IN THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF COLORADO

 

Criminal Action No. 96-CR-68

 

UNITED STATES OF AMERICA,

 

    Plaintiff,

 

vs.

 

TERRY LYNN NICHOLS,

 

    Defendant.

 

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                     REPORTER'S TRANSCRIPT

                (Trial to Jury:  Volume 160)

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         Proceedings before the HONORABLE RICHARD P. MATSCH,

Judge, United States District Court for the District of

Colorado, commencing at 8:35 a.m., on the 7th day of January,

1998, in Courtroom C-204, United States Courthouse, Denver,

Colorado.



 Proceeding Recorded by Mechanical Stenography, Transcription

  Produced via Computer by Paul Zuckerman, 1929 Stout Street,

    P.O. Box 3563, Denver, Colorado, 80294, (303) 629-9285

                          APPEARANCES

         PATRICK RYAN, United States Attorney for the Western

District of Oklahoma, 210 West Park Avenue, Suite 400, Oklahoma

City, Oklahoma, 73102, appearing for the plaintiff.

         LARRY MACKEY, SEAN CONNELLY, BETH WILKINSON, GEOFFREY

MEARNS, JAMIE ORENSTEIN, and AITAN GOELMAN, Special Attorneys

to the U.S. Attorney General, 1961 Stout Street, Suite 1200,

Denver, Colorado, 80294, appearing for the plaintiff.

         MICHAEL TIGAR, RONALD WOODS, ADAM THURSCHWELL, REID

NEUREITER, and JANE TIGAR, Attorneys at Law, 1120 Lincoln

Street, Suite 1308, Denver, Colorado, 80203, appearing for

Defendant Nichols.

                         *  *  *  *  *

                          PROCEEDINGS

    (In open court at 8:35 a.m.)

         THE COURT:  Be seated, please.

         May I have counsel at the bench.

    (At the bench:)

    (Bench Conference 160B1 is not herein transcribed by court

order.  It is transcribed as a separate sealed transcript.)



    (In open court:)

    (Jury in at 8:40 a.m.)

         THE COURT:  Members of the jury, good morning.

         JURORS:  Good morning.

         THE COURT:  As I indicated to you yesterday afternoon

when I recessed your deliberations for the day, I would today

answer the question which you gave me late yesterday about a

quarter to five.

         Before addressing that directly, I want to sort of

review where we are in the case.  You, of course, heard the

trial in this case, heard the evidence at the trial, and on

December 23, returned your verdict.  And your verdict was

guilty on Count One, charging the conspiracy to use a weapon of

mass destruction; not guilty on the Count Two, use -- actual

use of a weapon of mass destruction by Mr. Nichols, and not

guilty on Count Three, the destruction by explosive count.

         You also on the Counts Four through Eleven, charging

first-degree murder, returned verdicts of not guilty of

first-degree murder, not guilty of second-degree murder, and

guilty of involuntary manslaughter.

         Now, because the offense of conspiracy to use a weapon

of mass destruction under Count One does by statute provide

that a person found guilty of that crime could be sentenced to

death, it was required of you that you proceed to the hearing

of additional information, because you also found in your

verdict that deaths did result and that these deaths were

foreseeable.  And that was what under the statute made possible

the imposition of the death sentence.

         So the information that you heard primarily dealt with

consequences of the bombing of the Alfred P. Murrah Building;

and in addition, of course, you heard things about the

defendant, Mr. Nichols, and things regarding his character,

background, and so forth.

         And then I instructed you with respect to how you must

approach the sentencing decision with instructions that outline

for you how you should analyze these questions and told you

that you had three choices, a choice among three options.

Those include death, a sentence to life imprisonment without

the possibility of ever being released, and any lesser sentence

provided by law to be decided by the Court.  And I told you

also that before considering the aggravating and mitigating

factors that were presented to you, information about them, you

must -- and before weighing them, you must focus on the

question of intention and told you that there were two criminal

intents to be considered.  And those were defined in the

instructions; and also, the verdict form directed that you

first go to Section I and first decide on intent.

         Now, this focus on intention is required by first of

all the -- what is the federal death penalty statute.  There is

a statute that deals specifically with the procedures to be

followed before a death sentence can be imposed in federal

court under federal law, regardless of the underlying crime for

which a death sentence is possible, so that in this case, the

underlying crime is this conspiracy to use a weapon of mass

destruction.  But then we turn to another statute, the federal

death penalty statute, that prescribes the procedures that must

be followed before such a sentence can be imposed.  And it is

that statute that says that there must first be a finding of a

requisite intent, which essentially is different forms of an

intention to kill.

