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)

Dated: September 5, 1996

Table of Authorities

Motion for Severance and Prayer for Relief

Statement of Relevant Facts

Introduction and Summary of Argument

I.Severance should be granted at the guilt phase

A. Mr. Nichols is entitled to severance as a matter of law under the traditional test of Rule 14

1. Mr. Nichols and Mr. McVeigh’s defenses are so antagonistic that they cannot receive a fair trial if tried together

a. Mr. Nichols must prove that Mr. McVeigh is guilty to make his own defense

b. The mutually antagonistic defenses will violate Mr. Nichols’ right to make a case for a lesser included offense

2. Severance should be granted because highly prejudicial evidence that is inadmissible against Mr. Nichols is likely to be admitted against Mr. McVeigh

a. Extremely prejudicial statements by Mr. McVeigh [UNDER SEAL] for violence that are inadmissible against Mr. Nichols will be introduced against Mr. McVeigh to prove his motive for the bombing

b. Other highly prejudicial evidence linking Mr. McVeigh [UNDER SEAL], none of which is admissible against Mr. Nichols, will be introduced against Mr. McVeigh

3. Severance should be granted because the horrendous nature of the crime, when combined with the very different levels of culpability alleged of Mr. Nichols and Mr. McVeigh and the evidence of Mr. Nichols’ unpopular but protected political views, creates a tremendous risk of jury confusion and guilt by mere association

4. Certain statements made by Mr. McVeigh claiming that [UNDER SEAL]

5. Trying Mr. Nichols separately from Mr. McVeigh poses minimal inconvenience to the government and no risk of "inconsistent verdicts"

6. Bruton v. United States bars the use of the parts of Mr. Nichols’ statement the government seeks to introduce at a joint trial, and, alternatively, there are irresolvable conflicts between Mr. Nichols’ right to introduce other parts of the statement and Mr. McVeigh’s confrontation rights

a. Bruton bars the use of the parts of Mr. Nichols’ statement the government seeks to introduce at a joint trial

b. Mr. Nichols is entitled to introduce other parts of the April 21, 1995 statement that inculpate Mr. McVeigh to assure that the meaning of the statements is not distorted and that exculpatory information in the statement is not kept from the jury

c. Mr. Nichols is constitutionally entitled to introduce other parts of the April 21, 1995 statement that inculpate Mr. McVeigh in order to demonstrate the circumstances in which the statement was given and the credibility of the statements to be introduced

7. To the extent severance is granted at the penalty phase, severance at the guilt phase is required as well

B. Special considerations unique to capital cases require heightened scrutiny of a capital defendant’s motion for severance

1. In a capital case, Rule 14 should be construed in pari materia with the Eighth Amendment's requirements of individualized consideration and heightened reliability in factfinding and verdicts

a. The Eighth Amendment requires "individualized consideration" and "heightened reliability of factfinding" in a capital case

b. The "individualized consideration" and "heightened reliability of factfinding" requirements apply to the guilt phase of a capital trial

2. Because of the different purposes of the guilt and penalty phases of a capital trial, there is a substantial risk that evidence and arguments legitimately introduced at the guilt phase may be prejudicial and inadmissible in the penalty phase, and the danger that the jury will consider this improper evidence and argument at the penalty phase cannot be cured by limiting instructions

3. Rule 14 should be construed strictly in favor of a capital defendant seeking severance

a. Joint trial of capital defendants seriously risks the ability of the jury to give each defendant individualized consideration and make reliable judgments about guilt or innocence, and limiting instructions cannot be relied upon to cure the risk of prejudice

(1) The presumption that limiting instructions cure the prejudice associated with joint trials has long been questioned even in noncapital cases

(2) Reliance on limiting instructions to cure potential prejudice frustrates the appellate review of capital verdicts required by 18 U.S.C. § 3595 and the Eighth Amendment

(3) State courts’ experience with capital trials supports heightened scrutiny of joint capital trials

b. The burden should be on the government to prove beyond a reasonable doubt that joint trial of a capital defendant will not "compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence"

c. In the alternative, even if the burden is not placed on the government, the Court should exercise its discretion with particular caution to ensure that a capital defendant's trial rights are not compromised and that the jury will be capable of making a truly reliable judgment about guilt or innocence in a joint trial

C. In the circumstances of this case a joint trial would violate Mr. Nichols’ Eighth Amendment rights

D. In the alternative, the Court should empanel dual juries to hear each defendant’s case individually

II. In the alternative, severance should be granted at the penalty phase

A. A joint penalty phase would violate Mr. Nichols' Eighth Amendment rights

1. The defendants' mutually antagonistic penalty phase defenses make a fair joint penalty phase an impossibility

2. The defendants' antagonistic defenses create a conflict between each defendant's due process rights to notice and a meaningful opportunity to rebut the information used to sentence him to death and the other’s right not to disclose his penalty phase strategy to their adversaries until trial

3. There is a serious risk that there will be a prejudicial conflict between Mr. Nichols' and Mr. McVeigh's theories of mitigation

4. There is an irresolvable conflict between the defendants' right to argue the § 3592(a)(3) and (a)(4) mitigation factors and their Eighth Amendment right to individualized consideration

5. Mr. McVeigh's Confrontation Clause rights will conflict with Mr. Nichols' Eighth Amendment rights at a joint penalty hearing

6. There is a serious risk that Mr. Nichols' and Mr. McVeigh's Fifth Amendment right against self-incrimination will conflict with the other defendant’s Eighth Amendment and allocution rights

7. The evidence linking Mr. McVeigh to [UNDER SEAL] will have an extremely prejudicial effect on Mr. Nichols' ability to receive a fair and individualized penalty hearing

B. Seriatim penalty phases before the same jury will not cure the constitutional flaws

Conclusion

FEDERAL CASES

Addington v. Texas, 441 U.S. 418 (1979) . . . . . . . . . 94

Ake v. Oklahoma, 470 U.S. 68 (1985) . . . . . . . . . . . 65

Ashe v. North Carolina, 586 F.2d 334 (4th

Cir. 1978), cert. denied, 441 U.S. 966 (1979) . . . . . . . . . . . . . . . . . . . . . . . . 119

Barclay v. Florida, 463 U.S. 939 (1983) . . . . . . . . . 37, 121

Beck v. Alabama, 447 U.S. 625 (1980) . . . . . . . . . . . passim

Berger v. United States, 295 U.S. 78 (1935) . . . . . . . 107

Boardman v. Estelle, 957 F.2d 1523 (9th

Cir.), cert. denied, 506 U.S. 904 (1992) . . . . . . . 119

Brooks v. Tennessee, 406 U.S. 605 (1972) . . . . . . . . . 118

Bruno v. United States, 308 U.S. 287 (1939) . . . . . . . 118

Bruton v. United States, 391 U.S. 123 (1968) . . . . . . . passim

Bute v. Illinois, 333 U.S. 640 (1948) . . . . . . . . . . 66

California v. Ramos, 463 U.S. 992 (1983) . . . . . . . . . 65, 102

Carter v. Kentucky, 450 U.S. 288 (1981) . . . . . . . . . 117, 118

Chambers v. Mississippi, 410 U.S. 284 (1973) . . . . . . . 29, 55

Clemons v. Mississippi, 494 U.S. 738 (1990) . . . . . . . 64, 85

Cooper v. Oklahoma, 116 S. Ct. 1373 (1996) . . . . . . . . 94

Crane v. Kentucky, 476 U.S. 683 (1986) . . . . . . . . . . 54, 55

Davis v. Alaska, 415 U.S. 308 (1974) . . . . . . . . . . . 54

Dawson v. Delaware, 503 U.S. 159 (1992) . . . . . . . . . 118, 120, 121

Dobbert v. Florida, 432 U.S. 282 (1977) . . . . . . . . . 86

Eddings v. Oklahoma, 455 U.S. 104 (1982) . . . . . . . . . 64, 107, 110

Estelle v. Smith, 451 U.S. 454 (1981) . . . . . . . . . . 117

Evitts v. Lucey, 469 U.S. 387 (1985) . . . . . . . . . . . 63

Ford v. Wainwright, 477 U.S. 399 (1986) . . . . . . . . . 65

Furman v. Georgia, 408 U.S. 238 (1972) . . . . . . . . . . 12, 66

Gideon v. Wainwright, 372 U.S. 335 (1963) . . . . . . . . 66

Gilmore v. Taylor, 508 U.S. 333 (1993) . . . . . . . . . . 59, 68

Gomez v. United States, 490 U.S. 858 (1989) . . . . . . . 61

Gray v. Mississippi, 481 U.S. 648 (1987) . . . . . . . . . 68

Green v. Georgia, 442 U.S. 95 (1979) . . . . . . . . . . . 106

Green v. United States, 355 U.S. 184 (1957) . . . . . . . 13

Green v. United States, 365 U.S. 301 (1961) . . . . . . . 119

Gregg v. Georgia, 428 U.S. 153 (1976) . . . . . . . . . . 86, 117

Gregory v. Ashcroft, 501 U.S. 452 (1991) . . . . . . . . . 61

Griffin v. California, 380 U.S. 609 (1965) . . . . . . . . 117

Hall v. Commissioner of Internal Revenue, 30

F.3d. 1304 (10th Cir. 1994) . . . . . . . . . . . . . . 61

Herrera v. Collins, 506 U.S. 390 (1993) . . . . . . . . . 65, 68

Hopkinson v. Shillinger, 781 F. Supp. 737

(D.Wyo. 1991), affd, 954 F.2d 609 (10th

Cir.), cert. denied, 502 U.S. 1067 (1992) . . . . . . . passim

Jurek v. Texas, 428 U.S. 262 (1976) . . . . . . . . . . . 86

Keeble v. United States, 412 U.S. 205 (1973) . . . . . . . 31

Kotteakos v. United States, 328 U.S. 750 (1946) . .  . . . . . . . . 14

Krulewitch v. United States, 336 U.S. 440 (1949) .. . . . . . . . . . . 77, 80

Lankford v. Idaho, 500 U.S. 110 (1991) . . . . . . . . . . 65, 107

Lockett v. Ohio, 438 U.S. 586 (1978). . . . . . . passim

Lockhart v. McCree, 476 U.S. 162 (1986) . . . . . . . . . 57, 71

Mallard v. United States District Court, 490

U.S. 296 (1989) . . . . . . . . . . . . . . . . . . . . 63

McCleskey v. Kemp, 481 U.S. 279 (1987) . . . . . . . . . . 102

Minnick v. Mississippi, 498 U.S. 146 (1990) . . . . . . . 117

Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892) .  . . . . . . . . . . . . 29

Nash v. United States, 54 F.2d 1006 (2d Cir.), cert. denied, 285 U.S. 556 (1932) . 81

National Treasury Employees Union v. Federal Labor Relations Authority, 986 F.2d 537 (D.C. Cir. 1993) . . . . . . . . . . . . . . . . . . . 60

New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) . . . . . . 89

Noto v. United States, 367 U.S. 290 (1961) . . . . . . . . 40

Parker v. Dugger, 498 U.S. 308 (1991) . . . . . . . . . . 64, 85, 87

Penry v. Lynaugh, 492 U.S. 302 (1989) . . . . . . . . . . 60

Powell v. Alabama, 287 U.S. 45 (1932) . . . . . . . . . . 62, 66

Proffitt v. Florida, 428 U.S. 242 (1976) . . . . . . . . . 86

Pulley v. Harris, 465 U.S. 37 (1984) . . . . . . . . . . . 85

Rankin v. Tennessee, 78 U.S. (11 Wall.) 380 (1871) .. . . . . 13

Reid v. Covert, 354 U.S. 1 (1957) . . . . . . . . . . . . 66

Richardson v. Marsh, 481 U.S. 200 (1987) . . . . . . . . . 48, 49, 50, 79

Sanford v. Robbins, 115 F.2d 435 (5th Cir. 1940), cert. denied, 312 U.S. 697 (1941) . . . . . . . 13

Scales v. United States, 367 U.S. 203 (1961) . . . . . . . 40

Schlup v. Delo, 115 S. Ct. 851 (1995) . . . . . . . . . . 66, 93

Skipper v. South Carolina, 476 U.S. 1 (1986) . . . . . . . 106

Spaziano v. Florida, 468 U.S. 447 (1984) . . . . . . . . . 67

Stilson v. United States, 250 U.S. 583 (1919). . . . . . . 96

Strickland v. Washington, 466 U.S. 668 (1984). . . . . . . 107

Stringer v. Black, 503 U.S. 222 (1992) . . . . . . . . . . 59, 63

Trujillo v. Sullivan, 815 F.2d 597 (10thCir.), cert. denied, 484 U.S. 929 (1987)  . 31

United States v. Ball, 163 U.S. 662 (1896) . . . . . . . . 96

United States v. Bolden, 1996 WL 447756 (8th Cir. 1996) 52

United States v. Butler, 494 F.2d 1246 (10thCir. 1974) . . . 79

United States v. Calabrese, 645 F.2d 1379(10th Cir. 1981), cert. denied, 451 U.S.1018 (1981) . . . . . . . . . . . . . . . . 32

United States v. Chatman, 994 F.2d 1510 (10thCir.), cert. denied, 114 S. Ct. 230 (1993). . . . . . . 50

United States v. Clark, 456 F.2d 1375 (10thCir. 1972) . . . . . . . . . . . 50

United States v. Crawford, 581 F.2d 489 (5thir. 1978) . . . . . . . . . 21, 32

United States v. Dirden, 38 F.3d. 1131 (10thCir. 1994) . . . . . . . . . . . . . . . . . . . 20

United States v. Edwards, 69 F.3d. 419 (10thCir. 1995), cert. denied, 116 S. Ct. 2497(1996) . . . . . . . . . . . . . . . . . . . . . . . . 18

United States v. Emmons, 24 F.3d. 1210 (10thCir. 1994) . . . . . . . . . . . . . . . . . 39

United States v. Escobar, 50 F.3d. 1414 (8thCir. 1995) . . . . . . . . . . . . . . . . . . . 50

United States v. Espinosa, 771 F.2d 1382(10th Cir.), cert. denied, 474 U.S. 1023(1985) . . . . . . . . . . . . . . . . . . . 48

United States v. Foree, 43 F.3d. 1572 (11thCir. 1995) . . . . . . . . . . . . . . . . . . 50

United States v. Gonzalez, 797 F.2d 915 (10thCir. 1986) . . . . . . . . . . . . . . . . . . 43

United States v. Guttierez, 48 F.3d. 1134(10th Cir.), cert. denied, 115 S. Ct. 2598

(1995) . . . . . . . . . . . . . . . . . . . . . . . . 34

United States v. Hayes, 676 F.2d 1359 (11thCir.), cert. denied, 459 U.S. 1040 (1982) . . . . . . . 100

United States v. Hill, 901 F.2d 880 (10thCir. 1990) . . . . . . . . . . . . . . . . . . . . . . 44

United States v. Jackson, 923 F.2d 1494 (11thCir. 1991) . . . . . . . . . . . . . . . . . . . . . 119

United States v. Johnson, 478 F.2d 1129 (5thCir. 1973) . . . . . . . . . . . . 21, 26, 28

United States v. Johnson, 927 F.2d 999 (7thCir. 1991) . . . . . . . . . . . . 34, 35

United States v. Kaminski, 692 F.2d 505 (8thCir. 1982) .  . . . . . . . . . . . 51, 53, 115

United States v. Kelly, 349 F.2d 720 (2d Cir.1965), cert. denied, 384 U.S. 947 (1966) . . . . . . . 39

United States v. Lane, 474 U.S. 438 (1986) . . . . . . . . 11

United States v. Lane, 883 F.2d 1484 (10thCir. 1989), cert. denied, 493 U.S. 1059

(1990) . . . . . . . . . . . . . . . . . . . . . . . . 79

United States v. Lebron-Gonzalez, 816 F.2d823 (1st Cir.), cert. denied, 484 U.S. 843

(1987) . . . . . . . . . . . . . . . . . . . . . . . . 100

United States v. Lewis, 716 F.2d 16 (D.C.Cir.), cert. denied, 464 U.S. 996 (1983) . . . . . . . 100

United States v. March, 999 F.2d 456 (10thCir.), cert. denied, 510 U.S. 983 (1993) . . . . . . . 55

