MOTION OF TERRY LYNN NICHOLS TO STRIKE THE NOTICE OF INTENTION TO SEEK THE DEATH PENALTY AND BRIEF IN SUPPORT

UNITED STATES OF AMERICA,

Plaintiff,

v.

TERRY LYNN NICHOLS,

Defendant.

______________________________________________________________________________

______________________________________________________________________________

Defendant Terry Lynn Nichols, by counsel, respectfully moves the Court to strike the Notice of Intention to Seek the Death Penalty issued against him pursant to 18 U.S.C. § 3593(a). The grounds of this motion are that the Federal Death Penalty Act of 1994, 18 U.S.C. §§ 3591 et seq., is unconstitutional as applied to a person charged, as is Mr. Nichols, solely as an accomplice before the fact or a member of a conspiracy to commit a capital crime and not as the principal who actually carried out the crime.

The Eighth Amendment forbids execution of an accomplice-defendant unless her culpability is shown to meet two minimum requirements: "major participation in the felony committed" and "reckless indifference to human life." Tison v. Arizona, 481 U.S. 137, 158 (1987) (emphasis added). Yet, under the federal death sentencing scheme, a jury could find that Mr. Nichols was a "minor participant" in the capital crime and still sentence him to death, regardless of its finding with respect to intent. See 18 U.S.C. § 3592(a)(3) ("minor participation" is a statutory mitigator); § 3593(e) (permitting the jury to return a death sentence regardless of its findings with respect to any particular mitigator).

Accordingly, Mr. Nichols requests that the Court hold that the Federal Death Penalty Act is unconstitutional as applied to him and strike the death penalty notice. We ask that the Court take this action now, prior to trial, because of the important collateral consequences of being capitally charged, which include (apart from heightened anxiety and stress) the reduced availability of bail and, most importantly, the government’s right to "death qualify" the guilt phase jury in a capital case.

THE DEATH PENALTY ACT OF 1994 IS UNCONSTITUTIONAL AS APPLIED TO A CAPITAL DEFENDANT CHARGED SOLELY AS AN ACCOMPLICE OR CONSPIRATOR AND NOT AS A PRINCIPAL

One of the rights protected by the Eighth Amendment’s prohibition against cruel and unusual punishment is a convicted defendant’s right not to be subjected to a punishment that is disproportionate to her actual culpability. The Supreme Court has significantly limited the applicability of the "proportionality" requirement in the area of noncapital sentencing. Harmelin v. Michigan, 501 U.S. 957 (1991). The principle remains a vital component, however, of the Court’s capital Eighth Amendment jurisprudence. A capital defendant’s individual culpability must meet a certain threshold to make the defendant eligible for the extreme punishment of death. Coker v. Georgia, 433 U.S. 584, 592 (1977) (death disproportionate to the crime of rape); Enmund v. Florida, 458 U.S. 782, 800 (1982) (death disproportionate where defendant did not commit the homicide, was not present when the homicide took place and did not participate in a plan or scheme to murder). The constitutional flaw in the Federal Death Penalty Act is that it allows defendants like Mr. Nichols — those whom the government concedes were at most accomplices before the fact or members of a conspiracy to commit the crime — whose culpability does not meet the Eighth Amendment threshold to be executed.

Coker established that death is disproportionate to the crime of rape, holding, in effect, that only homicides are constitutionally subject to capital punishment. 433 U.S. at 598-9. Enmund refined the types of homicide for which death is proportionate. Enmund was convicted of capital felony murder for his role in an armed robbery in which the intended robbery victims were killed. The evidence established only that he was the getaway driver, waiting "a few hundred feet away . . . to help the robbers escape with the [victims’] money," 458 U.S. at 786 (quoting findings of Florida Supreme Court), and failed to establish any criminal intent beyond the intention to assist in the robbery. Although the Court cited statistics showing that only 16 of the 796 convicted capital defendants then awaiting execution had, like Mr. Nichols, not been physically present at the commission of the crime, id. at 795, it expressly declined to address the "degree of Enmund’s participation in the killings" as a basis for its decision. Id. at 787 n.4. Instead, focusing on mens rea as the traditional measure of individual culpability, id. at 800, the Court held that Enmund could not be executed absent proof that he "took life, attempted to take life, [] or intended to take life." Id. at 787.