         Now, that's required not only by statute but by the

Constitution of the United States, because there are really two

provisions in the Constitution of the United States that come

into focus when we're talking about the ultimate penalty of

death.  One is the Eighth Amendment, prohibiting cruel and

unusual punishments, and in these terms, when we're considering

sentencing, that has been interpreted by the Supreme Court to

preclude the possibility that someone would be sentenced

arbitrarily or capriciously or without a reasoned, rational,

moral response; and also the Fifth Amendment, providing that,

of course, no person can be deprived of life without due

process of law.  And the due process of law involves the

procedures that are necessary.

         Well, due process of law also requires that the

Government has the burden of proof on these questions of intent

and that the standard is beyond a reasonable doubt.

         So putting those things together, what the law

requires and what I instructed you on is that before you even

proceed with this matter of weighing the aggravating and

mitigating factors, or finding them and then weighing them, you

must focus on this issue of intention:  Was there proved to you

beyond a reasonable doubt, all of you, that Terry Nichols

intended to kill, using one of these two intentions as

described in some detail?

         And, of course, due process of law means also that all

12 jurors must be convinced beyond a reasonable doubt that the

proof was there.  Each individual must decide that based on the

evidence that was presented, but all must agree upon it; and

the unanimity on that issue is, of course, a fundamental

requirement of the law.

         You then on Monday undertook your task of deliberation

and discussed this matter all afternoon.  You then sent to me a

communication.  And this was fairly late in the afternoon.  In

substance, the communication was that some of you questioned

whether you'd already decided intention and what difference was

there.

         I answered that question here in court when I excused

you for the day, recessed your deliberations for the day, by

explaining that I couldn't give a direct answer to that.

That's not one of those questions where I could just say yes or

no.  It's sort of a "not necessarily" or "it all depends" type

of answer, because as I attempted to explain to you, it depends

somewhat on the jury's view of the evidence that supported the

verdict.

         And of course, you were not required to explain in

detail the way in which you decided that.  And you're still not

required to; never will be.  But I did not want to in my answer

in some way assume anything about the view that each one of you

had with respect to the evidence and what it did or did not

show with respect to intention.

         Now, that answer, I'm sure, is not very satisfactory

to you, because, of course, it would be more comforting for you

to -- me to tell you something more specific.

         But, as good citizens, you went to work and

deliberated more yesterday.  And what I did ask you to do is to

take a close look at the original instructions that I gave you

with respect to the elements of the offense of the conspiracy,

so that you could focus on just what was required for your

decision there and that also take a close look, on the

instructions that I gave you, with respect to these particular

specific intentions that must first be proven to your

satisfaction.  And I'm satisfied that you did that and carried

on your deliberations.

         And, of course, I'm sure that when you did that, you

saw by comparing them that there was a difference and that the

instructions with respect to what must be proved beyond a

reasonable doubt to find the defendant guilty of conspiracy did

not include the specific intentions that are required for a

finding of what you may say is the possibility of a sentence of

death.

         You then sent to me a second communication yesterday;

and in substance, again, without reading it now, it amounted to

telling me that there was -- well, that you were at a stage of

something of an impasse with respect to answering on these

intent questions.

         And I gave you a written response to that question.

In that, I attempted to go a bit beyond what I told you in

court Monday afternoon and explained to you that your verdict

on Count One did not require you to answer these two questions

in any particular way.  And I said that this might be helpful

to you again to have a little more definite answer; that you're

not really required of what you decided in your verdict to make

a decision on these two questions in any certain way and that

you should consider your answers to these questions based upon

everything that you have heard, including the information that

was provided since the return of the verdict.

         You did then late yesterday afternoon send to me a

communication that says that you are not, after all of these

deliberations, unanimous in your view as to whether all that

you have heard satisfied you beyond a reasonable doubt that the

Government met its burden of proof with respect to these

necessary specific intentions.  And, you know, that was shortly

before the ordinary time for recess.  And I told you then when

I recessed, I'd talk to you some more about it this morning.

And that's where we are.

         Now, you used a phrase through your foreperson that if

you are required to be unanimous, yes or no, on the two

questions that are these really principal questions that have

to be decided by intention that you are "hung."  And, of

course, I'm sure you've heard of a hung jury; and that's the

phraseology, which means a jury that can't decide.

         Now, this is, you know, different from a hung jury in

the sense that it is used, which means a jury that is not able

to decide whether the evidence proves the charges.  You weren't

a hung jury there.  You did decide that, and you returned a

verdict.  And a hung jury in that sense results in what is

called a "mistrial" and requires another trial, the selection

of another jury, presentation of the evidence with respect to

the charges, and so forth.  So it sort of wipes away the trial

and requires a new trial.