United States v. Marchant, 25 U.S. (12Wheat.) 480 (1827) . . . . . . . . . . . . . . . . . . 12, 96

United States v. Mardian, 546 F.2d 973 (D.C.Cir. 1976) . .. . . . . . . . 39, 77

United States v. Markopoulos, 848 F.2d 1036(10th Cir. 1988) . . . . . . . . . . 50

United States v. Marszalkowski, 669 F.2d 655(11th Cir.), cert. denied, 459 U.S. 906(1982) . . . . . . . . . . . . . . . . . . . . . . . . 78

United States v. Matthews, 26 F. Cas. 1205(C.C. S.D.N.Y. 1843) .  . . . . . . passim

United States v. McClure, 734 F.2d 484 (10thCir. 1984) . . . . . . 27, 32, 119

United States v. McCullah, 76 F.3d. 1087(10th Cir. 1996) . . . . . . . 70, 86

United States v. McCullah, 87 F.3d. 1136(10th Cir. 1996) . . . . . . . 16

United States v. McVeigh, 918 F. Supp. 1467(W.D.Okla. 1996) . . . . . . . 16, 62

United States v. Mussaleen, 35 F.3d. 692 (2dCir. 1994) . .. . . . . . 52

United States v. Odom, 888 F.2d 1014 (4thCir. 1989), cert. denied, 498 U.S. 810

(1990) . . . . . . . . 21

United States v. Olano, 62 F.3d. 1180 (9thCir. 1995) . .  . . . . . 50

United States v. Parnell, 581 F.2d 1374 (10thCir. 1978), cert. denied, 439 U.S. 1076(1979) . . . . . . . . . . . . . . . . . . . . . . . . 42, 43

United States v. Perez, 989 F.2d 1574 (10thCir. 1993) . . .. . . . . . 34, 35

United States v. Peveto, 881 F.2d 844 (10thCir.), cert. denied, 493 U.S. 943 (1989) . . . . . . . passim

United States v. Reyes, 798 F.2d 380 (10thCir. 1986) . .  . . . . . . . 44

United States v. Rimar, 558 F.2d 1271 (6thCir. 1977), cert. denied, 434 U.S. 984

(1977) . . . . . . . . . . . . . . . . . . . . . . . . 100

United States v. Roberts, 583 F.2d 1173 (10thCir. 1978), cert. denied, 439 U.S. 1080(1979) . . . . . . . . . . . . . . . . . . . . . . . . 25, 26

United States v. Romanello, 726 F.2d 173 (5thCir. 1984) .  . . . . . . . . 21, 32

United States v. Rucker, 915 F.2d 1511 (11thCir. 1990) . . . . . . . . . 20

United States v. Sampol, 636 F.2d 621 (D.C.Cir. 1980) . .. . . . . . . . . 39

United States v. Smith, 2 Mason 143, 27 F.Cas. 1167 (No. 16,338) .  . . 13, 61

United States v. Smith, 46 F.3d. 1223 (1stCir.), cert. denied, 116 S. Ct. 176 (1995). . . . . . . 50

United States v. Spock, 416 F.2d 165 (1stCir. 1969) . . . . . . . . 41

United States v. Swingler, 758 F.2d 477 (10thCir. 1985) . . . . . . . . 21, 24, 25

United States v. Tipton, 90 F.3d. 861, 1996WL 377046 (4th Cir. 1996). 19, 99, 103

United States v. Tootick, 952 F.2d 1078 (9thCir. 1991) .  . . . . . 21, 22, 24, 78

United States v. United States Gypsum Co.,438 U.S. 422 (1978) . . . . . . . 42, 43

United States v. Urbanik, 801 F.2d 692 (4thCir. 1986) . . . . . . . . 35

United States v. Velasco, 953 F.2d 1467 (7thCir. 1992) . . . . . . . . 53

United States v. Wolf, 839 F.2d 1387 (10thCir.), cert. denied, 488 U.S. 923 (1988) . . 35

United States v. Wright, 932 F.2d 868 (10thCir.), cert. denied, 502 U.S. 962 (1991) . . . . . . . 79, 87

Washington v. Texas, 388 U.S. 14 (1967) . . . . . . . . . 54

Woodson v. North Carolina, 428 U.S. 280(1976) . . . . . . . . . 15, 63

Yates v. United States, 354 U.S. 298 (1957) . . . . . . . 40

Zafiro v. United States, 506 U.S. 534 (1993) . . . . . . . passim

Zant v. Stephens, 462 U.S. 862 (1983) . . . . . . . . . . 86, 102, 109, 117

STATE CASES

Commonwealth v. Foster, 827 S.W.2d 670 (Ky.

1991), cert. denied, 506 U.S. 921 (1992) . . . . . . . 107

Day v. Maryland, 196 Md. 384, 76 a.2d 729(1950) . . . . . . . . . . . 74, 91, 104

Huffman v. Indiana, 543 N.E.2d 360 (Ind.

1989), cert. denied, 497 U.S. 1011 (1990) . . . . . . . 93

Lafevers v. Oklahoma, 819 P.2d 1362 (Okl.Cr.1991) . .. . . . . 73, 91, 104

McDaniel v. Arkansas, 278 Ark. 631, 648S.W.2d 57 (1983) . .. . . . . . 91

Missouri v. Isa, 850 S.W.2d 876 (1993) . . . . . . . . . . 93

Neill v. Oklahoma, 827 P.2d 884 (Okl.Cr.1992) . . . . . . . . . . . . . . . . 92

North Carolina v. Hucks, 323 N.C. 574, 374 S.E.2d 240 (1988) . . . . . . . . . . 91

Ohio v. Henry, 4 Ohio St. 3d 44, 446 N.E.2d436 (Ohio 1983) . .. . . . . . . . . 90

Pennsylvania v. Lambert, 529 Pa. 320, 603 A.2d 568 (1992) . .. . . . . . . 93

People v. Keenan, 46 Cal. 3d 478, 250 Cal.Rptr. 550, 758 P.2d 1081 (Cal. 1988),

cert. denied, 490 U.S. 1012 (1990) . . . . . . . . . . 90

People v. Smallwood, 42 Cal. 3d 415, 722 P.2d 197, 228 Cal. Rptr. 913 (1986) . . . . . . . . . . . . 91

Reaves v. Georgia, 242 Ga. 542, 250 S.E.2d 376 (1978) . .  . . . . . . . . 90

Rigby v. Mississippi, 485 So. 2d 1060 (Miss.1986) . . . . . . . . . . . . 90

Romano v. Oklahoma, 827 P.2d 1335 (Okl.Cr.1992) . .  . . . . . . . . . . . 92

South Carolina v. Bellamy, 293 S.C. 103, 359 S.E.2d 63 (1987) . .. . . . . . . . . 90

State v. Howard, 295 S.C. 462, 369 S.E.2d 132 (1988), cert denied, 490 U.S. 1113 (1989) . . . . . . . 71, 91, 115

State v. Vinal, 504 a.2d 1364 (Conn. 1986) . . . . . . . . 23

Vermont v. Marsh, 40 A. 836 (Vt. 1898) . . . . . . . . . . 90

Woodruff v. Oklahoma, 825 P.2d 273 (Okl.Cr. 1992) . .. . . . . . . . . . 92

STATUTES

Ga. Code Ann. § 17-8-4 . . . . . . . . . . . 89

Miss. Code Ann. §99-15-47 . . . . . . . . . . . . . 89

Act of April 30, 1790, ch. 9, § 29, 1 Stat.

118 . . . . . . . . . . . . . . . . . . . . . . . . . . 62

18 U.S.C. § 34 (pre-1994 amendment version) . . . . . . . 13

18 U.S.C. §848 63

18 U.S.C. § 1381 . . . . . . . . . . . . . . . . . . . . . 118

18 U.S.C. § 3005 . . . . . . . . . . . . . . . . . . 62

18 U.S.C. § 3432 . . . . . . . . . . . . . . . . . . . . . 63

18 U.S.C. §§ 3591 et seq . . . . . . . . . . . . . . . . . passim

MISCELLANEOUS

Annotation, Propriety of Use of Multiple

Juries at Joint Trial of Multiple

Defendants in Federal Criminal Case, 72

A.L.R. Fed. 875 (1985) . . . . . . . . . . . . . . . 100

Bienan, Helping Jurors Out: Post-Verdict

Debriefing for Jurors in Emotionally

Disturbing Trials, 68 Ind. L.J. 1333,

1346-47 (1993) . . . . . . .82

4 Blackstone, Commentaries *353 (15th

ed. 1809) . . . . . . . . . . . . . 13

Bordens & Horowitz, Information Processing, Etc.

13 J. Applied Social Psychology 351 (1983) . . . . . . . . 83

Bordens & Horowitz, Joinder of Criminal Offenses, etc.,

9 Law & Human Behavior 339, 340 (1985) . . . . . . . . . . 83

Bowers, The Capital Jury Project: Rationale,

Design, and Preview of Early Findings, 70

Ind. L.J. 1043 (1995) . . . . . . . . . . . . . . . . 68

Brinkman, Note, The Presumption of Life: a

Starting Point for a Due Process Analysis

of Capital Sentencing, 94 Yale L.J. 351

(1984). . . . . . . . . . . . . . . . . . 13, 99

Calo, "Joint Trials, Spillover Prejudice, and

the Ineffectiveness of a Bare Limiting

Instruction," 9 Am. J. Trial Advoc. 21,

30-31 (1985) . . . . . . . . . . . . . . . . . . . . . 81, 82

Dawson, "Joint Trials of Defendants in

Criminal Cases: An Analysis of the

Efficiencies and Prejudices," 77 Mich. L.

Rev. 1379, 1381 (1979) . . . . . . . . . . . . . . . . 81, 82

Eisenberg & Wells, Deadly Confusion: Juror

Confusion in Capital Cases, 79 Cornell L.

Rev. 1 (1993) . . . . . . . . . . . . . . . . . . . . . 82

Eskridge and Frickey, "Foreword: Law as

Equilibrium," 108 Harv. L. Rev. 26, 81-87

(1994). . . . . . . . . . 62

Hall, Strict or Liberal Construction of Penal

Statutes, 48 Harv. L. Rev. 748, 751 (1935) . . . . . . . . . . . . . . . . . . 13

Horowitz, et al., A Comparison of Verdicts Obtained in Severed and Joint Criminal Trials,

10 J. Applied Social Psychology 444, 446 & 456 n.1 (1980) . . . . . . . . . . . . . . . . . 81, 83

Jeffries, Legality, Vagueness, and the

Construction of Penal Statutes, 71 Va. L.

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Langrock, Joint Trials: A Short Lesson from

Little Vermont, 9 Crim. L. Bull. 612, 614

(1973) . . . . . . . . . . . . . . . . . . . . . . . . 90

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Misguided?, 70 Ind. L.J. 1161 (1995) . . . . . . . . . 82

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Reifman, et al., Real Jurors Understanding, etc.,

16 Law & Human Behavior 539 (1992) . . . . . . . . . . . . 82

2B Sutherland Statutory Construction § 56.04

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47 J. Personal & Social Psychology 749 (1984). . . . . . . 83

Tiersma, Dictionaries and Death: Do Capital

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Defendant Terry Lynn Nichols moves pursuant to Rule 14, Fed. R. Crim. P., for severance of his case from that of codefendant McVeigh at the guilt phase of trial. In the event of convictions after separate trials at the guilt phase, the defendants would also receive separate death penalty hearings under 18 U.S.C. § 3593 because § 3593(b)(1) requires that the penalty hearing be conducted "before the jury that determined the defendant's guilt." If full severance at the guilt phase is denied, Mr. Nichols requests in the alternative that the Court empanel dual juries to hear the cases simultaneously, except when evidence admissible against only one defendant is being presented. (Point I, infra.)

In the alternative, if the Court denies the motion to sever at the guilt phase, Mr. Nichols moves that any death penalty hearing under § 3593 in his case be conducted separately and before a different jury than the jury that sits in any penalty hearing in the case of Mr. McVeigh. (Point II, infra.)

Mr. Nichols also requests that an evidentiary hearing be held in connection with this motion, at which he will present the expert testimony of Professor Edward J. Bronson, Bryan Stevenson, and David D. Wymore on the subjects of the prejudicial impact of joint trials on capital defendants’ rights and the efficacy of limiting instructions in curing this prejudice. The qualifications of these witnesses and summaries of their testimony are attached hereto as Exhibits A, B and C.

The facts relevant to the instant motion fall into six categories that are relevant to various legal arguments made below. These are:

(1) The evidence against Mr. Nichols and Mr. McVeigh (relevant to the far greater quantity and quality of evidence against Mr. McVeigh as against Mr. Nichols; to the significantly lesser culpability for the crime that the government can prove against Mr. Nichols even if the jury accepts all of its evidence and arguments; to the defenses that will realistically be available to the defendants at trial for purposes of demonstrating the existence of mutual antagonism; and to the inconvenience to the Court, the jury and the government posed by separate trials);

(2) Extremely prejudicial written statements by Mr. McVeigh that are inadmissible as to Mr. Nichols (relevant to show spillover prejudice at a joint trial and the likelihood of jury confusion);

(3) Written statements by Mr. Nichols included for comparison to the written statements of Mr. McVeigh (relevant to show spillover prejudice at a joint trial and the likelihood of jury confusion);

(4) Certain statements of Michael and Lori Fortier strongly inculpating Mr. McVeigh (relevant to demonstrating the far greater quantity and quality of evidence against Mr. McVeigh as against Mr. Nichols; and the significantly lesser culpability for the crime that the government can prove against Mr. Nichols even if the jury accepts all of its evidence and arguments);

(5) Other statements of Michael and Lori Fortier that exculpate Mr. Nichols (relevant to showing that certain statements by Mr. McVeigh to Michael Fortier about Mr. Nichols’ alleged role in the conspiracy will not be admissible against Mr. Nichols);

(6) Other highly prejudicial evidence admissible against Mr. McVeigh but not Mr. Nichols (also relevant to show spillover prejudice at a joint trial and the likelihood of jury confusion); and

(7) Exculpatory evidence as to Mr. Nichols that would face greater barriers to admissibility in a joint trial than in a separate trial.

Extensive statements of these facts are set forth in the appendices filed with this motion. Appendix 1 lists in dual column format, by date, much of the evidence that we expect will be admitted against each defendant in the government's cases. Appendix 2 sets forth a number of written statements that will be proved to have been made by Mr. McVeigh, none of which are admissible against Mr. Nichols and all of which threaten to prejudice the case against him. Appendix 3 sets forth three documents alleged to have been written or executed by Mr. Nichols, which we include for purposes of comparison to Mr. McVeigh's written statements. Appendix 4 contains statements by Michael and Lori Fortier that strongly inculpate Mr. McVeigh (summaries of FBI 302s, excerpts of other 302s, and a newspaper report of grand jury testimony). Appendix 5 contains excerpts of grand jury testimony from Michael and Lori Fortier that strongly exculpate Mr. Nichols. Appendix 6 summarizes other evidence related to Mr. McVeigh's motives and character, apart from his written statements, that will be extremely prejudicial to Mr. Nichols. Because these documents contain or summarize confidential discovery material we have filed them under seal. (We have also filed a redacted version of this brief in the public file that omits specific references to discovery material.) We summarize these materials in the following sections.

The very different cases against Mr. McVeigh and against Mr. Nichols

The cases against Mr. McVeigh and Mr. Nichols differ dramatically in every relevant respect: the quantity and quality of the evidence against each; the degree of culpability for the crime demonstrated, and the character of each defendant for sentencing purposes. These differences seriously threaten Mr. Nichols' ability to receive a fair trial if he is tried jointly with Mr. McVeigh.

. . . . .

. . . . .

Finally, the difference in the two cases means that the individual defenses and trials of the two defendants will be almost entirely different. Mr. McVeigh must and will contest the evidence linking him to the bombing, including much of the forensic tests and procedures, the nature of the bomb used, and the validity of the eye-witness identifications, while Mr. Nichols will contest the linkage of himself with Mr. McVeigh -- the government's main incriminating evidence against him. The two defendants will be concerned with different government witnesses and will call different witnesses on very different issues in their own defense. Thus, as we explain in Section I.A.5., infra, separate trials will pose minimal inconvenience to the Court and government.

