Quick Verdict A Favor To Nichols?

Convicted Oklahoma City bombing conspirator Terry Nichols, is led into the Pittsburg County Courthouse in McAlester, Okla., Wednesday, May 26, 2004, to wait for deliberations by the jury in the state's murder case against him. Nichols serving a federal life sentence for the deaths of eight federal law enforcement officials who died in the bombing, and could get the death penalty if convicted of 161 state first degree murder charges. (AP Photo/Sue Ogrocki) AP

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.



Terry Nichols' jurors unwittingly did him a huge favor Wednesday when they took only five hours or so to convict him of 161 counts of murder for his role in the Oklahoma City bombing. By failing even to offer the pretense of deliberative justice, the Nichols jury may have helped prove what defense lawyers have claimed for years: there could be no constitutionally fair trial for Terry Nichols in Oklahoma six years after he was convicted in federal court of conspiring with the bomber himself, Timothy McVeigh.

The second Nichols trial, which resumes next week with its penalty phase, so far has lasted about two months. Prosecutors called over 150 witnesses during the guilt-innocence phase. The defense called scores more. Closing arguments earlier this week lasted about eight hours. Yet the Nichols' jury barely made it past lunch on its first day of deliberations before reaching its conclusion on all of those charges. Is that inherently wrong? Of course not. Just because a verdict comes back quickly doesn't make it suspect.

But a verdict that comes back quickly in certain circumstances can be constitutionally suspect. And the circumstances surrounding this massive capital murder trial make this quick verdict seem like tangible proof that Nichols' fair-trial rights have been violated.

Nichols will have many different grounds upon which he will be able to appeal his conviction and, soon enough, his state death sentence. Among the most valid grounds will be that his jury was predisposed to his guilt because of his 1998 federal conspiracy conviction. How could a man have the constitutional presumption of innocence when his jury knows before trial that he was involved in (and already found guilty of) the crime? The idea isn't that Nichols isn't guilty. He clearly is. The idea is that once he was found guilty in Denver it is impossible to pretend he isn't in McAlester.

So there are plenty of reasons why the federal appeals courts will look upon this speedy justice with some skepticism. First, this was not a simple murder case involving an eyewitness or a confession. It was instead an extraordinarily complex circumstantial case involving many different inferences. The prosecution's star witness, Michael Fortier, has major credibility problems and even prosecutors concede that Nichols was nowhere near the Alfred P. Murrah federal building on April 19, 1995 (even as they shamelessly tried to portray him as more culpable than McVeigh). There is no doubt that Nichols was involved in some way in the conspiracy that led to the bombing. But you would think that the sheer size and length of the trial, and the scope and quality of the evidence, would have generated deliberations that lasted just a little longer than your average Los Angeles to New York flight.

By contrast, it took the first Nichols' jury, the one sitting in Denver in 1997 and 1998, about 41 hours to reach their guilty verdicts against Nichols after a trial upon which this latest Nichols' trial was almost entirely based. That Denver jury then was unable to reach a unanimous consensus on Nichols' punishment, forcing the trial judge to sentence him to life in prison without the possibility of early release. The Denver trial of Nichols wasn't perfect but it was about as fair a process as anyone might hope to get these days. So how do you explain the fact that it took the Denver jury eight times as long as the McAlester jury to reach its conclusions about Nichols' guilt?

The case against Nichols did not become eight times as strong over the intervening years. If anything, time weakened the case against Nichols by weakening the credibility and reliability of the scientific evidence against him. The jurors in Oklahoma are not, presumably, eight times as bright as were their Denver counterparts. In fact, some potential jurors in McAlester were caught before trial trying to scheme their way onto the jury in order to convict Nichols. Meanwhile, the defendant's lawyers weren't eight times less effective this time out and his prosecutors weren't eight times more eloquent in Oklahoma than they were in Denver. Even if you allow for the fact that there was a lone holdout juror in Denver it doesn't explain the discrepancy in the length of deliberations.

One fact that might help explain that discrepancy, however, is the fact that these latest Nichols jurors candidly told the judge during jury selection that they knew that the defendant already had been proven guilty of a role in the bombing. And the judge didn't really have a choice when determining whether such jurors would make it onto the panel-- virtually all of the candidates acknowledged some preconceived notion or another about Nichols. And why not? McAlester was not immune from the massive local media coverage of the bombing in 1995 or the two federal trials a few years later.

Indeed, the prejudicial publicity against McVeigh and Nichols was so prevalent in Oklahoma that it precluded their trials there in the first place. In February, 1996, U.S. District Judge Richard Matsch ruled that neither McVeigh nor Nichols could get a fair trial anywhere in the state. "The court finds and concludes," Judge Matsch wrote over eight years ago, "that there is so great a prejudice against these two defendants in the State of Oklahoma that they cannot obtain a fair and impartial trial at any place fixed by law for holding court in that state." And this was before the two men lost their presumption of innocence following their convictions.

If a highly-respected federal judge could conclude that Nichols and McVeigh couldn't get a fair trial in Oklahoma before they first went to trial, why should a federal appeals court conclude that Nichols could get a fair trial now, after McVeigh has been executed for his crime and Nichols himself was found guilty by a Denver jury? Has the passage of time had such a calming effect on the population that it would overshadow the results of the federal trials? If that were the case, you might argue there never would have been a second Nichols' trial to begin with. After all, the only reason Nichols is back in the dock is because Oklahoma wants to try to execute him. Five hours? After a two-month-long trial? With hundreds of witnesses? In a circumstantial capital case? Nichols might end up thanking his lucky stars that his jury was so eager to get rid of him.
  • Lauren Johnston

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