         Well, it's different when a jury is in this position,

as you are, and that is a sentencing jury.  You have disposed

of the charges.  You have made a final decision with respect to

the charges.  That was what your verdict was on December 23.

         Here, now, when these questions are put to you, well,

what sentence should be imposed, using these three options,

when you are not all convinced and all in agreement that the

information and evidence presented to you satisfies you beyond

a reasonable doubt that Terry Nichols acted with either or both

of these two intentions, that, itself, a decision.  It is

really the jury's choice of the third option, which is

sentencing by the Court.

         Now, when that happens, the question then becomes:

Well, should we take that as a final decision from the jury?

And the answer to that depends upon assessing the jury's

deliberations:  Has the jury had an adequate, reasonable amount

of time to talk it over and to make the decision after

exchanging views; and, of course, an assessment of has the jury

used that time and worked at it.

         Well, I've discussed that aspect of the case with the

lawyers in the case, and Mr. Nichols had an opportunity to

participate in that as well.  And we have decided -- I have

decided after discussion with them but without real

disagreement here that in assessing your work that you have had

an adequate opportunity to discuss it, to deliberate, and to

decide.  And we know that you've worked at it.  There is no

question about that in anybody's mind.

         So having determined that there has been what is a

reasonable and adequate opportunity to decide, I am not going

to require you to go further.  I am, in short, going to

discharge you.

         But I want to reemphasize that in doing so, I'm

accepting that being unable to get unanimity that there has

been proof beyond a reasonable doubt on these necessary

specific intentions that amounts to your decision that there is

no unanimity on that; and therefore, you've decided that the

sentencing in this case should be done by the Court under

sentencing guidelines and applicable law.  And that is what I

will do.

         Now, what I want to say to all 12 of you and to

everybody in this courtroom and to the public as a whole:  You

have done your job in this case.  I do not want you to feel

that you have in any way failed to meet your responsibilities,

because you have.  And you know, the result here will be

subject to comment by many, as indeed your verdict of

December 23 will be and has been.  There will be some who will

criticize it and this outcome.  There will be some who will

praise it.  There will be some who understand it, and there

will be some who do not understand it; and there will be others

who even though they do understand it will mischaracterize it.

         You know that you are answerable to no one for your

decisions.  You have no obligation to explain your decisions to

anyone -- not to me, not to the lawyers, or not -- nor to

anyone else.

         You may not impeach your verdict; that is, none of you

can walk away from what you've decided.  And it can't be

exchanged.  This is a final decision, both with respect to your

verdict on the charges and with respect to the -- what amounts

to the decision that the specific intent has not been proved to

the satisfaction of all 12 of you beyond a reasonable doubt.

Therefore, there can be no death sentence.

         You came together here.  You were selected through a

very careful selection process to be the jury to decide in this

case.  You were called away from your personal lives, from your

work.  You made financial sacrifices in addition to the time

that you have spent with us on this case.  You were in this

courtroom at a difficult time, because there was during that

time, as normally, a holiday spirit in the air, a lot of people

off from work enjoying family and friends and traditional

holiday activities.  And you were called away from that.  You

met your obligations every day in sometimes difficult weather,

always were here on time.  You paid careful attention

throughout the trial.  You served.

         You know, during the jury selection process where --

and, of course, that was individual with each of you -- there

were times when I referred to this as somewhat analogous to

military service, a call to your country's need; come and

serve.  And each one of you did that.  Each one of you answered

the call.

         And I believe now that you're entitled to know that

your service is recognized as that.  And you have served

honorably and you have served well, and you should take pride

in your service.  And as I have said before, you should not

consider that this end result is in any way a dereliction of

your duty or failure of your answering the call.

         Members of the jury, I am now going to discharge you

from this service.  And of course, that means that you are no

longer subject to the orders of the Court in this matter.  You

return to your lives as they were before, although I'm sure

they will never -- you will never forget this.  And your lives,

I'm sure, have been affected by the things that you have seen

here, heard here, and your participation with the other jurors.

         I will ask you to remain just a few minutes after the

Court recesses, because I want to talk briefly with you on a

more personal level and more private level.

         But with this ruling that I have made, you are now

discharged as the jury in this case.  You're excused from the

courtroom.

    (Jury out at 9:05 a.m.)

         THE COURT:  Well, this results in the jury's verdict

now becoming a final verdict for purposes of the application of

the Federal Rules of Criminal Procedure dealing with post-

verdict motions.

         Mr. Tigar . . .

         MR. TIGAR:  Yes, your Honor.  In that regard, we do

move -- renew our motion under Federal Rule of Criminal

Procedure 29, we move under Rule 33, and we move under Rule 37.