Extremely prejudicial statements by Mr. McVeigh

. . . . .

. . . . .

Exculpatory statements by Michael and Lori Fortier

. . . . .

. . . . .

Apart from its intrinsic exculpatory value, this evidence has special significance for the severance issue insofar as it suggests that, even assuming arguendo his initial participation in the conspiracy, Mr. Nichols had withdrawn by December 1994. As we explain in Section I.A.4., infra, among the consequences of withdrawal are the inadmissibility of co-conspirator statements made after the date of withdrawal. Since Mr. McVeigh apparently discussed Mr. Nichols with Mr. Fortier after the date that McVeigh complained that he had withdrawn, these statements may pose a separate Bruton problem for the government requiring severance if it wishes to use them against Mr. McVeigh.

Other prejudicial evidence linking Mr. McVeigh to [UNDER SEAL]

. . . . .

. . . . .

Exculpatory evidence as to Mr. Nichols that may be inadmissible at a joint trial

An additional category of evidence relevant to severance is those parts of the statements given by Mr. Nichols on April 21 and 22, 1995, that the government will not seek to introduce in its case against Mr. McVeigh. These omitted parts exculpate Mr. Nichols by declaring his innocence and inculpate Mr. McVeigh by casting further suspicion on him. As we explain in Sections I.A.6.b. and c., infra, there is an irresolvable conflict between Mr. Nichols' right to introduce these omitted parts to clarify the meaning of the statements introduced by the government and to assure that exculpatory evidence is not excluded, and Mr. McVeigh's Confrontation Clause rights. Accordingly, either Mr. Nichols' right to introduce exculpatory evidence in his own defense will be violated at a joint trial or Mr. McVeigh will be denied his right to cross-examine the witnesses against him. See id.

Introduction and Summary of Argument

The ordinary severance motion in the ordinary case faces an uphill battle. See generally 1 Wright & Miller, Federal Practice and Procedure: Criminal 2d §223 (1982) (discussing cases); but see e.g. United States v. Peveto, 881 F.2d 844, 856-58 (10th Cir.), cert. denied, 493 U.S. 943 (1989) (reversing for failure to sever an alleged co-coconspirator at trial). Neither this case nor this motion are ordinary: first, because here severance is mandated as a matter of law, and second, because the case concerns a defendant whom the government is seeking to execute.

In United States v. Marchant, 25 U.S. (12 Wheat.) 480 (1827), the Supreme Court, per Justice Story, ruled that two defendants charged jointly with a capital crime do not have an automatic right to severance; rather, the decision whether to sever was "a matter of sound discretion, to be exercised by the Court with all due regard and tenderness to the prisoners, according to the known humanity of our criminal jurisprudence." Id., at 485. Of course, much has changed in the "known humanity of our criminal jurisprudence" since 1827, particularly since the Court in Furman v. Georgia, 408 U.S. 238 (1972), began to define the precise nature of the "due regard and tenderness" that must be accorded to capital defendants under the Eighth Amendment.

But long before Furman was decided, even under Marchant’s rule of discretion -- the fount of all subsequent severance jurisprudence and the forbear of Fed. R. Crim. P. 14 -- it was already clear that the many prejudices inherent in a joint prosecution could not be tolerated to the same degree in a trial of joined capital defendants that it could in a joint noncapital trial. As one federal judge explained in 1843:

In a capital case, and in favor of life, I am disposed to secure every protection to the prisoner against the influence of testimony not strictly applicable to him, and shall therefore order trial of the [capital] prisoner Brown, on his plea, to be separated from that of his associates. This decision is to be limited in its effect to the particular case as presented, and is not to seem as a rule in respect to the other indictment, much less in regard to ordinary felonies and misdemeanors. United States v. Matthews, 26 F.Cas. 1205, 1206 (C.C. S.D.N.Y. 1843) (Betts, J.).

As Justice Story himself recognized, the phrase "in favor of life," sometimes rendered in the Latin "in favorem vitae," was a mainstay of capital criminal procedure in the 18th and 19th Centuries, see United States v. Smith, 2 Mason 143, 27 F.Cas. 1167, 1169 (No. 16,338) (C.C. Mass. 1820) (Story, J., in circuit) (recognizing the need for stricter adherence to the formal requirements of indictment pleading in capital cases); see generally Hall, "Strict or Liberal Construction of Penal Statutes," 48 Harv. L. Rev. 748, 751 (1935) (in favorem vitae the source of the doctrine of strict construction of criminal statutes); Jeffries, "Legality, Vagueness, and the Construction of Penal Statutes," 71 Va. L. Rev. 189, 198 (1985) (same); see also 4 William Blackstone, Commentaries *353 (15th ed. 1809) (discussing peremptory challenges in favorem vitae), and was acknowledged as an important element of capital jurisprudence by the Supreme Court and lower courts before Furman was decided. See e.g. Green v. United States, 355 U.S. 184, 215 (1957) (Frankfurter, J., dissenting) (accusing the majority of having "fashion[ed] a policy in favorem vitae" in ruling that a defendant tried on first degree murder charges and convicted of second degree murder could not be retried after a successful appeal on the capital charge); Rankin v. Tennessee, 78 U.S. (11 Wall.) 380, 381-82 (1871) ("It is a rule in criminal law in favorem vitae, in capital cases, that when a special plea in bar found against the prisoner . . . he shall not be concluded or convicted thereon . . . and may plead over to the felony the general issue, not guilty"); Sanford v. Robbins, 115 F.2d 435, 439 (5th Cir. 1940), cert. denied, 312 U.S. 697 (1941) (presuming in favorem vitae that defendant sentenced to death consented to new trial despite absence of express request). Indeed, it arguably was incorporated into the original understanding of the Due Process Clause and Eighth Amendment at the founding. Cf. Brinkman, Note, "The Presumption of Life: a Starting Point for a Due Process Analysis of Capital Sentencing," 94 Yale L. J. 351 (1984) (arguing for a Due Process Clause approach to capital sentencing issues as an alternative to the Furman Eighth Amendment analysis).

Moreover, then as now, capital sentencing was a matter for the jury, see 18 U.S.C. § 34 (pre-1994 amendment version), which could be swayed by prejudicial evidence or argument. Matthews, supra. Judge Betts’ justifications for a particularly scrupulous exercise of the court’s discretion to sever "in favor of life" in a capital case have only become more compelling in the post-Furman era.

In any event, capital or noncapital, "[g]uilt with us remains individual and personal, even as respects conspiracies. It is not a matter of mass application." Kotteakos v. United States, 328 U.S. 750, 772 (1946). In the present posture of this case Mr. Nichols stands in serious risk of being found guilty by "mass application" if he is tried jointly with Mr. McVeigh. The overwhelming horror of the crime; the vastly greater quantity and quality of evidence and level of culpability that will be proved against Mr. McVeigh; the likelihood that the jury will fail to distinguish Mr. Nichols’ political views from Mr. McVeigh’s violent extremism; the highly inflammatory nature of much of the evidence that will be admissible against Mr. McVeigh but not Mr. Nichols; and the exponential compounding of these inherently prejudicial factors brought about by the fact that Mr. Nichols and Mr. McVeigh’s defenses will be entirely antagonistic, combine to make this one of the rare cases in which severance is mandated as a matter of law.

The argument for severance at the guilt phase has three related but independent prongs, two statutory and the other constitutional. In Section I.A., we show that Mr. Nichols is entitled to a severance under the traditional criteria of Fed R. Crim. P. 14: first, Mr. Nichols and Mr. McVeigh's defenses are "so antagonistic that they are mutually exclusive," United States v. Peveto, 881 F.2d 844, 857 (10th Cir.), cert. denied, 493 U.S. 943 (1989) (quoting United States v. Esch, 832 F.2d 531, 538 (10th Cir. 1987), cert. denied, 485 U.S. 908 (1988)); second, highly prejudicial evidence will be admissible against Mr. McVeigh that is not admissible against Mr. Nichols; and third, given the enormity of the crime and the significant weakness of the government's proof of Mr. Nichols' culpability in comparison to the proof against Mr. McVeigh, there is a strong likelihood that Mr. Nichols may be convicted for no reason other than his prior innocent associations with Mr. McVeigh.

Severance would be required as a matter of law for these and other reasons (including the Bruton problem caused by the government’s intention to use Mr. Nichols’ statement at a joint trial, Section I.A.6., infra) even if this were not a capital case. But it is a capital case, and that fact makes a difference in two ways, both of which create a special need for heightened scrutiny of Mr. Nichols’ severance motion.

First, since Woodson v. North Carolina, 428 U.S. 280 (1976) and its companion cases were decided, the two touchstones of constitutional validity of a state’s death sentencing scheme have been the requirements of (a) individualized treatment and respect for the capital defendant, Lockett v. Ohio, 438 U.S. 586, 605 (1978), and (b) heightened reassurance that the capital jury’s fact finding is reliable and undisturbed by irrelevant and prejudicial considerations. Beck v. Alabama, 447 U.S. 625 (1980). These Eighth Amendment touchstones -- individualized treatment and reliable fact finding -- are no less a concern in a joint federal capital prosecution than they are in state capital proceedings. Moreover, they mirror the twin dangers of "mass application" of guilt and distortions in jury fact finding faced by a jointly indicted defendant moving for severance under F. R. Crim. P. 14. Thus, as we demonstrate in Sections I.B.1., infra, where a capital defendant moves for severance, Rule 14 should be construed in pari materia with the Supreme Court’s Eighth Amendment jurisprudence.

Second, apart from these Eighth Amendment concerns, the fact that this proceeding will be bifurcated into separate guilt and punishment phases in the event of a capital conviction creates a dilemma that also requires special scrutiny. Because "the decisions concerning guilt and punishment are dynamically different," Hopkinson v. Shillinger, 781 F.Supp. 737, 743 (D.Wyo. 1991) (Matsch, J., sitting by designation), aff’d, 954 F.2d 609 (10th Cir.), cert. denied, 502 U.S. 1067 (1992), evidence, arguments and defenses that are not prejudicial (or are minimally prejudicial) at the guilt phase of trial may nevertheless turn out to be highly prejudicial in the context of the very different purposes of the sentencing phase. United States v. McCullah, 76 F.3d 1087, 1101-02 (10th Cir. 1996) (finding introduction of a coerced confession at the guilt phase to be harmless error but reversing the death sentence because of the prejudicial impact of this same evidence at the penalty phase); see also United States v. McVeigh, 918 F.Supp. 1467, 1474 (W.D.Okla. 1996) (special role of jury in penalty phase creates special potential prejudices from pretrial publicity and juror attitudes). This means that in at least some circumstances there will be evidence or arguments (for example, mutually antagonistic defenses) that would not ordinarily be sufficiently prejudicial to warrant severance at the guilt phase, but which nevertheless require severance in the context of the penalty phase’s highly personal "subjective judgments," Hopkinson, 781 F.Supp. at 743. Because the same jury hears both phases, 18 U.S.C. § 3593(b), there is a significant likelihood of a prejudicial "spillover" of such guilt phase evidence into the penalty phase in these cases. See Section I.B.2., infra.

Together, these two exceptional concerns demand a much stricter scrutiny of motions for severance in a capital case than is required in a noncapital case. Section I.B.3.a., infra. Regardless of whether the Court agrees that these considerations require that the burden be placed on the government to prove that a joint trial and limiting instructions can adequately protect a capital defendants rights, Section I.B.3.b., infra, or, alternatively, simply mandate that the Court’s discretion to sever be exercised with special care for the capital defendant’s trial rights, Section I.B.3.c., infra, it is clear that the capital nature of this case tilts the balance of potential prejudices and efficiencies decidedly towards the greater protection of trial rights and accurate verdicts that severance affords. In the specific circumstances of this case, that balance points unequivocally toward the need for a severance to protect Mr. Nichols’ specific trial rights and right to a reliable capital verdict.

Finally, we show in Section I.C. that a joint trial in this case would violate the Eighth Amendment to the Constitution.

In the alternative, we demonstrate that severance should be granted at the penalty phase because the antagonistic defenses and the many unresolvable conflicts between Mr. Nichols and Mr. McVeigh’s rights spawned by a joint sentencing hearing make such a hearing fundamentally unfair. Section II.A. We further show that seriatim penalty phases before the same jury cannot solve these problems. Section II.B. Accordingly, in the event the Court denies severance at the guilt phase, it should sever at the penalty phase and empanel a separate jury to hear one of the defendant’s defenses.

Rule 14, Fed. R. Crim. P., provides that where it "appears that a defendant . . . is prejudiced by a joinder . . . of defendants in an indictment or information or by such joinder for trial together, the court may . . . grant a severance of defendants or provide whatever other relief justice requires." Although it is clear that the trial court has broad discretion to sever in appropriate cases, the Supreme Court has emphasized that "[t]here is a preference in the federal system for joint trials of defendants who are indicted together," Zafiro v. United States, 506 U.S. 534, 537 (1993), particularly where a conspiracy is alleged. United States v. Edwards, 69 F.3d 419, 434 (10th Cir. 1995), cert. denied, 116 S.Ct. 2497 (1996). Joint trials, the Supreme Court has explained, "promote efficiency and 'serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.'" Zafiro, 506 U.S. at 537 (quoting Richardson v. Marsh, 481 U.S. 200, 210 (1987)); see also United States v. Lane, 474 U.S. 438, 449 (1986). Given these countervailing considerations, the Court has held that ordinarily "a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro, 506 U.S. at 539. We demonstrate in Section I.A., infra, that such serious risks are present here.

The Court has also emphasized that each case must be closely scrutinized on its own merits, since "[t]he risk of prejudice will vary with the facts in each case." Id. The question presented by the facts in this case -- unprecedented and undiscussed in any opinion of the Supreme Court or any lower federal court -- is how the standard for severance under Rule 14 is to be interpreted where the government has announced its intention to seek the death penalty against codefendants pursuant to the recently enacted federal capital sentencing scheme, 18 U.S.C. §§ 3591 et seq. As we explain in Section I.B., the special nature of the risks in a capital case require a strict construction of Rule 14 in favor of the capital defendant.

A. Mr. Nichols is entitled to severance as a matter of law under the traditional test of Rule 14

Joint trial in this case poses an unacceptable risk of three forms of prejudice: (1) the conflict between Mr. Nichols’ and Mr. McVeigh’s mutually antagonistic defenses will be "so intense that there is a danger the jury will unjustifiably infer from the conflict alone that both defendants are guilty," United States v. Peveto, 881 F.2d 844, 857 (10th Cir.), cert. denied, 493 U.S. 943 (1989) (Section I.A.1.); (2) evidence is likely to be admitted against Mr. McVeigh that is inadmissible and highly prejudicial as to Mr. Nichols (Section I.A.2.); and (3) the horrendous nature of the crime, when combined with the very different levels of culpability alleged of Mr. Nichols and Mr. McVeigh and the evidence of their unpopular but protected political views, creates a tremendous risk of jury confusion and guilt by mere association (Section I.A.3.) Against these considerations, the government’s efficiency interest is de minimis, and it has no legitimate interest in consistent verdicts.

Other factors mandate severance here as well: (4) the likelihood that certain statements made by Mr. McVeigh to the Fortiers about Mr. Nichols’ supposed role in the alleged conspiracy will be inadmissible against Mr. Nichols, creating a threat to his Confrontation Clause rights (Section I.A.4.); (5) the fact that efficiency concerns are de minimis and risk of inconsistent verdicts nonexistent (Section I.A.5.); and (6) the threat to Mr. McVeigh’s Confrontation Clause rights posed by a joint trial at which Mr. Nichols’ statement is introduced, and related conflicts between Mr. Nichols’ right to introduce other parts if the government fails to introduce the entire statement and Mr. McVeigh’s confrontation rights (Section I.A.6.). Finally, to the extent that the Court agrees with our alternative argument that the penalty phases, if any, should be severed and conducted before separate juries, severance should also be granted at the guilt phase (Section I.A.7.).