Tison v. Arizona, 481 U.S. 137 (1987), further refined and explained the holding in Enmund. Enmund, Justice O’Connor explained, covered part but not all of the spectrum of homicide defendants’ possible culpability:

Enmund explicitly dealt with two distinct subsets of all felony murders in assessing whether Enmund’s sentence was disproportional under the Eighth Amendment. At one pole was Enmund himself: the minor actor in an armed robbery, not on the scene, who neither intended to kill nor was found to have had any culpable mental state. . . . The Court held that capital punishment was disproportional in these cases. Enmund also clearly dealt with the other polar case: the felony murderer who actually killed, attempted to kill, or intended to kill. The Court clearly held that [those mental states were sufficiently culpable to warrant capital punishment]. Tison, 481 U.S. at 149-50.

The Tison brothers’ case fell between these poles. Along with others, they had planned and participated in a prison break-out that freed their father and another prisoner. While escaping through the desert, the Tisons’ car broke down and they helped flag down and commandeer another vehicle. Subsequently, while they watched, their father and the other prison escapee shot and killed all four members of the family that had stopped to help them. Id. at 139-41.

The Court agreed that the Tisons lacked the intent to kill. Id. at 150. It also held, however, that the Enmund "intent to kill" requirement was not dispositive. Noting that the majority of state capital sentencing schemes permitted the death sentence upon a finding that the defendant either had a mental state equivalent to "recklessness or extreme indifference to human life" at the time of the killing or was a "major actor in a felony in which he knew death was highly likely to occur," Tison, 481 U.S. at 153-54, the Court held that "major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement." Id. at 158. Because each Tison "was actively involved in every element of the kidnaping-robbery and was physically present during the entire sequence of criminal activity culminating in the murder of the Lyons family," the Court found the "major participation" requirement satisfied and remanded to the Arizona courts for determination of whether their mens rea amounted to reckless indifference to human life. Id.

"[M]ajor participation in the felony committed" and "reckless indifference to human life" (essentially implied malice, the least culpable common law mens rea distinguishing murder from lesser homicides) thus together constitute the Eighth Amendment threshold for imposing the death penalty. Id.; see also e.g. Reeves v. Hopkins, 102 F.3d 977, 984 (8^th Cir. 1996) ("Before a state can impose the death penalty, there must be a showing of both major participation in the killing and reckless indifference to human life"); Hatch v. Oklahoma, 58 F.3d 1447, 1470 (10^th Cir. 1995), cert. denied, 116 S.Ct. 1881 (1996).

Congress’ attempt to incorporate the Enmund/Tison requirement into the Federal Death Penalty Act of 1994 is codified at 18 U.S.C. § 3591(a)(2). That subsection sets forth four intent elements, at least one of which must be proved beyond a reasonable doubt at the penalty hearing before a defendant can be sentenced to death. Section 3591(a)(2) requires that the defendant:

(A) intentionally killed the victim;

(B) intentionally inflicted serious bodily injury that resulted in the death of the victim;

(C) intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a direct result of the act; or

(D) 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.

No mention is made of the defendant’s degree of participation in this section.

By contrast, "minor participation" by the defendant in an offense committed by another is made a statutory mitigator by the Act. § 3592(b)(3). It is clear, however, that jurors are not required to assign any weight to this mitigator even if they find it as fact, and are authorized to return a sentence of death even if this mitigator is found. § 3593(e).

The combined effect of these provisions is that, in a case in which the defendant is accused only of being an accomplice before the fact to a capital crime, not present at the crime itself, the jury could find that the defendant was a "minor participant" with a mental state short of the intent to kill, and yet still return a death sentence. That is precisely the outcome that Enmund and Tison forbid.

This issue could not arise at the McVeigh trial because Mr. McVeigh was charged and proved to be the principal in the crime. But there is no dispute that Mr. Nichols was at home with his family, hundreds of miles away, when the explosion occurred at the Murrah Building. Thus, as applied to him the Federal Death Penalty Act’s sentencing provisions unconstitutionally permit Mr. Nichols to be executed on a showing less than the Eighth Amendment Tison threshold. The Notice to Seek the Death Penalty should accordingly be stricken.

For the foregoing reasons, we respectfully request that the Notice of Intention to Seek the Death Penalty against Mr. Nichols be stricken.

Respectfully submitted,
__________________________
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)