And we would ask for February 9, 1988 (sic) for the filing of

the written version of those motions, it being clear that the

motions are made within the time set by the Federal Rules of

Criminal Procedure and the Court having the authority to extend

the time, provided the motions are timely made.

         THE COURT:  What date did you suggest?

         MR. TIGAR:  I asked for February 9, 1998, your Honor,

which is a Monday.

         THE COURT:  Any objection to that extension of time?

         MR. MACKEY:  That's agreeable, your Honor.

         THE COURT:  All right.  That order is entered.  The

time is granted to February 9.

         I do intend, however, to proceed under Rule 32 and to

proceed as I told the jury with court sentencing, utilizing the

sentencing guidelines provided by the sentencing commission.

And, of course, that requires the preparation of a presentence

report.  And I've asked our chief probation officer for the

court, who is present, Richard Miklic, to himself prepare the

presentence report for this case.

         Now, there has been a procedure followed in this

district for presentence reports, but I'm going to modify it

with respect to it as to that part of the report that deals

with victim impact statements, and so forth.  I believe that

that's been satisfied.  I've been in the courtroom during the

testimony here.  But, of course, all of this is subject to

interpretation by counsel and their views of it.

         I think that rather than the usual procedure that we

followed here, which I think is probably common to most

districts, where the probation officer prepares an

interpretation of the guidelines and the application to the

facts of the case -- of course, the probation officer here,

Chief Miklic, was not present during the trial.  We have the

transcripts.  But rather than approach it in that way, it seems

to me more appropriate for counsel to submit what amounts to

statements concerning the application of the guidelines.  And

there may well be, I suspect, disagreements about it.

         Perhaps we should set times for the filing of those

applications.  What do you think?

         MR. TIGAR:  Yes, your Honor.  May I consult with my

colleagues for a moment?

         THE COURT:  Well, of course.

    (Discussion off the record among counsel.)

         MR. TIGAR:  Your Honor, in discussing with

Mr. Thurschwell, we intend to present in addition to the legal

analysis some other materials.  I don't know what schedule the

Court has in mind for that.  If it's all to be done

simultaneously, your Honor, we would ask for the 23d of

February.

         THE COURT:  Okay.  Well, I'm not sure.  You know,

ultimately, there will be a sentence hearing, of course.

         MR. TIGAR:  Yes, your Honor.

         THE COURT:  And the sentence hearing will undoubtedly

consist of the legal issues that are involved, perhaps some

factual questions that may be involved in the application of

the guideline, will also involve the right of allocution, the

opportunity for exercising the right of allocution by the

defendant personally, and, of course, statements from counsel.

So it can be, you know, a hearing that could be in multiple

parts.  I don't know.  It may be something where we want to do

did it in segments, even, and consider the legal issues

separate than from whatever may be necessary for the other

aspects of it.

         But certainly the first part of it should be, I think,

the filing of your views, respective views on how the

guidelines may be applied.

         MR. TIGAR:  If that's the -- if it's limited to that,

your Honor, we could do that on the 9th.

         MR. MACKEY:  As could the United States, your Honor.

         THE COURT:  Yes.  Well, let's call, then, for the

simultaneous filing, February 9.  And then I will not set a

date for a sentencing hearing today, because I think that all

of us need to sort of take time to think about that; and the

nature of the hearing may depend upon what you submit and my

reaction to it on these statements of your positions on

application.

         MR. TIGAR:  Yes.  In addition, your Honor, there are

some other matters as to which there may be evidentiary

hearings necessary that have been the subject of motions.

         THE COURT:  Well, I think the best we can do is to say

the next step is these filings on February 9.

         MR. TIGAR:  Yes, your Honor.  We thank you, your

Honor.

         THE COURT:  All right.

         Counsel have anything else --

         MR. RYAN:  Can we have just a moment, your Honor?

         THE COURT:  -- to be taken up now?

    (Discussion off the record among counsel.)

         MR. MACKEY:  Your Honor, for purposes of the record,

we'd like to incorporate the position we took earlier at the

bench conference.

         THE COURT:  Oh, yes.  That's preserved.

         MR. MACKEY:  Beyond that, we have nothing else.  Thank

you, Judge.

         THE COURT:  So in this matter, we'll proceed and

without setting a new date for open court until I have a chance

to review what you file.

         And the Court will now be in recess.

    (Recess at 9:12 a.m.)

                    REPORTER'S CERTIFICATE

    I certify that the foregoing is a correct transcript from

the record of proceedings in the above-entitled matter.  Dated

at Denver, Colorado, this 7th day of January, 1998.

 


                                 _______________________________

                                         Paul Zuckerman