1. Mr. Nichols and Mr. McVeigh’s defenses are so antagonistic that they cannot receive a fair trial if tried together

The courts of appeals have long recognized that "‘mutually antagonistic’ or ‘irreconcilable’ defenses may be so prejudicial in some circumstances as to mandate severance." Zafiro, 506 U.S. at 538. As the Tenth Circuit has explained, it is not enough to show a "mere conflict of theories or one defendant’s attempt to cast blame on another," but rather "[t]he defendant must demonstrate that the acceptance of one party’s defense would tend to preclude the acquittal of the other, or that the guilt of one defendant tends to establish the innocence of the other." United States v. Peveto, 881 F.2d 844, 857 (10th Cir.), cert. denied, 493 U.S. 943 (1989) (reversing for failure to sever where mutual antagonism demonstrated); see also e.g. United States v. Dirden, 38 F.3d 1131, 1141 (10th Cir. 1994) ("Severance may be necessary if the defenses are ‘so antagonistic that they are mutually exclusive’") (quoting United States v. Esch, 832 F.2d 531, 538 (10th Cir. 1987), cert. denied, 485 U.S. 908 (1988)); United States v. Swingler, 758 F.2d 477, 494-96 (10th Cir. 1985) (discussing doctrine). The circuits have not hesitated to reverse failures to sever where the facts demonstrate that the standard is met. See e.g. Peveto, supra; United States v. Tootick, 952 F.2d 1078 (9th Cir. 1991); United States v. Rucker, 915 F.2d 1511 (11th Cir. 1990); United States v. Romanello, 726 F.2d 173 (5th Cir. 1984); United States v. Crawford, 581 F.2d 489 (5th Cir. 1978); United States v. Johnson, 478 F.2d 1129 (5th Cir. 1973); see also United States v. Odom, 888 F.2d 1014, 1021 (4th Cir. 1989), cert. denied, 498 U.S. 810 (1990) (double jeopardy case; finding "manifest necessity" to sever a defendant because of mutually antagonistic defenses).

The Ninth Circuit has helpfully cataloged some of the distortions in the trial process created by mutually antagonistic defenses:

Defendants who accuse each other bring the effect of a second prosecutor into the case with respect to their codefendant. In order to zealously represent his client, each codefendant's counsel must do everything possible to convict the other defendant. The existence of this extra prosecutor is particularly troublesome because the defense counsel are not always held to the limitations and standards imposed on the government prosecutor. Opening statements . . . can become a forum in which gruesome and outlandish tales are told about the exclusive guilt of the "other" defendant. . . . Counsel can make and oppose motions that are favorable to their defendant, without objection by the government.

Cross-examination of the government's witnesses becomes an opportunity to emphasize the exclusive guilt of the other defendant or to help rehabilitate a witness that has been impeached. Cross-examination of the defendant's witnesses provides further opportunities for impeachment and the ability to undermine the defendant's case. The presentation of the codefendant's case becomes a separate forum in which the defendant is accused and tried. Closing arguments allow a final opening for codefendant's counsel to portray the other defendant as the sole perpetrator of the crime.

Joinder can provide the individual defendants with perverse incentives. Defendants do not simply want to demonstrate their own innocence, they want to do everything possible to convict their codefendants. These incentives may influence the decision whether or not to take the stand, as well as the truth and content of the testimony.

The joint trial of defendants advocating mutually exclusive defenses produces fringe benefits for the prosecution. Joinder in these cases can make a complex case seem simple to the jury: convict them both.

The government's case becomes the only unified and consistent presentation. It presents the jury with a way to resolve the logical contradiction inherent in the defendants' positions. While the defendants' claims contradict each other, each claim individually acts to reinforce the government's case. The government is further benefited by the additive and profound effects of repetition. Each important point the government makes about a given defendant is echoed and reinforced by the codefendant's counsel.

Joinder of defendants who assert mutually exclusive defenses has a final subtle effect. All evidence having the effect of exonerating one defendant implicitly indicts the other. The defendant must not only contend with the effects of the government's case against him, but he must also confront the negative effects of the codefendant's case. Tootick, 952 F.2d at 1082-83.

In addition, where a defendant must attack a codefendant in order to establish his own innocence, the constitutional burden on the government to prove its case beyond a reasonable doubt is lifted. Zafiro, 506 U.S. at 544 (Stevens, J., concurring) ("joinder may invite a jury confronted with two defendants, at least one of whom is almost certainly guilty, to convict the defendant who appears the more guilty of the two regardless of whether the prosecutor has proven guilt beyond a reasonable doubt"); State v. Vinal, 504 A.2d 1364, 1368 (Conn. 1986).

Certain principles should be kept in mind in evaluating a claim of mutually antagonistic defenses. First, this determination must be based on a practical and realistic assessment of the evidence against the defendants likely to be put forward by the government, the defenses realistically available to the defendants given the government’s case, and the likely impact of each of the defendants’ defenses on the other’s case. A "theoretical possibility that the jury might acquit all defendants," Romanello, 726 F.2d at 179 -- a possibility that exists in every criminal case, regardless of the evidence, prosecution case or defenses -- is not enough by itself to defeat a claim of mutual antagonism. Id.

Second, the evil of mutually antagonistic defenses is that they destroy the ability of each defendant to exercise his constitutional right to make a defense to the government’s case and lighten the government’s constitutional burden by interjecting a "second prosecutor" into the trial, not that they make conviction of either defendant more or less likely. Accordingly, defenses may be mutually antagonistic even where the government’s evidence against each defendant is strong. Crawford, 581 F.2d at 492 ("Although the evidence of each defendant’s individual guilt was strong, this joint trial was intrinsically prejudicial"). Conversely, mutual antagonism may exist even where the defenses, when compared with the government’s case against each defendant, are weak. Romanello, 726 F.2d at 179. As the Fifth Circuit succinctly put it, "[t]he real question for a court in considering a severance motion is not how convincing a defendant’s evidence is, but whether the core of his defense directly implicates the co-defendant." Id.

Third, mutual antagonism sufficient to require severance may exist even where only one codefendant directly accuses the other. Tootick, 952 F.2d at 1081 ("Mutual exclusivity may exist when ‘only one defendant accuses the other, and the other denies any involvement’") (quoting Romanello, 726 F.2d at 177). The logic of this rule follows from the fact that where one defendant must prove his codefendant’s guilt as part of his defense, the codefendant must respond by attempting to refute the defendant’s "prosecutive" defense in order to establish his own innocence, and thus becomes genuinely antagonistic to the defendant insofar as he must also defeat the defendant’s only defense as well. Romanello, 726 F.2d at 181 ("[a]lthough the core of his co-defendants’ defense was not [the defendant’s] own guilt, they nevertheless had to undermine [the defendant’s] defense to establish their own innocence"); see also Swingler, 758 F.2d at 496 (distinguishing Romanello and other cases requiring severance for mutual antagonism because "[i]n each of them at least one defendant made a direct accusation against a specific co-defendant").

Finally, the Tenth Circuit has repeatedly emphasized that "the danger that a defendant may be denied a fair trial when confronted with an antagonistic defense is exacerbated when one defendant admits some or all the elements of the charge." Peveto, 881 F.2d at 858; see also Swingler, 758 F.2d at 494 (same); United States v. Roberts, 583 F.2d 1173, 1177 (10th Cir. 1978) (same), cert. denied, 439 U.S. 1080 (1979). Typically in these cases, a defendant’s only realistic defense is based on lack of the required mens rea because the evidence of his participation in the crime is strong, and proof of the defendant’s innocent mental state for some reason depends on proving that the codefendant was guilty. The special risks in this situation are apparent. On one hand, the defendant’s admission of conduct that the government will argue is consistent with guilt -- particularly where these admissions directly implicate the codefendant -- gives dramatic force to the government’s case against the codefendant, while on the other hand, a defense based on lack of intent is inherently vulnerable to attacks leveled by an admitted co-participant in the crime (particularly where the crime charged is a conspiracy). Where, as here, both defendants attempt to demonstrate that their innocent mental state based on the guilty conduct of the codefendant, the danger is maximized that "‘the jury will unjustifiably infer from the conflict alone that both defendants are guilty.’" Peveto, 881 F.2d at 857 (quoting Esch, 832 F.2d at 538).

In Peveto, for example, two defendants, Hines and Rodgers, were arrested during a search of a home methamphetamine laboratory and were charged with narcotics offenses. 881 F.2d at 847. At trial, to Rodgers’ surprise, Hines’ defense was that at the time of his arrest he was working as a government informant. He admitted buying chemicals and glassware for the laboratory and directly implicated Rodgers in the narcotics activity, but disclaimed any criminal intent based on his alleged employment as a government agent. Id. at 848-49. Rodgers, on the other hand, claimed that he went to the house (which belonged to his brother) coincidentally on the day of the search to pick up furniture, that he had no involvement with the narcotics, and that he only remained at the house until the search party arrived because Hines, who was armed, had refused to allow him to leave. Id. at 849.

On these facts, the Tenth Circuit found that the district court had abused its discretion in failing to grant Rodgers’ severance motion after Hines made his accusations at trial:

Hines’ defense was not only prejudicial to Rodgers, but was also mutually exclusive. Rodgers painted himself as innocent too, being held against his will by Hines. If the jury believed that Hines was laying the groundwork as an informant and Rodgers was a dealer (as Hines said) and was at the house in that capacity, then it would necessarily have to disbelieve Rodgers’ defense -- that he had gone to the house to pick up some furniture and appliances and was being held against his will by Hines. . . . The jury’s acceptance of Hines’ defense would "tend to preclude the acquittal of [Rodgers]." Paveto, 881 F.2d at 858 (cites omitted).

Particularly significant to the Court’s holding was the fact that Hines’ admissions lent tremendous credibility to the government’s case against the other codefendants:

Here, Hines admitted buying the glassware and the chemicals, claiming it was all part of his work as an informant. . . . He said that he talked with [another alleged coconspirator] about buying dope houses with the intent of distributing narcotics and he said that "they" (his co-defendants) were "producing amphetamine powder." . . . His admissions directly supported the government’s charges. Id.

To the same effect are the facts and holding in United States v. Johnson, 478 F.2d 1129 (5th Cir. 1973) (cited with approval in United States v. Roberts, 583 F.2d 1173, 1177 (10th Cir. 1978), cert. denied, 439 U.S. 1080 (1979)) (defendant who admitted to passing counterfeit reserve notes defended by claiming to be government informant, arguing lack of criminal intent, and accusing codefendant).

a. Mr. Nichols must prove that Mr. McVeigh is guilty to make his own defense

These principles dictate the conclusion that Mr. Nichols and Mr. McVeigh’s defenses are so mutually antagonistic that severance is required as a matter of law.

. . . . .

. . . . .

In sum, like the defendants in Peveto, Mr. Nichols and Mr. McVeigh will be forced to defend themselves by accusing the other. Severance is therefore required as a matter of law.

b. The mutually antagonistic defenses will violate Mr. Nichols’ right to make a case for a lesser included offense

The mutually antagonistic defenses require severance on another ground as well: their effect on Mr. Nichols’ ability to make a case for a lesser included offense.

Federal capital defendants have a right to lesser included offenses where warranted by the evidence both as a matter of constitutional law under the Eighth Amendment, Beck v. Alabama, 447 U.S. 625 (1980); Trujillo v. Sullivan, 815 F.2d 597 (10th Cir.), cert. denied, 484 U.S. 929 (1987), and federal statute under Fed. R. Crim. P. 31(c); Keeble v. United States, 412 U.S. 205 (1973). The rationale for requiring lesser included offenses upon the defendant's request under both constitution and federal law is similar: the fact that "[w]here one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction." Keeble, 412 U.S. at 213; see also Beck, 447 U.S. at 643 ("in every case [the state's automatic disallowance of lesser included offense instructions in capital cases] introduce[s] a level of uncertainty and unreliability into the fact finding process that cannot be tolerated in a capital case").

. . . . .

. . . . .

The possibility of lesser included offenses for Mr. Nichols also raises the specter of jury confusion. The government’s allegation that Mr. Nichols was not on the scene of the crime establishes his right to lesser included offense instructions, but it is difficult to believe that McVeigh will be entitled to them. His alleged participation in the crime -- and therefore his defenses -- are "all or nothing." Lesser included offense instructions provided for only one makes it likely that the jury will fail to give them their due consideration, or will interpret them as a judicial suggestion that one defendant is less culpable than another. Either way, one of the defendants will be prejudiced.

2. Severance should be granted because highly prejudicial evidence that is inadmissible against Mr. Nichols is likely to be admitted against Mr. McVeigh

Severance is appropriate "when evidence that a jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant." Zafiro, 506 U.S. at 539. The risk of prejudice is particularly high when the evidence is inflammatory, such as prior wrongdoing. Id.

We acknowledge the many cases holding that this consideration, standing alone, typically will not require severance as a matter of law, see e.g. United States v. Calabrese, 645 F.2d 1379, 1385 (10th Cir. 1981), cert. denied, 451 U.S. 1018 (1981), unless "the evidence is so complex or confusing that the jury would be unable to make individual determinations about the guilt or innocence of each defendant." United States v. McClure, 734 F.2d 484, 492 (10th Cir. 1984). In this case, however, that exacting standard is met. The prejudicial evidence to be introduced against Mr. McVeigh -- especially when combined with the other factors favoring severance -- poses a near-certainty of prejudicial confusion of issues and transference of guilt onto Mr. Nichols.

a. Extremely prejudicial statements by Mr. McVeigh [UNDER SEAL] that are inadmissible against Mr. Nichols will be introduced against Mr. McVeigh to prove his motive for the bombing

. . . . .

. . . . .

Even if the statements were relevant, they are inadmissible under Rule 801(d)(2)E). Many of the statements were not made "during the course of" the alleged conspiracy and are inadmissible under Rule 801(d)(2)(E) on this basis. The other statements are inadmissible because they were not made "in furtherance" of the conspiracy within the meaning of the coconspirator admission rule. The Tenth Circuit holds that the "in furtherance" requirement is "‘a limitation on the admissibility of co-conspirators' statements that is meant to be taken seriously,’" United States v. Perez, 989 F.2d 1574, 1578 (10th Cir. 1993) (en banc) (quoting United States v. Johnson, 927 F.2d 999, 1001 (7th Cir.1991)), and that must be construed narrowly. Id. Coconspirator statements are only admissible against another coconspirator where the declarant-coconspirator made the statement with the intent of furthering the conspiratorial objective. United States v. Guttierez, 48 F.3d 1134, 1137 (10th Cir.), cert. denied, 115 S.Ct. 2598 (1995). This requires a contextual analysis of the declarant’s intent at the time of the making of the statement. Id.

The statements contained in the letters to Mr. McVeigh’s sister and friends do not qualify under this narrow exception. None of these individuals were coconspirators of Mr. McVeigh’s, either at the time the statements were made or subsequently. Consequently, they cannot be construed to be

made to induce . . . further participation in the group’s activities; [or] to prompt further action on the part of co-conspirators; [or] to reassure members of the conspiracy’s continued existence; [or] to allay a co-conspirator’s fears; [or] to keep co-conspirators abreast of an ongoing conspiracy’s activities. Perez, 989 F.2d at 1578.

Nor did Mr. McVeigh ever invite or intend them to become coconspirators; hence, they cannot be considered to be "made to induce enlistment . . . in the group’s activities." Id. While Mr. McVeigh urges his sister and old friends not to trust the government or be complacent and to stand up for their rights, he at no time suggests that they assist him with the bombing of the Murrah Building (or any other specific act of violence).

While statements to a nonconspirator may qualify for admission under Rule 801(d)(2)(E), see e.g. United States v. Wolf, 839 F.2d 1387, 1394 (10th Cir.), cert. denied, 488 U.S. 923 (1988) (statements made for purpose of keeping conspiracy from being discovered; however, mere narrative does not further conspiracy), it is also clear that such statements must be closely scrutinized to ascertain whether they are truly "in furtherance" of the conspiracy. See e.g. id., at 1395 (statement to nonconspirator that admitted criminal activity by coconspirator was not "in furtherance" of conspiracy); United States v. Urbanik, 801 F.2d 692, 696 (4th Cir. 1986) (casual incriminating remarks by coconspirator to nonconspirator not admissible) (cited with approval in Perez, supra); United States v. Johnson, 927 F.2d 999, 1001-02 (7th Cir. 1991) (same). Since Mr. McVeigh’s purpose in the letters was to voice his general views and not recruit for or cover up the conspiracy, the statements do not qualify under Rule 801(d)(2)(E).

