MOTION OF TERRY LYNN NICHOLS TO PRECLUDE A SENTENCING HEARING PURSUANT TO 18 U.S.C. §§ 3591 ET SEQ.ON GROUNDS OF COLLATERAL ESTOPPEL

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA,

Plaintiff,

v.

TERRY LYNN NICHOLS,

Defendant.

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______________________________________________________________________________

Terry Lynn Nichols respectfully moves the Court to preclude the sentencing hearing under 18 U.S.C. §§ 3591 et seq., on the grounds that a constitutional and statutory prerequisite of such a hearing — the threshold finding of intent to kill — has already necessarily been decided against the government by the jury in the guilt/innocence phase.

In the alternative, the Court should bifurcate the sentencing phase and require the jury to make the unanimous intent finding required by 18 U.S.C. § 3591(a)(2) before allowing evidence of statutory and nonstatutory aggravating factors to be introduced.

I. THE GOVERNMENT IS ESTOPPED FROM PROVING THE § 3591(a)(2)/TISON INTENT THRESHOLD

Before the sentencing hearing described in § 3593(c) can proceed, the jury is required by the Federal Death Penalty Act to find unanimously that the government has proved beyond a reasonable doubt that the defendant possessed one of the four intent factors listed in § 3591(a)(2) at the time the act that caused the deaths occurred. See § 3591(a)(2); see also sentencing phase Jury Instructions in United States v. McVeigh, at 3-4 (instructing that unless one of the four factors is proved beyond a reasonable doubt, the jury must conclude its deliberations without proceeding to consider the statutory aggravators or weighing process). A threshold finding of intent to kill is also a constitutional requirement under the Eighth Amendment — specifically, a finding of "reckless indifference to human life" or higher. Tison v. Arizona, 481 U.S. 137, 158 (1987).

The constitutional Tison threshold roughly corresponds to § 3591(a)(2)(D), which permits the sentencing phase to proceed if the government proves beyond a reasonable doubt that the defendant "intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and the victim died as a direct result of the act." Thus, both Tison and § 3591(a)(2) set as the minimum baseline for death eligibility what is sometimes known as implied malice, the least culpable common law mens rea distinguishing murder (homicide committed with malice) from the lesser homicides.

The jury has already conclusively determined that Mr. Nichols did not act with malice, however. That is demonstrated by its verdicts on the homicide charges. By finding Mr. Nichols not guilty of first and second-degree murder, the jury necessarily found that Mr. Nichols lacked the one mental element that distinguishes manslaughter from murder — malice. Compare Jury Instructions in United States v. Nichols, at 19 (defining manslaughter as the "unlawful killing of a human being without malice") with id. at 15, 18 (requiring findings of "malice aforethought" for conviction of either first or second-degree murder); see also id. at 16 (defining "malice aforethought" as the intent to kill, and explaining that this may be satisfied by a finding of a "callous and wanton disregard for human life" (i.e., implied malice)).

Because the jury specifically found against it on the mens rea issue in the guilt phase of trial, the government is estopped from re-litigating it in the penalty phase. This conclusion follows from two lines of the Supreme Court’s Double Jeopardy jurisprudence. First, in Bullington v. Missouri, 451 U.S. 430 (1981), the Court decided that unlike other sentencing proceedings, in which Double Jeopardy concerns were not implicated, a formal capital sentencing hearing was sufficiently similar to a guilt/innocence trial that the Double Jeopardy Clause could have preclusive effect. Like the guilt/innocence proceeding, the Missouri capital hearing involved a trial-like structure — opening and closing statements, formal taking of testimony and cross-examination of witnesses, etc. — and specific findings that the government was required to prove beyond a reasonable doubt. Id., at 438 & n.10. The Court held that requiring the government to "prove its case" in this formal manner (totally unlike the unstructured sentencing findings and continuum of possible sentences involved in noncapital judicial sentencing) combined with the "‘embarrassment, expense and ordeal’ and ‘anxiety and insecurity’ faced by a defendant at the penalty phase" implicated fundamental values sufficiently to merit the protection of the Double Jeopardy Clause. Id., at 444, 445.

Second, in Ashe v. Swenson, 397 U.S. 436 (1970), the Supreme Court held that the Double Jeopardy Clause included the protections of the collateral estoppel doctrine among its components. Thus, where "an issue of ultimate fact has once been determined by a final and valid judgment" against the government, id., at 443, to force the defendant to re-litigate that same issue under another threat of jeopardy would be to make him "‘run the gantlet’ a second time" in a manner that the Double Jeopardy Clause was intended to prevent. Id., at 446 (quoting Green v. United States, 355 U.S. 184, 190 (1957)). The Court emphasized, moreover, that "the rule of collateral estoppel is not to be applied with the hypertechnical and archaic approach of a 19^th century pleading book," id., at 444, but to take into consideration all of the circumstances in order to decide whether "a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration." Id. (cite omitted).

Bullington and Ashe control here. The sentencing hearing established by the Federal Death Penalty Act is identical in all material respects to the sentencing hearing found to carry Double Jeopardy protections in Bullington, including a requirement that the government prove one of the § 3591(a)(2) intents beyond a reasonable doubt before proceeding. However, as noted above, there is only one explanation for the jury’s verdicts on the murder counts and lesser included offenses, and that is that the jury specifically rejected the government’s attempt to prove that Mr. Nichols acted with the required intent. Because that "ultimate fact" was conclusively determined against the government, under Ashe it may not re-litigate that fact in the sentencing hearing, and is therefore barred from proceeding.

