Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
For a guy with bad luck, sinister views, terrible judgment, evil friends and a history of capital murder trials, Terry Nichols sure knows how to avoid death row. For the second time in six years, the Oklahoma City bombing conspirator somehow managed to hang up his jury over the issue of what punishment he deserves for helping kill 168 people at the Alfred P. Murrah federal building on April 19, 1995.
After nearly 20 hours of deliberations over three days without a unanimous sentencing recommendation, after months of service in the case. And from what we now know, prosecutors weren't close to getting their death penalty against Timothy McVeigh's anti-government compatriot. Citing a family member of one of the jurors, the Associated Press reported Saturday that the last vote by jurors in the penalty phase was 7-5 in favor of the death penalty. Another report suggested that the last vote was 8-4 in favor of capital punishment.
That means that prosecutors with virtually every single advantage the government can have in a case like this -- including an awesome home-court advantage that skirted the unconstitutional-- only were able to persuade a bare majority of jurors that Nichols deserved to die for taking part in what was until September 11, 2001 the worst crime in American history. This from a jury that knew going into the case that Nichols had played a role in the bombing. This from a jury pool in a state that annually executes more death row inmates that most other states. This in a case with hundreds of victims, including dozens of children.
The jury's deadlock Friday in the penalty phase of Nichols' state murder trial surely ranks as one of the most stunning developments in modern legal history. Not just because those same jurors took only a few hours to convict Nichols of capital murder a few weeks ago. Not just because those jurors were told by prosecutors that Nichols' role in the bomb plot was more significant than that of McVeigh, who lit the fuse and who himself was executed three years ago to the day Nichols was spared. Not just because Oklahoma tried him again after his federal conviction primarily to get him executed. And not just because the budget-strapped state spent millions and millions of dollars to try to do so.
The result is virtually inconceivable, incomprehensible really, because it means that nearly half that jury believed as the "conscience of the community" that there were more "mitigating" factors supporting leniency for Nichols than there were "aggravating" factors that warranted a death verdict against him. That is a logic I cannot comprehend. If the jury unanimously believed that Nichols was a horrible mass murderer -- as bad as the now-departed McVeigh -- how could jurors not have recommended a death penalty against him? The aggravating factors involved in the Oklahoma City bombing are almost too numerous to mention. And the mitigating factors? Could there possibly have been enough mitigating factors in Nichols' favor to outweigh the enormity of his crime?
District Attorney Wes Lane, the hapless prosecutor who now takes up the mantle of failure from O.J. Simpson prosecutors Marcia Clark and Christopher Darden, told reporters that he believed that jurors were sympathetic to Nichols because they believed he had found religion in prison. But a lot of capital defendants find religion in prison-- I probably would-- without generating any sympathy from jurors. So did jurors believe in the end that Nichols was merely McVeigh's pawn? If so, why did they convict Nichols in just a few hours. And, if so, so what? Being a pawn in a mass murder plot doesn't necessarily mean you shouldn't be punished for being a mass murderer.
This result is much harder to explain than the result of Nichols' first trial, in federal court in Denver. In that 1997 trial, one lone holdout juror refused to vote for the death sentence, requiring Nichol's first judge to impose a life sentence. There is always a chance in a highly-emotional case for one juror to hold out-- indeed, defense attorneys pray for that scenario. But what happened this past week in McAlester, Oklahoma was far different from that fluke occurrence. Clearly, in Nichols' second trial, the jury rejected the prosecution's sentencing pitch as pointedly as they embraced the government's view of the bomb plot itself. It's just a stunner.
For prosecutors, it is a terrible result. And if they feel terribly sorry today, they deserve to. They never should have tried Nichols a second time anyway. "Clearly the reason they brought this action in Oklahoma was to kill Terry," defense attorney Brian Hermanson told reporters Friday. "They spend a huge amount of money. They caused a huge amount of heartache for a lot of people. And basically we reached the same result as the federal case."
Instead of bringing "justice" to some family members of victims, the second Nichols' trial only served to re-open some of the wounds caused by the bombing. It did not reveal new information about the bomb plot. It did not bring about a sense of "closure," whatever that means. It will not stand as a symbol of dogged governmental determination. Instead, Nichols II will stand as a symbol of colossal waste and prosecutorial overreaching. And hopefully it will be noted as a lesson in what can happen when the government prosecutes a case for all of the wrong reasons.
For Nichols, aside from the satisfaction of knowing that he's one of the few men in American history to go 2-0 in capital penalty trials, the result means little. He almost certainly now will be transferred back to the maximum security federal prison near Florence, Colorado to serve out the rest of his natural life in near solitary confinement. As any reader of this space knows from my past columns, even if Nichols had been sentenced to death, it is very likely his sentence would have been reversed upon appeal for a variety of legal reasons. Now, at least, the good citizens of Oklahoma (and the rest of us) won't have to spend time and money litigating those issues.
For the bombing survivors and the family members of victims, one can only hope that this ends this horrible phase of their lives. Unless Nichols one day decides to disclose everything he knows about the bomb plot-- which would have been a wonderful reason to avoid executing him, by the way-- there likely will never be another Oklahoma City bombing trial. Nearly 10 years after that awful event, that's how it ought to be. Never again should a survivor or rescue worker have to recount in open court what it was like to see the little bodies of all those dead children. Never again should a witness have to talk about walking through bodily fluids inside the crater of the blown-away building.
For me, all I can say is that I got this one completely wrong. I was convinced from the moment that Nichols was charged in Oklahoma that he would be quickly convicted and sentenced to death. I was convinced that he could not get a fair trial in a state where he had done so much damage. Never in my wildest dreams did I think that a group of jurors would refuse to recommend a death sentence against Nichols with all of the evidence and the weight of the justice system against him. In a case in which the defendant had a million-to-one-shot at avoiding a capital sentence, he avoided a capital sentence. Terry Nichols' luck finally may be beginning to turn.
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