On the other hand, admission of these statements against Mr. McVeigh threatens to be tremendously prejudicial to Mr. Nichols. [UNDER SEAL]

b. Other highly prejudicial evidence linking Mr. McVeigh [UNDER SEAL], none of which is admissible against Mr. Nichols, will be introduced against Mr. McVeigh

. . . . .

. . . .

3. Severance should be granted because the horrendous nature of the crime, when combined with the very different levels of culpability alleged of Mr. Nichols and Mr. McVeigh and the evidence of Mr. Nichols’ unpopular but protected political views, creates a tremendous risk of jury confusion and guilt by mere association

The bombing of the Murrah Building was a crime of such magnitude and horror that jurors asked to sit in judgment over a person charged with committing it cannot but have a natural desire to believe that he is in fact the guilty party. Our system of justice posits that this desire can be checked and jurors induced to play their constitutional role of impartial fact finders by instructions on the presumption of innocence and the government’s burden of proof. It is another question entirely, however, whether instructions can suffice to overcome that natural desire where jurors sit in judgment over two people, one of whom is clearly guilty and one whose guilt is in reasonable doubt. There is an inevitable tendency for the overwhelming horror of the crime, when combined with the clear guilt of one defendant, to obliterate the individuality of the case against the codefendant -- particularly where, as here, that codefendant is linked to the clearly guilty party by prior (innocent) associations.

Thus, although "the mere fact that one co-defendant is less culpable than the remaining co-defendants is not alone sufficient grounds to establish a trial court abused its discretion in denying severance," United States v. Emmons, 24 F.3d 1210, 1218-19 (10th Cir. 1994) (quoting United States v. Youngpeter, 986 F.2d 349, 353 (10th Cir. 1993)), the Supreme Court has recognized that disparate levels of culpability may nevertheless be an appropriate basis for the district court to exercise its discretion in favor of severance. Zafiro, 506 U.S. at 539; see also e.g. United States v. Sampol, 636 F.2d 621, 643 (D.C. Cir. 1980) ("Even before trial had commenced, the joint trial of defendants on charges growing out of the same underlying event . . . but premised upon entirely disparate levels and allegations of culpability, foreshadowed confusion of the evidence and prejudice to [the defendant moving for severance]"); United States v. Mardian, 546 F.2d 973, 977 (D.C. Cir. 1976) (endorsing "the rule . . . requiring severance when the evidence against one or more defendants is ‘far more damaging’ than the evidence against the moving party") (cite omitted); United States v. Kelly, 349 F.2d 720, 759 (2d Cir. 1965), cert. denied, 384 U.S. 947 (1966).

. . . . .

. . . . .

The difference between Mr. McVeigh’s and Mr. Nichols’ political views is subtle yet of overriding evidentiary and constitutional significance. Compare Appendix 2 (written statements of Mr. McVeigh) with Appendix 3 (written statements of Mr. Nichols). One who recruits and urges others to take immediate action to overthrow the government may be criminally punished, while one who merely advocates anti-government views cannot. Yates v. United States, 354 U.S. 298, 325 (1957). The subtlety of this distinction led the Supreme Court to warn against the likelihood of jury confusion in Smith Act cases, and to require special scrutiny of the evidence tending to show illegal advocacy:

The [intent] element of the membership [Smith Act] crime . . . must be judged strictissimi juri, for otherwise there is a danger that one in sympathy with the legitimate aims of the organization, but not specifically intending to accomplish them by resort to violence, might be punished for his adherence to lawful and constitutionally protected purposes, because of other unprotected purposes which he does not necessarily share. Noto v. United States, 367 U.S. 290, 299-300 (1961).

See also Scales v. United States, 367 U.S. 203, 232 (1961) ("the Smith Act offenses, involving as they do subtler elements than are presented in most other crimes, call for strict standards in assessing the adequacy of the proof needed to make out a case of illegal advocacy"); Yates, 354 U.S. at 326 (acknowledging that these distinctions "are often subtle and difficult to grasp"); United States v. Spock, 416 F.2d 165 (1st Cir. 1969) (discussing need for strict construction of the conspiracy laws where they overlap with conduct involving speech and association).

The government views both defendants’ political convictions as relevant evidence of motive, see Transcript of April 30, 1996 Jury Instruction Conference at 75-76, 85-87, but to date has shown no sign of understanding the significance or subtlety of this distinction between their views. During the April 22, 1995 search of Mr. Nichols’ home, Special Agent Burmeister seized "anti-government literature," which he defined, inter alia, as "anything that is against the philosophy of the United States government, the United States doctrine." Deposition of Steven G. Burmeister (June 26, 1996), at 11. Mr. Nichols’ "anti-government literature" figured large in the government’s arguments against releasing him on bail, see Brief of the United States in Opposition to Release of Terry Lynn Nichols (filed June 1, 1995), at 8-9 and Addenda a-1, a-2 and a-3 (relying on Mr. Nichols’ disavowals of government jurisdiction to keep him incarcerated), and there is no doubt that the government intends to use his political beliefs in its case at trial. In these circumstances the only sure method of safeguarding Mr. Nichols’ right to individualized consideration of the government’s proof against him is to sever the two cases.

4. Certain statements made by Mr. McVeigh [UNDER SEAL] – [EVIDENCE OF WITHDRAWAL]

. . . . .

[UNDER SEAL]

. . . . .

Even assuming arguendo that the government proves that Mr. Nichols joined the conspiracy initially, this is very powerful evidence that he had withdrawn from it no later than November 22, 1994. "Affirmative acts inconsistent with the object of the conspiracy and communicated in a manner reasonably calculated to reach co-conspirators have generally been regarded as sufficient to establish withdrawal or abandonment." United States v. United States Gypsum Co., 438 U.S. 422, 464-65 (1978); see also United States v. Parnell, 581 F.2d 1374, 1384 (10th Cir. 1978), cert. denied, 439 U.S. 1076 (1979) ("In order to withdraw from a conspiracy an individual must take affirmative action, either making a clean breast to the authorities or communicating his withdrawal in a manner reasonably calculated to reach co-conspirators"). By any measure, Mr. Nichols’ departure for a two month trip to the Phillippines to be with his family in the middle of the period of the alleged conspiracy qualifies as an "affirmative act inconsistent with the object of the conspiracy," Gypsum, 438 U.S. at 464, and Mr. McVeigh’s alleged statements to Michael Fortier provide unambiguous evidence (assuming arguendo the initial existence of the conspiracy) that Mr. Nichols had "communicat[ed] his withdrawal in a manner reasonably calculated to reach co-conspirators," Parnell, 581 F.2d at 1384.

Although withdrawal does not relieve a person of guilt for the inchoate crime of conspiracy and acts taken in furtherance of the conspiratorial object prior to the withdrawal, United States v. Gonzalez, 797 F.2d 915, 917 (10th Cir. 1986), it does exonerate her of responsibility for all future acts taken by coconspirators. Id. Thus, if the evidence shows that Mr. Nichols withdrew from the conspiracy in November 1994, then all subsequent statements by Mr. McVeigh would not be admissible against him under FRE 801(d)(2)(E) since they would not have been made "during the course of" a conspiracy of which Mr. Nichols was a member. Id.

It is clear that the government intends to introduce such statements at trial, since [UNDER SEAL].

"Evidence that is probative of a defendant’s guilt but technically admissible only against a codefendant" may warrant severance. Zafiro, 506 U.S. at 539. Here, limiting instructions will not suffice to cure the prejudice of these statements; [UNDER SEAL], the statements fall squarely within the rule of Bruton v. United States, 391 U.S. 123 (1968). The government must therefore decline to introduce them against Mr. McVeigh or agree to sever the two cases. Id.

[UNDER SEAL]. Thus, in the present posture, there is a real possibility that the government will be unable to carry its burden under FRE 104(a) to demonstrate that Mr. Nichols was a member of Mr. McVeigh’s conspiracy at the time of the post-November 1994 statements by Mr. McVeigh that mention Mr. Nichols.

If the Court reaches this conclusion after the statements have already been introduced, see United States v. Reyes, 798 F.2d 380, 384-85 (10th Cir. 1986) (trial court may make Rule 104 finding of conspiratorial relation after conditional introduction of coconspirator statements), Mr. Nichols will have to be severed in the midst of Mr. McVeigh’s trial. Cf. United States v. Hill, 901 F.2d 880 (10th Cir. 1990) (statement of codefendant that implicated defendant introduced by government in reasonable expectation that codefendant would testify requires reversal of defendant’s conviction under Bruton where codefendant failed to testify).

Rather than risk a mid-trial severance of Mr. Nichols and possible mistrial as to Mr. McVeigh, the Court should sever pretrial and avoid the potential problem entirely.

5. Trying Mr. Nichols separately from Mr. McVeigh poses minimal inconvenience to the government and no risk of "inconsistent verdicts"

The government’s two interests in trying defendants jointly are "efficiency" and "‘avoiding the scandal and inequity of inconsistent verdicts.’" Zafiro, 506 U.S. at 537 (quoting Richardson v. Marsh, 481 U.S. 200, 210 (1987)). In this case neither of these interests overrides the countervailing considerations discussed above.

Because the government has charged a conspiracy, it technically has the opportunity to attempt to prove that all of Mr. McVeigh’s actions taken in furtherance of and during the course of the conspiracy are imputable to Mr. Nichols. But, as we explained above, the cases against the two defendants are coextensive in theory only. In fact, most of the relevant evidence against Mr. McVeigh does not concern Mr. Nichols at all and is irrelevant to his defense. Therefore, unlike Mr. McVeigh, who will vigorously contest these facts, Mr. Nichols has little or no interest in countering the government’s presentation on these issues -- [UNDER SEAL]. In practical terms, the case against Mr. Nichols is limited to proving a few specific acts during the period of the alleged conspiracy: [UNDER SEAL].

For these reasons, separate trials of Mr. McVeigh and Mr. Nichols would in reality be two very different trials, technically covering the same conspiracy but focussing on almost entirely distinct acts and evidence. Government efficiency concerns are accordingly minimal.

Moreover, separate trials pose no danger whatsoever of inconsistent verdicts in this case. A concern for inconsistent verdicts arises where two defendants with equal or similar participation in a crime are tried separately, giving rise to the possibility that idiosyncratic differences in the juries will result in unjustifiably different verdicts. That situation is not presented here. It would be fully consistent for one jury to conclude that Mr. McVeigh, who is directly linked to the scene of the crime itself and who described his plans and intentions with respect to the bombing to others in detail, is guilty, while another jury found Mr. Nichols -- who the government agrees was not at the scene, and against whom there is no remotely similar evidence of participation or intention -- to be innocent (or guilty of a lesser included noncapital offense). Our witnesses at the requested severance hearing will speak to this issue.

Accordingly, the government interests in efficiency and consistent verdicts do not justify a joint trial in this case.

6. Bruton v. United States bars the use of the parts of Mr. Nichols’ statement the government seeks to introduce at a joint trial, and, alternatively, there are irresolvable conflicts between Mr. Nichols’ right to introduce other parts of the statement and Mr. McVeigh’s confrontation rights

a. Bruton bars the use of the parts of Mr. Nichols’ statement the government seeks to introduce at a joint trial

In its Motion of the United States in Limine Regarding Statements of Terry Nichols, the government sought to have three alleged assertions by Mr. Nichols that were extracted from his April 21, 1995 statement ruled admissible against Mr. McVeigh as well. These were claims that (1) Mr. Nichols drove Mr. McVeigh to Oklahoma City on April 16, 1995; (2) loaned Mr. McVeigh his pickup truck on April 18, 1995; and (3) cleaned out Mr. McVeigh’s storage locker on April 20, 1995. Motion in Limine 1. That motion has now been denied. However, the government also argued in the alternative that introduction of Mr. Nichols’ statements against him alone at a joint trial would be permissible under Bruton v. United States, 391 U.S. 123 (1968). Id. 8-13. The government’s alternative argument is also incorrect. Hence, if it wishes to use the statements against Mr. Nichols it may only do so if the two cases are severed.

Bruton carved out an exception to the usual assumption that limiting instructions effectively cabin jury’s consideration of evidence and held that a jury will not be presumed to follow an instruction to disregard a nontestifying codefendant’s confession that implicates the defendant. Accordingly, because "a defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial," Richardson v. Marsh, 481 U.S. 200, 207 (1987), the government must choose between severance and use of the statement. In Richardson, the Court refined the Bruton rule and held that "the Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when . . . the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence," id. at 211, even if the defendant can be connected inferentially with the confession through other evidence at trial. Id. at 208-09.

Here, of course, the statements in question do each "facially incriminate" Mr. McVeigh by naming him as involved in the actions described. Nevertheless, the government argues that these statements fall outside the scope of Bruton because the Tenth Circuit has allegedly "limit[ed] Bruton applications to ‘clearly inculpatory’ comments that are ‘vitally important to the government’s case,’" Motion in Limine 9 (quoting United States v. Hill, 901 F.2d 880, 884 (10th Cir. 1990)), and because these statements are assertedly "inferentially" rather than "facially" incriminating within the meaning of Richardson. Motion in Limine 10 (citing Richardson, supra).

Neither of these claims has any basis in the cases cited. Hill does not address the hypothesized "limits" of Bruton at all -- it addressed a garden-variety inculpatory codefendant statement and, fully consistent with Bruton, reversed because of its admission at a joint trial. The quoted language highlighted by the government comes from another case, United States v. Espinosa, 771 F.2d 1382, 1399 (10th Cir.), cert. denied, 474 U.S. 1023 (1985), which does not even deal with a codefendant statement. Espinosa instead addresses a brief and relatively innocuous comment made during an opening statement by a pro se codefendant. Following a long line of similar cases recognizing the significant difference between argument and testimony in the minds of jurors, the court held that "we will not apply Bruton unless [a pro se defendant’s opening statement was] ‘‘clearly inculpatory’ as to the complaining co-defendant[s] and . . . ‘vitally important to the government’s case.’‘" Id., 771 F.2d at 1399 (cites omitted), 1400 n.23. The "clearly inculpatory" language relied upon by the government is thus not a "limitation" on Bruton but a test for applying it to opening statements.

The government also mistakes Richardson’s distinction between "inferentially" and "facially" incriminating statements as reflecting a difference in degrees of inculpation. See Motion in Limine 10 (suggesting that even facially incriminating statements may pass muster under Richardson if they are only slightly incriminating). It does not. Richardson nowhere suggests that the Bruton analysis turns on how "powerfully incriminating," Motion in Limine 12, a codefendant statement is, in the sense of harmfulness to the defendant’s case. Rather, it is the fact that a codefendant statement that mentions the defendant is far less likely to be disregarded by the jury than is a statement which does not mention him, that makes the former statement more "powerfully incriminating." Richardson, 481 U.S. at 208; see also id. at 208 n.3 ("the very premise of our discussion is that [the defendant] would have been harmed by [the codefendant’s] confession if the jury had disobeyed its instructions. . . . Our disagreement [with the dissent] pertains not to whether the confession incriminated respondent, but to whether the trial court could properly assume that the jury did not use it against her."). The reason that the codefendant statement in Richardson was only inferentially incriminating was that it omitted any mention of the defendant at all, which meant that the jury was less likely to be riveted by the "vivid," id., 481 U.S. at 208, spectacle of one defendant accusing another and thus more likely to "obey the instruction to disregard the evidence." Id.; see also United States v. Chatman, 994 F.2d 1510, 1513 (10th Cir.), cert. denied, 114 S.Ct. 230 (1993) (cited by government, Motion in Limine 10) (inferentially incriminating because codefendant statement redacted to omit mention of defendant’s existence); United States v. Markopoulos, 848 F.2d 1036, 1038-39 (10th Cir. 1988) (same). It is for this reason that, contrary to the government’s unsupported suggestion to the contrary (Motion in Limine 11), "facial incrimination" marks the dividing line between statements that require exclusion under Bruton and those that do not.