The few Courts of Appeals that have considered the preclusive effect of a guilt phase finding on a subsequent sentencing hearing have reached precisely this conclusion. In Delap v. Dugger, 890 F.2d 285, 312-18 (11^th Cir. 1989), cert. denied, 496 U.S. 929 (1990), for example, the Eleventh Circuit held that an acquittal of a defendant of felony murder in his first trial barred the government from attempting to use the same felony murder allegation as an aggravator at the sentencing phase after he was convicted at his second trial. Id., at 312-319 (discussing Bullington and Ashe); see also Tucker v. Kemp, 762 F.2d 1480, 1487 (11^th Cir.) (en banc), vacated on other grounds, 474 U.S. 1001 (1985) ("we note that Ashe may very probably be interpreted to block re-litigation of a factual issue at the sentencing phase of a capital trial following an acquittal on the same evidence at the guilt phase"); id., at 1487 n.11 (citing other cases). Other courts have held that sentencing phase findings may bind the government in the guilt/innocence phase in a subsequent retrial, see e.g. Santamaria v. Horsley, 110 F.3d 1352 (9^th Cir. 1997); Pettaway v. Plummer, 943 F.2d 1041 (9^th Cir. 1991), and that sentencing phase findings in an initial trial may bind the government in a retrial’s sentencing phase. Durosko v. Lewis, 882 F.2d 357, 359 (9^th Cir. 1989); Briggs v. Procunier, 764 F.2d 368, 371 (5^th Cir. 1985).

Accordingly, since the government is estopped from litigating the § 3591(a)(2)/Tison threshold in the sentencing phase, as a matter of law it cannot meet its burden of proof and it should not be permitted to go forward with the hearing.

Finally, we note that because this issue is grounded in the Double Jeopardy Clause, it would be totally inappropriate to hold this motion in abeyance pending the outcome of the jury’s sentencing decision. The Double Jeopardy Clause guards against the "‘embarrassment, expense and ordeal’ and ‘anxiety and insecurity’" of having to go through the criminal process itself, without regard to the ultimate outcome of the proceeding. The fact that the jury might — or is even likely to — find that Mr. Nichols should not be punished by death or life without the possibility of release is not a reason to put off granting this motion. The embarrassment, ordeal and anxiety of a death sentencing hearing are very real, and the unnecessary disclosure of mitigating evidence — some of it in the form of previously undisclosed statements by Mr. Nichols — is another harm that should be weighed in the Double Jeopardy balance, particularly in light of the likelihood that Mr. Nichols will soon be facing another 160 capital charges in the State of Oklahoma’s courts. In sum, regardless of the likelihood of his success, it would be wrong as a matter of the Double Jeopardy Clause and fundamental fairness to force Mr. Nichols to undergo a sentencing process that the government has already legally lost.

II. IN THE ALTERNATIVE, THE COURT SHOULD HAVE THE JURY ANSWER SPECIAL INTERROGATORIES ABOUT THE § 3591(a)(2)/TISON FINDINGS BEFORE ADMITTING EVIDENCE OF STATUTORY AND NONSTATUTORY AGGRAVATORS

In the alternative, if the Court declines to hold that the government is precluded from asking the jury to find that the § 3591(a)(2)/Tison findings are satisfied, we request that this question be put to the jury in a separate verdict form that it will answer prior to hearing further evidence relating to the aggravators noticed by the government. It is clear that the government has no further evidence of Mr. Nichols’ alleged intent to kill to offer. Furthermore, this finding is a threshold for further proceedings; to the extent that the jury answers in the negative, no further testimony or evidence will make any difference. Finally, there is a significant danger that other evidence which is arguably relevant to the noticed statutory and nonstatutory aggravators but plainly irrelevant to Mr. Nichols’ intent — in particular, the victim impact evidence — may prejudice the intent inquiry.

Instructing the jury on the intent requirement and having them answer the special interrogatory on intent at the outset of the hearing is therefore likely to obviate the need for further evidence, and will certainly result in a more reliable finding that is less likely to be prejudiced by immaterial and inflammatory evidence of the aggravating factors. We therefore request as alternative relief that these instructions and interrogatories be given at the outset of the hearing, prior to the introduction of evidence of aggravating factors.

For the foregoing reasons, Terry Lynn Nichols respectfully requests that the government be precluded from going forward with the sentencing hearing under §§ 3591 et seq.

Respectfully submitted,
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Michael E. Tigar
150 East Tenth
Denver, CO 80203

Ronald G. Woods
5300 Memorial, Suite 1000
Houston, TX 77007

Adam Thurschwell
N. Reid Neureiter
Jane B. Tigar
1120 Lincoln, Suite 1308
Denver, CO 80203

(303) 831-4059
Fax (303) 831-6232

Counsel for Terry Lynn Nichols
(Appointed by the Court)

I certify that a copy of the foregoing pleading was served on Larry Mackey, Special Attorney to the United States Attorney, by telefacsimile on December 24, 1997.

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Adam Thurschwell