, expects to file conspiracy and first-degree murder charges against Nichols and McVeigh in the early spring and hopes to bring them to trial by autumn.
Prosecutors say the mixed verdict for Nichols as well as the lack of a death sentence in his case gives them more impetus to aggressively prosecute Nichols and McVeigh.
To minimize costs and grief, Macy is considering trying Nichols and McVeigh at one trial with two juries. Oklahoma district attorneys, who have little experience using this method, are seeking guidance from prosecutors in Cook County, Ill., who have used the single-trial, dual-jury method to try members of El Rukn street gang.
“The basic premise is that the cases have a huge amount of overlap–80 to 90 percent of the evidence is identical,” said Wintory.
The Oklahoma prosecutors’ conspiracy case against Nichols would differ from the one presented by the federal government.
Though the jury convicted Nichols of conspiracy, jurors couldn’t agree whether he knew his action would result in the deaths of the eight federal agents. Determining Nichols’ intent was the first step jurors needed to take before deciding whether to sentence him to die.
Wintory said Oklahoma prosecutors simply need to prove that Nichols “aided, promoted and encouraged” McVeigh in the plot to blow up the Murrah building. Rather than focus strictly on the building, Wintory said, prosecutors would argue that Nichols had to know someone would die in the blast.
“When Nichols met McVeigh in Oklahoma City to stash the getaway car, Nichols, with his knowledge of fertilizer bombs, knew the bomb had the potential to cause death,” he said.
“They parked the car by the YMCA,” he added. “The Y is occupied 24 hours and is down the street from the Murrah building. Also there is a 15-story apartment building half a block away.”
In addition to reviewing evidence and preparing his strategy, Macy is focusing on statements from jurors about the weaknesses in the federal government’s case against Nichols.
“You pay a lot of attention to what the jury liked and didn’t like about what prosecutors presented,” said Macy’s predecessor, Andrew Coats, now dean of the University of Oklahoma at Norman law school. “It’s important to know how those jurors felt.”