In this case there is little doubt that Mr. Nichols’ statement will be among the most "vivid" pieces of evidence the government introduces against him, and the jury can be expected to be riveted by this testimony and the mutually conflicting interpretations all three parties will attempt to ascribe to it through direct and cross-examination. It is inconceivable that the jury will be able to separate what they hear about the statement from their consideration of the case against Mr. McVeigh. Indeed, since the government has argued that his association with Mr. McVeigh is among the most incriminating facts they intend to prove against Mr. Nichols, the government will be directing the jurors to focus their attention on Mr. McVeigh even while the Court is instructing them to disregard the effect of the statement on his case. See Reply Brief of the United States Regarding Admissibility of Nichols’ Statements, at 8 ("Nichols’ core statements were incriminating precisely because, and for the most part only because, McVeigh too was involved"). Accordingly, the statement is "powerfully incriminating" as to Mr. McVeigh in the only sense that matters for Bruton purposes: the jurors will be unable to follow an instruction not to consider it in the case against him.

b. Mr. Nichols is entitled to introduce other parts of the April 21, 1995 statement that inculpate Mr. McVeigh to assure that the meaning of the statements is not distorted and that exculpatory information in the statement is not kept from the jury

Alternatively, even if the three specific statements that the government wishes to introduce against Mr. Nichols could be admitted without implicating Mr. McVeigh’s Confrontation Clause rights, it is clear that many of the other statements Mr. Nichols made on April 21, 1995 could not. In the event that the specified statements are introduced at trial, however, Mr. Nichols will have the right to introduce these additional statements under Fed. R. Evid. 106 and 611(a) in order to give the jury a complete, fair and accurate account of the statements introduced by the government. Thus, there will be insuperable Bruton problems even if the government is correct about the part of the statement it will seek to introduce.

When the government seeks to introduce part of a codefendant’s statement against the codefendant at a joint trial in order to avoid Bruton problems, the codefendant has the right to introduce other, omitted parts -- even if introduction of these parts requires severance under Bruton -- where "admission of the statement in its edited form distorts the meaning of the statement or excludes information substantially exculpatory of the declarant." United States v. Bolden, --- F.3d ---, 1996 WL 447756, at *1 (8th Cir. August 9, 1996) (quoting United States v. Kaminski, 692 F.2d 505, 522 (8th Cir. 1982)).

Here, failure to introduce Mr. Nichols’ exculpatory explanations that [UNDER SEAL] contemporaneously with the statements singled out by the government would clearly violate this rule. These explanations go directly to explaining the "meaning of the statement," since they clarify that Mr. Nichols was not the party who initiated or desired the three favors to Mr. McVeigh. For the same reason, they are "substantially exculpatory" of Mr. Nichols, because they eliminate the inference that makes these otherwise innocent acts criminal – [UNDER SEAL]. These statements thus represent a situation that courts have recognized would pose a serious completeness problem -- redactions in which the omitted material would cast into doubt whether the codefendant had the required criminal intent. See e.g. United States v. Velasco, 953 F.2d 1467, 1475 (7th Cir. 1992) (no error in admitting redacted statement because "[t]here is nothing in the portions of defendant’s post-arrest statement that he tried to admit under Rule 106 that make the fact of his guilty knowledge more probable or less probable"); Kaminski, 692 F.2d at 522 & 523 n.28 (no error in admitting redacted statement because "rather than being exculpatory, [the omitted portion] actually corroborated the government’s charge that [the declarant-codefendant] was intimately involved with the operation of FGS and that he had total knowledge of what was going on").

Accordingly, Mr. Nichols’ right to a complete and fair presentation of his statement will be violated unless all of the exculpatory explanations contained in the statement -- including those that directly implicate and accuse Mr. McVeigh -- are admitted contemporaneously with the statements extracted by the government. Since this cannot be done consistent with Mr. McVeigh’s confrontation rights, the government must either forego use of any part of the statement or agree to a severance. Kaminiski, supra.

c. Mr. Nichols is constitutionally entitled to introduce other parts of the April 21, 1995 statement that inculpate Mr. McVeigh in order to demonstrate the circumstances in which the statement was given and the credibility of the statements to be introduced

Finally, and independently, Mr. Nichols is also constitutionally entitled to introduce his exculpatory responses to the agents’ questions concerning Mr. McVeigh’s possible involvement in the bombing to prove that his other statements were truthful, reliable and were exculpatory rather than inculpatory.

A criminal defendant against whom the government seeks to introduce a statement has a constitutional right to introduce evidence of the circumstances in which the statement was given in order to demonstrate its credibility and the weight that should be given to it by the jury. Crane v. Kentucky, 476 U.S. 683, 691 (1986). As the Supreme Court explained in Crane:

Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, Chambers v. Mississippi, [410 U.S. 284 (1973)], or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, Washington v. Texas, 388 U.S. 14, 23 (1967); Davis v. Alaska, 415 U.S. 308 (1974), the Constitution guarantees criminal defendants "a meaningful opportunity to present a complete defense." California v. Trombetta, 467 U.S. [479, 485 (1984)]. . . . We break no new ground in observing that an essential component of procedural fairness is the opportunity to be heard. . . . That opportunity would be an empty one if the State were permitted to exclude competent, reliable evidence bearing on the credibility of a confession when such evidence is central to the defendant’s claim of innocence. In the absence of any valid state justification, exclusion of this kind of exculpatory evidence deprives a defendant of the basic right to have the prosecutor’s case encounter and "survive the crucible of meaningful adversarial testing." . . . Id., 476 U.S. at 690-91 (some cites omitted).

Similarly, "where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice." Chambers v. Mississippi, 410 U.S. 284, 302 (1973).

This case stands at the intersection of Crane and Chambers. Introduction of the limited portion of the statement tendered by the government could easily lead the jury to conclude that Mr. Nichols was conceding some knowing involvement in the bombing; indeed, the government has already suggested that it will argue that parts of the statement demonstrate guilty knowledge through the use of false exculpatory explanations. See Letter dated March 15, 1996, from Joseph H. Hartzler to Michael E. Tigar and Stephen Jones, at 6 (describing portions of statement to be introduced against Mr. Nichols as allegedly false exculpatory statements). To paraphrase Crane, the jurors will inevitably be led to ask: "If the defendant is innocent, why did he previously admit [significant facts suggesting] his guilt?" Crane, 476 U.S. at 689. Mr. Nichols’ voluntary appearance at the Herington Department of Public Safety and willingness to provide all the information requested of him about possible leads in the bombing investigation – [UNDER SEAL] -- counters the inference of guilt by demonstrating his innocent mental state and credibility at the time he made the statements.

Accordingly, should the government attempt to use his statement against him, Mr. Nichols has the right to introduce the other portions that exculpate him and inculpate Mr. McVeigh, including his statement of his beliefs regarding Mr. McVeigh’s involvement in the bombing. Since introduction of these additional statements would clearly implicate Mr. McVeigh’s Confrontation Clause rights, the government must decline to use the statement at all or agree to a severance.

7. To the extent severance is granted at the penalty phase, severance at the guilt phase is required as well

Finally, to the extent that the Court agrees with our alternative argument that severance at the penalty phase and sentencing hearings before different juries is required, Point II, infra, it should also grant guilt phase severance as well.

First, under 18 U.S.C. § 3593(b)(1), there is an express preference for the same jury to hear both the guilt and penalty phases. As we argue under Point II below, that preference is not sufficient in this case to permit the same jury that heard the joint guilt phase to hear the defendants’ joint penalty phases, either together or seriatim. But, once having reached this conclusion, the preference can still be given effect by severing at the guilt phase as well and trying each defendant individually before the same jury at both stages in separate proceedings.

Second, any efficiency concerns weighing against guilt phase severance are largely obviated once penalty phase severance is granted, because the separately empaneled penalty phase jury must be educated in detail about the facts of the crime before it can render an individualized sentencing judgment. For example, the jury must be sufficiently educated so that it can determine with some precision the relative levels of culpability of the individuals who participated in the crime. See 18 U.S.C. §§ 3592(a)(3) (requiring the penalty phase jury to consider whether the defendant’s participation in the crime was "relatively minor"); 3592(a)(4) (requiring the jury to consider whether another who participated in the crime and was not sentenced to death was "equally culpable" as the defendant). Since this education will require that much of the evidence relating to the crime be entered at the penalty hearing and the defendant be allowed the opportunity to contest the government’s account, in effect, the better part of a de facto separate guilt phase will be required at the severed penalty phase in any event. Given this, the added burden on governmental and judicial resources represented by a full, severed guilt phase is not nearly as great as it might otherwise appear. Cf. Lockhart v. McCree, 476 U.S. 162, 181 (1986) ("it seems obvious to us that in most, if not all, capital cases much of the evidence adduced at the guilt phase of the trial will also have a bearing on the penalty phase; if two different juries were to be required, such testimony would have to be presented twice, once to each jury").

Finally, if trial is severed at the penalty phase but not the guilt phase, one of the defendants -- the one for whom a new jury is empaneled to hear his sentencing hearing -- will lose a critical mitigating factor, residual doubt. A capital defendant’s interest in being able to rely on the jury’s lingering doubt about his participation in the crime (or his degree of participation) is so significant that it was one of the chief pillars of the Supreme Court’s decision in Lockhart v. McCree, supra, which upheld the constitutionality of a unified capital trial such as the one conducted in this case. As the Court explained, "‘[s]uch residual doubt has been recognized as an extremely effective argument for defendants in capital cases. To divide the responsibility . . . to some degree would eliminate the influence of such doubts.’" Id. (quoting McCree v. Lockhart, 758 F.2d 226, 247-248 (8th Cir. 1985) (Gibson, J., dissenting)).

Loss of this factor would be particularly critical to Mr. Nichols. As we showed above, the evidence against him is far weaker than that against Mr. McVeigh, and his relative culpability, even as alleged by the government, is far less. Given the horror of the crime, the jury’s lingering uncertainty about Mr. Nichols’ role may be the most significant mitigating factor that it would consider in the event a penalty hearing is necessary.

The undisputed fact that Mr. Nichols was not at the scene of the crime and had no participation in the actual placement and detonation of the bomb on April 19 also means that there is substantial room for residual doubt (as well as reasonable doubt) about his intentions, even if the jury convicts him of a capital crime. The defendant’s intention with respect to "resulting death" is a threshold finding that, under the federal statute, the penalty phase jury must find beyond a reasonable doubt before imposing the death penalty, 18 U.S.C. § 3591(a)(2), and for this reason lingering uncertainty about Mr. Nichols’ intentions may play a particularly critical role in the event he is convicted of a capital offense.

Accordingly, even if the preceding considerations are deemed insufficient by the Court to require guilt phase severance, to the extent that the Court agrees that the defendants’ penalty phases should be severed completely and held before separate juries, the Court should sever at the guilt phase anyway.

B. Special considerations unique to capital cases require heightened scrutiny of a capital defendant’s motion for severance

Two factors unique to capital trials dictate that Rule 14 be construed to require heightened scrutiny of a capital defendant’s motion for severance. These are the special role of Eighth Amendment values in capital proceedings, and the very different natures of the decisions and decision making processes of the jury at the guilt and penalty phases of a capital trial. We discuss these in turn, and then explain how together they require heightened scrutiny under Rule 14.

1. In a capital case, Rule 14 should be construed in pari materia with the Eighth Amendment's requirements of individualized consideration and heightened reliability in fact finding and verdicts

Two considerations, both unique to capital cases and both of constitutional dimension, must inform the court's decision about whether "it appears that a [capital] defendant . . . is prejudiced by a joinder" within the meaning of Rule 14 in a capital case. These are: (1) the requirement of heightened reliability of verdicts in capital cases, since in capital cases "the Eighth Amendment requires a greater degree of accuracy and fact finding than would be true in a noncapital case," Gilmore v. Taylor, 508 U.S. 333, 342 (1993); and (2) the related requirement of truly individualized consideration prior to imposition of a death sentence -- a decision that must possess the "precision that individualized consideration demands," Stringer v. Black, 503 U.S. 222, 231 (1992), to ensure that "each defendant in a capital case [is treated] with that degree of respect due the uniqueness of the individual." Lockett v. Ohio, 438 U.S. 586, 605 (1978). Only where these conditions are met has the Supreme Court been willing to find that the jury "has treated the defendant as a 'uniquely individual human bein[g]' and . . . made a reliable determination that death is the appropriate sentence." Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (quoting Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion)).

These two factors are equally weighty considerations in determining the statutory question of how Zafiro's fact-specific "risk of prejudice" analysis applies to a federal capital defendant seeking severance under Rule 14 at the guilt phase of her trial. The need for extra reliability in a capital case is not reduced (much less eliminated) simply because the federal court is determining the application of its own procedural rules rather than passing judgment over the constitutionality of state procedures in a habeas corpus proceeding. Indeed, absent the federalism concerns constraining a federal court's review of state procedures, a federal court applying its own rules has greater freedom -- and therefore greater responsibility -- to ensure, as the Supreme Court has admonished, that the procedures before it are fair, that the defendant's "specific trial rights" are not prejudiced, and that the jury's "judgments about guilt and innocence" are "reliable." Zafiro, 506 U.S. at 539. And "fairness," prejudice of "trial rights," and "reliability" in this context have been given specific and definite meanings by the Supreme Court in twenty years of death penalty jurisprudence, definitions that should control the federal courts' interpretation of their own rules no less than their interpretations of the constitutional proscription against cruel and unusual punishment used to regulate state procedures.

The notion that statutes, and criminal procedural statutes in particular, should be interpreted in light of related constitutional values is hardly a novel one, since "[i]t is a commonplace . . . that 'constitutional policy can provide a valuable aid in determining the legitimate boundaries of statutory meaning.'" National Treasury Employees Union v. Federal Labor Relations Authority, 986 F.2d 537, 539 (D.C. Cir. 1993) (quoting Singer, 2A Sutherland Statutory Construction § 56.02 (4th ed. 1984)). See e.g. Gomez v. United States, 490 U.S. 858, 864 (1989) (interpreting the Federal Magistrates Act, 28 U.S.C. § 631 et seq., in light of Article III and the Due Process Clause and holding that, as a matter of statutory construction and not constitutional law, voir dire was not among the duties that a magistrate could perform absent the defendant's consent); Gregory v. Ashcroft, 501 U.S. 452, 459-460 (1991) (Tenth Amendment value protecting traditionally sensitive areas of state regulation mandates presumption that Congressional legislation not meant to "preempt the historic powers of the States" absent clear statement of intention to do so); Hall v. Commissioner of Internal Revenue, 30 F.3d 1304, 1306-7 (10th Cir. 1994) (disagreeing with the Tax Court’s limiting interpretation of a tax exemption provision for ministers because "the Tax Court's interpretation of § 1402(e) could arbitrarily and unconstitutionally interfere with the adherence to sincere religious beliefs of individuals," and interpreting provision to cover taxpayer because the "plain language of the statute does not preclude this sensible reading").

Indeed, as we noted above, the doctrine that criminal procedural rules should be interpreted in favorem vitae in a capital case dates to the English common law, and was an element of American jurisprudence -- including the American common law of severance -- from the beginning. United States v. Matthews, 26 F.Cas. 1205, 1206 (C.C. S.D.N.Y. 1843) (recognizing special need for severance of a capital defendant to avoid spillover prejudice); see also United States v. Smith, 2 Mason 143, 27 F.Cas. 1167, 1169 (No. 16,338) (C.C. Mass. 1820) (Story, J., in circuit) (recognizing the need for stricter adherence to the formal requirements of indictment pleading in capital cases) and other authorities cited at pages - , supra.

In granting a change of venue this Court has itself interpreted Fed. R. Crim. P. 21(a) in light of the Eighth Amendment's constraints on capital trials. United States v. McVeigh, 918 F.Supp. 1467, 1474 (W.D.Okla. 1996) (special role of jury in penalty phase requires venire not predisposed toward death sentence). Many other examples of statutory interpretation guided by underlying constitutional values could be adduced, but the point is clear: although interpreting the Rules of Criminal Procedure in light of the Supreme Court's constitutional death penalty jurisprudence may be novel, this is only because the post-Furman federal death penalty itself is novel. Construction of statutes by reference to related constitutional values is so far from unprecedented as to be an established canon of statutory construction. See 2B Sutherland Statutory Construction § 56.04 (5th ed. 1992) ("Constitutional policy"); Eskridge and Frickey, "Foreword: Law as Equilibrium," 108 Harv. L. Rev. 26, 81-87 (1994) (discussing role of constitutional values in statutory interpretation); id. at 101-105 (listing cases).

