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RENEWED MOTION OF TERRY LYNN NICHOLS TO STRIKE THE NOTICE OF INTENTION TO SEEK THE DEATH PENALTY |
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Richard P. Matsch No. 96-CR-68-M UNITED STATES OF AMERICA, Plaintiff, v. TERRY LYNN NICHOLS, Defendant. ______________________________________________________________________________ RENEWED MOTION OF TERRY LYNN NICHOLS TO STRIKE THE NOTICE OF INTENTION TO SEEK THE DEATH PENALTY ______________________________________________________________________________ Terry Lynn Nichols, by counsel, respectfully moves to strike the Notice of Intention to Seek the Death Penalty against him for the reasons that follow.
Mr. Nichols renews his prior motions and objections regarding the Notice of Intention to Seek the Death Penalty, and incorporates by reference the points and arguments made therein. See D.E. 639, 776, 801, 987, 1195, 4847, 4946 (all incorporated by reference).
II. BECAUSE THE GOVERNMENT HAS MODIFIED THE ORIGINAL DEATH PENALTY NOTICE SINCE IT WAS APPROVED BY THE ATTORNEY GENERAL WITHOUT SEEKING HER CONTINUED APPROVAL PURSUANT TO THE DEATH PENALTY PROTOCOL, THE MODIFIED NOTICE IS INVALID The original Notice of Intention to Seek the Death Penalty against Mr. Nichols listed as a statutory aggravator the allegation that "various victims were particularly vulnerable due to old age, youth and infirmity." It also alleged in another statutory aggravator that "deaths or injuries resulting in deaths occurred during the commission of an offense under . . . 18 U.S.C. § 844(f) . . . and 18 U.S.C. § 2332a . . . ." The Court struck the identical allegations from the McVeigh Death Penalty Notice prior to the penalty phase in that case. 6/3/97 Tr. 11697-8 ("particularly vulnerable victims"); United States v. McVeigh, 944 F.Supp. 1478, 1489-90 (D.Colo. 1996) (striking references to §§ 844(f) and 2332a from "deaths occurring in commission of offense" aggravator). The government has informed us that it will not seek to rely in a penalty phase in this case on either the "particularly vulnerable victim" aggravator or the § 844(f)/§ 2332a component of the "deaths occurring in commission of offense" aggravator. See Letter from Larry Mackey to Michael E. Tigar dated July 7, 1997 (attached as Exhibit 1). While we laud the government’s decision to follow the Eighth Amendment to that extent, this change in the Notice should not become effective until the statutory and administrative prerequisites for a valid Notice have been complied with. Section 3593(a) states that "[t]he court may permit the attorney for the government to amend the notice upon a showing of good cause." We agree that there is "good cause" for the proposed changes in the Notice. The statute contemplates, however, that the government attorney issue a new notice — "sign and file with the court, and serve on the defendant, a notice," in the language of § 3593(a). This requirement has not been met. Furthermore, there are the administrative requirements of the Attorney General’s Death Penalty Protocol, USAM §§ 9-10.000 et seq. We acknowledge the Tenth Circuit’s recent decision in Nichols v. Reno, 124 F.3d 1376 (10th Cir. 1997). Nevertheless, there is a significant difference between a Notice that alleges that the crime resulted in the deaths of vulnerable victims and one that does not, and this difference might be sufficient — especially in this case, where there is extensive mitigating evidence — to cause the Attorney General to reconsider her decision. Accordingly, the Death Penalty Notice should not be effective unless and until the Attorney General reviews and approves it according to the mandatory procedures set forth in her own Death Penalty Protocol.