Equally noteworthy -- since this is a statutory and not a constitutional argument -- Congress itself has long recognized the need for special procedural protections in capital cases. Prior to the ratification of the Constitution, colonial legislatures distinguished capital from non-capital defendants for purposes of making counsel available, see Powell v. Alabama, 287 U.S. 45, 61-63, 65 (1932), and, consistent with this practice, the First Congress provided for appointment of counsel for capital defendants in the same act that authorized capital punishment. It did not make similar provision for noncapital defendants for almost another century. See Mallard v. United States District Court, 490 U.S. 296, 306 (1989) (discussing Act of July 20, 1892, ch. 209, § 1, 27 Stat. 252, codified at 28 U.S.C. § 1915(d)). Moreover, Congress initially limited the federal right of appeal to capital cases. See Evitts v. Lucey, 469 U.S. 387, 409 (1985) (Rehnquist, J., dissenting). Capital defendants have also had a special statutory right to early receipt of the government’s witness list, 18 U.S.C. § 3432 dating to the First Congress, and special legislative protections for defendants accused of federal capital crimes continue to this day. See 18 U.S.C. §§ 3005, 848(q)(4)-(10) (special provisions for appointment and funding of counsel, investigators and experts in capital cases). These sources demonstrate that interpreting Rule 14 to require heightened scrutiny of the effect of joinder on a capital defendant's case would be fully consistent with longstanding Congressional policy as well.

The concerns for individualized consideration and reliable fact finding animating the Supreme Court's death penalty jurisprudence are therefore independently applicable and compelling where a district court must make the decision whether or not to sever a capital defendant under Rule 14 in the guilt phase of a capital trial. Whether the operative legal provision is Rule 14 or the Eighth Amendment, the danger is the same: that the jury will treat the co-defendants "not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the death penalty." Woodson, 428 U.S. at 304.

In the following subsections, we briefly canvass the Eighth Amendment values relevant to this case (Section I.B.1.a.) and show that these values must inform the procedures of the guilt phase of a capital trial as well as at the penalty phase (Section I.B.1.b.).

a. The Eighth Amendment requires "individualized consideration" and "heightened reliability of fact finding" in a capital case

In an unbroken string of cases beginning with Woodson v. North Carolina, 428 U.S. 280 (1976), the Supreme Court has held that individualized consideration of a defendant's arguments for being spared the death penalty is a sine qua non of a constitutional capital sentencing procedure. See e.g. Stringer, 503 U.S. at 230-31 (vague aggravating factor denied defendant "individualized consideration"); Parker v. Dugger, 498 U.S. 308, 322 (1991) (appellate court's failure to reweigh aggravating and mitigating factors after striking two aggravating factors failed to provide "individualized treatment"); Clemons v. Mississippi, 494 U.S. 738, 751 (1990) (reweighing required to provide individualized treatment); Lockett v. Ohio, 438 U.S. 586, 605 (1978) (all mitigating factors must be considered by jury in order to accord respect due defendant as "uniquely individual human bein[g]"); Eddings v. Oklahoma, 455 U.S. 104 (1982).

The requirement of individualized consideration of the whole person is rooted in the deeper lesson of Woodson -- that the unique finality of the death penalty requires a uniquely certain determination of the appropriateness of the penalty. "Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case." Woodson, 428 U.S. at 305. The "individualized consideration" doctrine gives body to the principle that a defendant's life should be taken only where the fact finder is morally certain that she deserves to die, a conclusion that cannot and should not be based on a trial process that "interjects irrelevant considerations into the fact finding process." Beck v. Alabama, 447 U.S. 625, 642 (1980).

Accordingly, the Supreme Court has consistently emphasized the heightened requirement of reliability in capital fact finding procedures. As Justice Marshall put it in Ford v. Wainwright, 477 U.S. 399 (1986), "[i]n capital proceedings generally, this Court has demanded that fact finding procedures aspire to a heightened standard of reliability . . . This especial concern is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different." Id., at 411 (plurality opinion); see also Lankford v. Idaho, 500 U.S. 110 (1991) (requiring notice of possibility that death penalty will be imposed to ensure accurate capital verdict); California v. Ramos, 463 U.S. 992, 998-999 (1983) (the Court "has recognized that the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination"); Ake v. Oklahoma, 470 U.S. 68, 87 (1985) (Burger, C.J., concurring) ("In capital cases the finality of the sentence imposed warrants protections that may or may not be required in other cases"); see also e.g. Herrera v. Collins, 506 U.S. 390, 399 (1993) ("[i]n capital cases, we have required additional protections because of the nature of the penalty at stake"); Beck v. Alabama, 447 U.S. 625, 638 (1980) ("[W]e have invalidated procedural rules that tend to diminish the reliability of the sentencing determination. The same reasoning must apply to rules that diminish the reliability of the guilt determination"; note omitted).

b. The "individualized consideration" and "heightened reliability of fact finding" requirements apply to the guilt phase of a capital trial

Most of the cases discussing the individualized consideration and heightened reliability requirements have dealt with challenges to penalty phase procedures. It has long been clear, however, that the Supreme Court's concern with heightened reliability extends to the guilt phase of the trial as well. Well before the onset of the modern era of capital jurisprudence in Furman v. Georgia, 408 U.S. 232 (1972), the Supreme Court recognized that capital proceedings required special procedural rules and protections not extended to noncapital defendants. In Powell v. Alabama, 287 U.S. 45 (1932), for example, the Court held that at least some capital defendants had a right to effective appointed counsel thirty years before extending that right to others accused of noncapital felonies. Compare Gideon v. Wainwright, 372 U.S. 335 (1963); see also Bute v. Illinois, 333 U.S. 640, 674 (1948) (no obligation on part of state court to inquire whether noncapital defendant wished to be represented by counsel; contrasting due process right of capital defendant to appointed counsel); Reid v. Covert, 354 U.S. 1, 45-46 (1957) (Frankfurter, J., concurring) ("It is in capital cases especially that the balance of conflicting interests must be weighted most heavily in favor of the procedural safeguards of the Bill of Rights").

More recently, recognizing that "[t]he quintessential miscarriage of justice is the execution of a person who is actually innocent," Schlup v. Delo, 115 S.Ct. 851, 866 (1995), the modern Court also has imposed special procedural requirements on determinations of guilt and innocence in capital cases that it has not imposed in noncapital cases. As Justice Stevens explained in Beck v. Alabama, 447 U.S. 625 (1980), "we have invalidated procedural rules that tend to diminish the reliability of the sentencing determination. The same reasoning must apply to rules that diminish the reliability of the guilt determination." Id. at 638 (note omitted). In Beck the Court held that the Eighth Amendment forbids imposition of a death sentence where the jury was denied the opportunity to find that the defendant was guilty of a lesser included noncapital offense that was rationally supported by the evidence. The problem with Alabama's capital punishment scheme (which did not allow lesser included offense instructions in capital cases) was that it "enhance[d] the risk of an unwarranted conviction," id. at 637, by distracting the jury from its overriding obligation to determine whether a defendant is among those that deserve to be eligible for death:

In the final analysis the difficulty with the Alabama statute is that it interjects irrelevant considerations into the fact finding process, diverting the jury's attention from the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime. Id. at 642.

Because of the magnitude of this "central issue," the Court held there to be a special Eighth Amendment right to a lesser included offense instruction in capital cases, even though no such right existed in noncapital cases. See id. at 637 ("we have never held that a defendant is entitled to a lesser included offense instruction as a matter of due process").

As the Court later explained, the Beck rationale was not limited to the specific issue of all-or-nothing jury instructions, but represented a more general principle requiring enhanced reliability in the jury's guilt phase determinations: "The element the Court in Beck found essential to a fair trial was not simply a lesser included offense instruction in the abstract, but the enhanced rationality and reliability the existence of the instruction introduced into the jury's deliberations." Spaziano v. Florida, 468 U.S. 447, 455 (1984). Subsequent cases have reiterated the Supreme Court's belief that the potential danger of executing the "actually innocent," Schlup, 115 S.Ct. at 866, requires special guarantees of reliability where the conviction of a capital defendant is at issue. See e.g. Gilmore v. Taylor, 508 U.S. 333, 342 (1993) (in capital guilt phase "the Eighth Amendment requires a greater degree of accuracy and fact finding than would be true in a noncapital case"); Herrera v. Collins, 506 U.S. 390, 399 (1993) ("[i]n capital cases, we have required additional protections because of the nature of the penalty at stake"); Gray v. Mississippi, 481 U.S. 648, 669 (1987) (Powell, J., concurring) (reverse-Witherspoon case; declining to find harmless error because "[g]iven our requirement of enhanced reliability in capital cases, I would hesitate to conclude that the composition of the venire 'definitely' would have been the same").

Apart from its enshrinement as Supreme Court doctrine, the notion that the Eighth Amendment values of individualized consideration and extra-reliable verdicts apply at the guilt phase is unassailable as a matter of logic. Only defendants who are convicted of capital crimes are eligible in the first instance for the death penalty, and the Eighth Amendment would be a shadow protection if its only effect was on the death selection, but not the death eligibility, procedure. Furthermore, the jury that decides guilt or acquittal of the capital offense is well-aware of the sentencing implications of its decision -- in fact, much of voir dire is spent on imparting just that information. Having once committed itself to making the defendant eligible for death, this decision cannot but influence the penalty phase decision whether to actually impose the penalty. Empirical research on the decision making of capital juries bears out this common sense hypothesis. See Bowers, "The Capital Jury Project: Rationale, Design, and Preview of Early Findings," 70 Ind. L. J. 1043 (1995). For both these reasons, the Eighth Amendment would be toothless unless it also controlled during the guilt phase.

The Supreme Court made both these points in Beck. The Alabama capital sentencing scheme at issue there placed ultimate sentencing responsibility with the judge, by requiring him to hold an evidentiary hearing following a capital conviction to determine whether or not the death sentence should be commuted to life imprisonment without parole. Beck, 447 U.S. at 628-29 & n.4. The state therefore argued that the Eighth Amendment was satisfied because "even if a defendant is erroneously convicted, the fact that the judge has the ultimate sentencing power will ensure that he is not improperly sentenced to death." Id. at 645. The Court was "not persuaded":

If a fully instructed jury would find the defendant guilty of a lesser, noncapital offense, the judge would not have the opportunity to impose the death sentence. Moreover, it is manifest that the jury's verdict must have a tendency to motivate the judge to impose the same sentence that the jury did. . . . Under these circumstances, we are unwilling to presume that a post-trial hearing will always correct whatever mistakes have occurred in the performance of the jury's fact finding function. Id. at 645-46.

In the federal capital scheme it is the jury and not the judge that makes the ultimate decision, but the logic is the same. Since guilt phase proceedings directly influence (indeed make possible) the jury’s decision whether or not to impose the death penalty, Eighth Amendment values must be respected during that phase as well.

2. Because of the different purposes of the guilt and penalty phases of a capital trial, there is a substantial risk that evidence and arguments legitimately introduced at the guilt phase may be prejudicial and inadmissible in the penalty phase, and the danger that the jury will nevertheless consider this improper evidence and argument cannot be cured by limiting instructions

The different purposes of the bifurcated guilt and penalty phases of a capital trial creates a dilemma that also requires special scrutiny of a capital defendant’s guilt phase severance motion.

As this Court has explained, the jury plays a very different role in the guilt and punishment phases of a capital trial, because "the decisions concerning guilt and punishment are dynamically different."

To decide guilt of the offense charged, a jury analyzes factual evidence to determine whether it proves beyond a reasonable doubt that the accused committed the criminal acts with the requisite intent. That is an objective process. To decide between life and death in sentencing, the jury exercises subjective judgment. A guilty or not guilty verdict is an act of analysis. A penalty verdict of life or death is an act of conscience. Hopkinson v. Shillinger, 781 F.Supp. 737, 743 (D.Wyo. 1991) (Matsch, J., sitting by designation), aff’d, 954 F.2d 609 (10th Cir.), cert. denied, 502 U.S. 1067 (1992).

Because the two phases serve such different purposes, evidence that has relatively little prejudicial impact at the guilt stage may take on enormous significance during the very different deliberations at the penalty phase. This is the teaching of United States v. McCullah, 76 F.3d 1087 (10th Cir. 1996), which found the introduction of a coerced confession at the guilt phase of a capital trial to be harmless error, yet reversed the death sentence because of the prejudicial impact of this same evidence at the penalty phase of the trial. Id. at 1101-02.

Despite the different goals of the two phases, the same jury that hears the guilt phase evidence also decides whether or not to impose the death sentence in the penalty phase. 18 U.S.C. § 3593(b). As a result, in capital case tried pursuant to § 3593, jurors deciding the death penalty question will frequently have heard evidence in the guilt phase that, although not sufficiently prejudicial to warrant severance at the guilt phase under the usual (noncapital) circumstances, is highly prejudicial and would warrant severance when considered in the context of the penalty deliberations.

This is not a problem that can be solved by severing the joint trial at the penalty phase alone, because once the penalty phase jury has been "poisoned" by evidence or argument presented at the joint guilt phase, it is too late to avoid the risk that illicit prejudicial considerations will enter into the jury’s penalty phase deliberations. Whether the attempted solution is seriatim penalty hearings before the same jury or empaneling one new jury to hear one of the defendant’s penalty hearings, the problem remains: a jury that is exposed to sentencing-prejudicial evidence or defenses in the guilt phase cannot wipe this from its mind at the penalty phase, even if that phase relates to only one of the two defendants. Hence the wisdom of the Supreme Court of South Carolina’s admonition: "We caution the trial bench when considering a capital defendant's motion to sever that the effect of a joint trial on each defendant at both the guilt and sentencing phases must be considered." State v. Howard, 295 S.C. 462, 473, 369 S.E.2d 132, 138 (1988), cert denied, 490 U.S. 1113 (1989).

The inevitability of this "spillover" of evidence between the guilt and penalty proceedings, when combined with the very different nature of the judgment being rendered at the penalty phase, requires a much more exacting scrutiny of the potential for prejudice than is required in a noncapital case. When evaluating a capital defendant’s motion to sever at the guilt phase the Court must consider not only the prejudicial impact of evidence introduced at the guilt phase on the guilt/innocence determination, but its prejudicial impact on the jury’s later penalty phase deliberations as well.

The potential conflict between guilt and penalty phase prejudice can arise in innumerable ways. One example of immediate relevance here is the differing prejudicial effects of antagonistic defenses at the two phases. As we explained above, Mr. Nichols and Mr. McVeigh’s guilt phase defenses will be mutually exclusive, in the sense that "the acceptance of one party’s defense would tend to preclude the acquittal of the other, or that the guilt of one defendant tends to establish the innocence of the other." United States v. Peveto, 881 F.2d 844, 857 (10th Cir.), cert. denied, 493 U.S. 943 (1989); see Section I.A.1., supra. Only mutual antagonisms satisfying this strict test suffice to require severance. Id. At a penalty phase hearing, however, a much broader definition of prejudice is required to ensure a proceeding consistent with the Eighth Amendment.

At the guilt phase, as in a noncapital case, the jury does not decide degrees of relative culpability. A defendant is guilty of a bank robbery regardless of whether she planned the crime, robbed the bank alone and kept all the loot herself, or whether she unwillingly but knowingly loaned her car to the person who actually performed the robbery to use as a getaway vehicle. But in the penalty phase, in which legal culpability is already established, it is relative culpability that matters. As the Oklahoma Court of Criminal Appeals explained in Lafevers v. Oklahoma, 819 P.2d 1362 (Okl.Cr. 1991), "[u]nlike the first stage of a bifurcated trial, in the second stage [relative] culpability of the defendant is a critical issue." 819 P.2d at 1367. Describing a very typical joint penalty phase scenario, the court went on:

In this case, neither defendant denied that the victim had been viciously treated. Instead, their attempt to avoid the death penalty focused on attempting to lessen their own participation in the events of that evening. The defense presented by defendant Cannon in mitigation to his own responsibilities for the events resulted in evidence that was directly aggravating to Appellant Lafevers. Again, the inherent problems involved when two defendants with mutually antagonistic defenses are put on trial together results in fundamental unfairness. The granting of separate trials would have solved this problem. Id.