We previously moved to strike the federal death penalty statute as applied to Mr. Nichols because it permitted the jury to sentence him to death after finding as fact that he was a "minor participant" in the crime. D.E. 4847. As we explained in that motion, a death verdict combined with a "minor participation" finding would violate the requirement of Enmund v. Florida, 458 U.S. 782 (1982) and Tison v. Arizona, 481 U.S. 137 (1987) that the capital defendant have had both "major participation in the felony committed" and a mental state amounting to "reckless indifference to human life." Id, at 158. The Court rejected this challenge, ruling that the major participation requirement could be dealt with through appropriate jury instructions. 8/28/97 Tr. 16 (oral ruling on motion). The Court also recognized, however, that the factual sufficiency of the evidence with respect to the major participation requirement was an independent issue that could be raised at the close of the evidence. Id. No rational juror could conclude on the basis of the government’s evidence that Mr. Nichols was a major participant in the bombing of the Murrah Building. It is relevant for these purposes that the government’s most significant allegation against Mr. Nichols, the one that places him in closest proximity to the bombing both in time and in demonstrable intention, was its claim that he helped Mr. McVeigh mix the bomb at Geary Lake on the day before Mr. McVeigh delivered the bomb to Oklahoma City. The Court is aware of the evidence related to this particular allegation, including the government’s rebuttal evidence, and we will not review it here. Suffice it to say that, even without regard to Mr. Nichols’ contrary evidence of other Ryder trucks at Geary Lake (including Ryder trucks accompanied by other trucks laden with bags of ammonium nitrate), the government’s case for Mr. Nichols’ presence with Mr. McVeigh that Tuesday morning is based on (1) its suspicion that Mr. Nichols was lying about his whereabouts when he described his activities to the FBI (something the government was unable to prove at trial) and (2) an alleged sighting of a "dark" colored pickup truck next to a Ryder truck that was proved to be unreliable by the government’s own rebuttal witness. Thus, the government simply failed to prove by any standard of proof that Mr. Nichols was involved in any way with the construction of the bomb itself. The significance of this failure lies in the fact that proximity to the commission of the crime itself — exemplified by actual presence at the scene of the crime — is a sine qua non for findings of Tison "major participation." Indeed, so important is presence at the scene that the Supreme Court has held that a state’s hearsay rules must give way where hearsay evidence of "absence from the scene" is offered at a capital defendant’s penalty hearing. Green v. Georgia, 442 U.S. 95, 97 (1979) (per curiam). Among the many examples of appellate decisions in which presence or absence at the scene is cited as a key factor in finding Tison satisfied are Lesko v. Lehman, 925 F.2d 1527, 1551 (3d Cir.), cert. denied, 502 U.S. 898 (1991) (emphasizing presence at scene in finding major participation), and White v. Wainwright, 809 F.2d 1478, 1484 (11th Cir.), cert. denied, 483 U.S. 1044 (1987) (continued presence at scene of crime despite objections to killing sufficient to satisfy Enmund). Enmund and Tison themselves both emphasized the importance of the defendants’ presence (or in Enmund’s case, absence) at the scene of the killing in reaching their holdings, and both cited the same statistic demonstrating the tiny fraction of capital convictions that involve defendants who were absent from the scene. Enmund, 458 U.S. at 795 (noting that of 796 prisoners on death row in October 1981, "only 16 were not physically present when the fatal assault was committed"); Tison, 481 U.S. at 148 (same). The notion that proximity to the commission of the crime is an accurate measure of a defendant’s culpability is hardly a novelty to the criminal law. The well-established distinction between criminal attempt and (noncriminal) "mere preparation," for example, has long been predicated on the idea that the closer one comes to actually committing a crime, the greater one’s culpability for the increased likelihood of the resulting harm or, alternatively, that the willingness to take "substantial steps" in the direction of actual commission evinces the firmness and specificity of culpable intention required for punishment. See generally Drafters’ Commentary to Model Penal Code § 5.01. Similarly, evidence that an accomplice accompanied the principal to the scene of an intentional killing supports an inference of a comparable intention to kill on the part of the accomplice far more strongly than does evidence which merely shows some aid before the fact (e.g., handing the principal the gun used in the killing). In the latter case, inferring the culpable resolve to take human life is a speculative leap that requires more evidentiary support than proof of the mere act of aid itself. Here absence from the scene is only one of a large number of undisputed facts that are totally inconsistent with the idea that Mr. Nichols was a "major participant" in Mr. McVeigh’s scheme in the months leading up to the bombing. Given the totality of the evidence, including the unrebutted testimony of witnesses who saw another person, not Mr. Nichols, with Mr. McVeigh in the days leading up to the bombing and the day of the bombing itself, a rational juror could not conclude that Mr. Nichols was a "major participant" in the crime. The Death Penalty Notice should therefore be stricken.
Conclusion For the foregoing reasons, Terry Lynn Nichols respectfully requests that the Notice of Intention to Seek the Death Penalty against him be stricken. Respectfully submitted, Ronald G. Woods Adam Thurschwell (303) 831-4059 Counsel for Terry Lynn Nichols I certify that a copy of the foregoing Renewed Motion of Terry Lynn Nichols to Strike the Death Penalty Notice was served on Larry Mackey, Special Attorney to the United States Attorney, by hand delivery on December 22, 1997. _____________________________ Adam Thurschwell |