"[A]ttempting to lessen their own participation" in the crime by pointing their fingers at each other would probably not suffice to require severance as a matter of law at the guilt phase of a noncapital trial. See Section I.A.1., infra. Nevertheless, this level of antagonism requires penalty phase severance, because the critical issue at the penalty phase is relative and not legal culpability. See Sections II.A.1.-4., infra.

If the penalty phase is reached, however, the jury will already have heard the antagonistic codefendants’ attempts to pin the blame for the crime on each other and minimize their own role. Regardless of whether this mutual finger-pointing meets the guilt phase standard for severance, there is a serious risk that it will have prejudiced the jury’s ability to determine each defendant’s culpability on the individual basis required by the Eighth Amendment at the subsequent penalty phase.As this pre-Furman case demonstrates, the problem discussed in this subsection results from the bifurcated structure and purposes of the capital trial, and not from the (post-Furman) Eighth Amendment considerations discussed in the preceding subsection. The two arguments are independent.

Thus, unless the trial court has the foresight to predict with confidence that limiting instructions at the penalty phase will suffice to cure any potential prejudice stemming from antagonistic guilt phase defenses and evidence, the court should sever at the guilt phase. Even making the questionable assumption that penalty phase problems originating in the guilt phase can be predicted with accuracy, however, the Court should not lightly conclude that instructions will suffice to cure the prejudice. It is one thing to hold (in a noncapital case) that limiting instructions are sufficient to guide the jury’s "act of analysis" in distinguishing between the guilt or innocence of jointly tried defendants; it is quite another to assume that the same jury is capable of putting aside its recollection of the defendants’ mutual accusations and recriminations once made at the guilt phase when engaging in the subjective "act of conscience," Hopkinson, 781 F.Supp. at 743, of deciding whether either or both -- or which -- of two convicted defendants deserves to die.

"Mutually antagonistic defenses" is only one example of the many types of argument and evidence that may have a differing impact at the guilt and penalty phases. The government’s proposed partial introduction of Mr. Nichols’ statement -- assuming arguendo that the Court finds it admissible in the guilt phase -- represents another example, since Mr. Nichols’ right to place those parts in context by introducing the remainder of the statement would create an insurmountable conflict in the two defendants’ penalty rights even if it passes muster in the guilt phase. Compare Section II.A.5. (discussing problem in penalty phase) with Section I.A.6.b. and c. (same problem in guilt phase). Other categories include inflammatory evidence -- which may be relevant to the guilt or innocence determination but irrelevant (or incidental) and highly prejudicial to the death determination -- and evidence of motive, which may be admissible for very different purposes at the guilt and penalty phases. Both of these types of evidence will be put in evidence in the event of a guilt phase at this trial.

The general point is that before deciding that limiting instructions are an adequate substitute for guilt phase severance under Rule 14, the court must be convinced that these instructions can guarantee that evidence or arguments that are acceptable at the guilt phase, but prejudicial at the penalty phase, will not creep into the jurors’ subjective and emotional penalty phase deliberations about whether the defendant deserves to live or die.

3. Rule 14 should be construed strictly in favor of a capital defendant seeking severance

Because Rule 14 must be construed in pari materia with the Eighth Amendment in a capital case, the requirements of individualized consideration and heightened reliability of verdicts are factors that should weigh heavily whenever a capital defendant moves for severance under Rule 14. Indeed, the core values protected by Rule 14 in a noncapital case already point toward the Eighth Amendment's heightened protections. The Zafiro Court explained these values -- avoiding serious risks to the defendant's "specific trial rights" and the jury's "reliable judgments about guilt or innocence" -- in terms that embody Eighth Amendment concerns in only slightly different language. 506 U.S. at 539. The likelihood of spillover prejudice between the guilt and penalty phases and the difficulty of predicting and curing this spillover with limiting instructions similarly requires special vigilance of a joined capital defendant’s rights. Finally, the Court's open-ended approach to the prejudice inquiry contemplates the possibility of novel claims of prejudice based on unprecedented situations -- including, presumably, the situation of a defendant charged under post-Furman death penalty legislation. See Zafiro, 506 U.S. at 539 (noting that the "risk of prejudice will vary with the facts in each case, and district courts may find prejudice in situations not discussed here").

In a capital case, these considerations tilt the traditional balance among the competing considerations of judicial economy, consistent verdicts, individual rights and accurate judgments of guilt and innocence in a new direction. Given the extraordinary need for individualized consideration and more reliable jury verdicts in capital cases, given the potential prejudicial impact of guilt phase evidence on the ensuing penalty phase, given the uniform criticism which the routine joinder of defendants has been subject to, given the empirical evidence showing that jury confusion and prejudice are highly likely in joint trials, and given the minimal weight of the efficiency rationale where the stakes are a defendant's life, risks to a defendant’s trial rights that might be tolerable in a noncapital case cannot be tolerated where the stakes are death.

a. Joint trial of capital defendants seriously risks the ability of the jury to give each defendant individualized consideration and make reliable judgments about guilt or innocence, and limiting instructions cannot be relied upon to cure the risk of prejudice

Courts have never denied the risks posed to criminal defendants by joint trials. Joint trials significantly increase the opportunities for jury confusion and misunderstanding and create the likelihood of guilt by association. As Justice Jackson observed in his concurrence in Krulewitch v. United States, 336 U.S. 440 (1949), "[a] co-defendant in a conspiracy trial occupies an uneasy seat. There generally will be evidence of wrongdoing by somebody. It is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together." Id., at 454 (Jackson, J., concurring); see also United States v. Mardian, 546 F.2d 973, 977 (D.C. Cir. 1976) ("The 'dangers of transference of guilt' are such that a court should use 'every safeguard to individualize each defendant in his relation to the mass.' . . . . [¶] Particularly where there is a great disparity in the weight of the evidence, strongly establishing the guilt of some defendants, the danger persists that that guilt will improperly 'rub off' on the others") (quoting Kotteakos v. United States, 328 U.S. 750, 774, 773 (1946)); United States v. Tootick, 952 F.2d 1078, 1080 (9th Cir. 1991) (recognizing "some degree of bias inherent in joint trials"); United States v. Marszalkowski, 669 F.2d 655, 660 (11th Cir.), cert. denied, 459 U.S. 906 (1982) ("Inherent in every joint trial is, of necessity, some degree of bias").

In Zafiro the Supreme Court addressed one possible source of prejudice in a joint trial, "mutually antagonistic or irreconcilable defenses," 506 U.S. at 538, and identified others:

Such a risk might occur when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant. For example, evidence of a codefendant's wrongdoing in some circumstances erroneously could lead a jury to conclude that a defendant was guilty. When many defendants are tried together in a complex case and they have markedly different degrees of culpability, this risk of prejudice is heightened. . . . Evidence that is probative of a defendant's guilt but technically admissible only against a codefendant also might present a risk of prejudice. . . . Conversely, a defendant might suffer prejudice if essential exculpatory evidence that would be available to a defendant tried alone were unavailable at a joint trial. Id. at 539 (cites omitted).

Each of these types of prejudice directly threatens a joint capital defendant's right to have the facts of his case considered individually, by "interject[ing] irrelevant considerations into the fact finding process, diverting the jury's attention from the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime." Beck, 447 U.S. at 642.

Of course, the Court also held in Zafiro that the remedy for each of these potential problems was committed to the broad discretion of the trial court, and that "less drastic measures [than severance], such as limiting instructions, often will suffice to cure any risk of prejudice." Id. 506 U.S. at 539. The general rule is that courts presume such instructions to be effective. United States v. Wright, 932 F.2d 868, 876 (10th Cir.), cert. denied, 502 U.S. 962 (1991); United States v. Lane, 883 F.2d 1484, 1498 (10th Cir. 1989), cert. denied, 493 U.S. 1059 (1990).

This presumption is based on a perceived practical necessity, however, and not on a factual conclusion about jurors’ actual abilities to follow such instructions in every instance. "The rule that juries are presumed to follow their instructions is a pragmatic one, rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant in the criminal process." Richardson v. Marsh, 481 U.S. 200, 211 (1987).

Appellate courts acknowledge their lack of "absolute certitude" regarding the efficacy of limiting instructions by holding them to be inadequate protection of a defendant’s trial rights in certain circumstances. See e.g. Bruton v. United States, 391 U.S. 123 (1968); United States v. Butler, 494 F.2d 1246, 1256 (10th Cir. 1974) (reversing conviction for failure to sever defendant involved in only one of three conspiracies proved at trial). Moreover, as the Tenth Circuit has explained, these circumstances are not subject to precise definition. "The point at which an instruction no longer provides adequate protection and a severance must be granted is incapable of precise location. It must be determined in light of the facts of the particular case and with reference to the established rules otherwise governing joinder and severance." Butler, 494 F.2d at 1256.

The question presented in this capital case, therefore, is not whether limiting instructions can be presumed to "work" in some abstract sense, but whether, on the specific facts of this case, such instructions "represent[] a reasonable practical accommodation of the interests of the state and the defendant in the criminal process." Richardson, 481 U.S. at 211. Because this is a capital case, the defendant’s "interests" are defined in part by the Eighth Amendment values discussed above, and the peculiarities of the bifurcated capital trial structure is one of the "practicalities" that must be weighed in the balance. As this suggests, a very different "practical accommodation" of the different interests is required in capital cases. Limiting instructions cannot routinely be relied upon to cure the prejudice inherent in joint capital cases as they are in noncapital cases.

Three additional factors also militate the conclusion that limiting instructions cannot be given their usual deference in a capital case: (1) Even in noncapital cases, the routine reliance on limiting instructions has long been criticized by attorneys, legal academics and social scientists as inadequate protection of joined defendants’ rights; (2) reliance on limiting instructions obstructs the searching appellate review of capital verdicts that is a requirement of the federal death penalty scheme, 18 U.S.C. § 3595, and the Eighth Amendment; and (3) several states, which have far greater experience with capital sentencing regimes than does the federal government, have adopted special severance rights for capital defendants either by legislation or judicial interpretation. We discuss these in turn below.

(1) The presumption that limiting instructions cure the prejudice associated with joint trials has long been questioned even in noncapital cases

"The naive assumption that prejudicial effects can be overcome by instructions to the jury . . . all practicing lawyers know to be unmitigated fiction." Krulewitch v. United States, 336 U.S. 440, 453 (1946) (Jackson, J., concurring). It is a commonplace among practicing lawyers, academics and, occasionally, judges that despite their widespread use and approval, limiting instructions are frequently no more than "recommendation[s] to the jury of a mental gymnastic which is beyond, not only their powers, but anybody else's." Nash v. United States, 54 F.2d 1006, 1007 (2d Cir.), cert. denied, 285 U.S. 556 (1932) (Hand, J.). Since the purpose of limiting instructions is to protect the rights of defendants, moreover, the burden of their failure falls exclusively on the trial rights of defendants. Joinder is therefore almost always considered a boon to the prosecution, a fact that even prosecutors sometimes admit. Cf. Horowitz, Bordens and Feldman, "A Comparison of Verdicts Obtained in Severed and Joined Criminal Trials," 10 J. Applied Social Psychology 444, 446 & 456 n.1 (1980) (discussing joinder of charges) ("Prosecutors will freely admit the joinder of strong and weak cases within a single indictment with the hope that the sheer amount of evidence presented cumulates, yielding a guilty verdict on at least some of the counts") (citing to authors’ personal communication with an Assistant United States Attorney).

Apart from the complaints of trial lawyers, criticism of the routine reliance on limiting instructions has also come from treatise authors, see 1 Wright & Miller, Federal Practice and Procedure: Criminal 2d §223 (1982) (noting that the common interpretation of Rule 14 "points in a direction contrary to that in which many believe the law should go"), drafters of the Uniform Rules of Criminal Procedure, see Uniform Rule of Criminal Procedure 472 (Approved Draft, 1974) (providing for a defendant's right to sever his case unless the court "determines that because of a significant risk that material evidence which cannot otherwise be preserved will be lost, the severance would defeat the ends of justice"), and the legal academy. See e.g. Dawson, "Joint Trials of Defendants in Criminal Cases: An Analysis of the Efficiencies and Prejudices," 77 Mich. L. Rev. 1379, 1381, 1452-55 (1979) (criticizing the "present blind preference for joint trials and the correlative barriers to severance" and suggesting alternatives); Calo, "Joint Trials, Spillover Prejudice, and the Ineffectiveness of a Bare Limiting Instruction," 9 Am. J. Trial Advoc. 21, 30-31 (1985).

Most relevant are the growing number of studies (based on extensive post-trial interviews with capital jurors) demonstrating that capital jurors in particular are often unable to understand and follow the judge’s instructions. Luginbuhl and Howe, "Discretion in Capital Sentencing Instructions: Guided or Misguided?," 70 Ind. L. J. 1161 (1995); Tiersma, "Dictionaries and Death: Do Capital Jurors Understand Mitigation?," 1995 Utah L. Rev. 1 (1995); Eisenberg & Wells, "Deadly Confusion: Juror Confusion in Capital Cases," 79 Cornell L. Rev. 1 (1993); see also Bienan, "Helping Jurors Out: Post-Verdict Debriefing for Jurors in Emotionally Disturbing Trials," 68 Ind. L. J. 1333, 1346-47 (1993) (capital jurors confuse definitions of "mitigating" and "aggravating").

There is also an extensive social science literature on the capacity of jurors to follow judges' instructions to disregard prejudicial or inadmissible evidence, and it is unanimous in finding this capacity to be severely limited. See e.g. Pickman, "Inducing Jurors to Disregard Inadmissible Evidence: A Legal Explanation Does Not Help," 19 Law & Human Behavior 407 (1995); Reifman, et al., "Real Jurors' Understanding of the Law in Real Cases," 16 Law & Human Behavior 539 (1992); Kramer, et al., "Pretrial Publicity, Judicial Remedies, and Jury Bias," 14 Law & Human Behavior 409, 430 (1990) ("Our results are completely consistent with prior research on the ineffectiveness of judicial cautionary instructions. An admonition from the judge to ignore all publicity had no effect on juror or jury verdicts."); see generally Affidavit of Dr. Edward J. Bronson (Exhibit A hereto).

Most of the empirical research has focussed on joinder of criminal charges and not defendants. Nevertheless, this literature strongly supports the notion that jurors are unable to cabin their consideration of evidence in accordance with judicial instructions, since there is a marked tilt toward conviction on charges that are joined as compared to conviction on the same charges when they are severed even where the appropriate limiting instructions are given. Note, "Rethinking Criminal Joinder: An Analysis of the Empirical Research and Its Implications for Justice," 52 Law & Contemporary Problems 325 (1989) (canvassing research and literature); Bordens & Horowitz, "Joinder of Criminal Offenses: A Review of the Legal and Psychological Literature," 9 Law & Human Behavior 339, 340 (1985); Tanford and Penrod, "Social Inference Processes in Juror Judgments of Multiple Offense Trials," 47 J. Personal & Social Psychology 749 (1984); Bordens and Horowitz, "Information Processing in Joined and Severed Trials," 13 J. Applied Social Psychology 351 (1983); Horowitz, Bordens and Feldman, "A Comparison of Verdicts Obtained in Severed and Joined Criminal Trials," 10 J. Applied Social Psychology 444 (1980).

The empirical research that has been performed on the effect of joinder of defendants in capital cases demonstrates a statistically significant increase in the imposition of the death penalty when defendants are joined in the capital sentencing phase. Two recent studies by Professor Edward J. Bronson strongly support this conclusion. Each involved 250-300 participants drawn from California county juror lists and college students, all of whom qualified for jury duty and all of whom were in addition "death-qualified" for the experiments. In both studies the "jurors" were informed that guilty verdicts had been returned against three capital defendants, and were provided with extensive descriptions of a penalty phase in which aggravating and mitigating evidence was presented. Some of the jurors were asked to rule on sentences for all three defendants (modeling a joint penalty phase) and others were given individual defendants to rule on (modeling severed penalty phases). The results showed a statistically significant increase in the decisions to execute in joined penalty phases. Follow-up interviews with the jurors demonstrated other highly prejudicial consequences for joined capital defendants, including a statistically significant difference in the importance jurors appeared to attribute to the mitigating life histories of joined versus severed defendants. See Bronson, "Severance of Co-Defendants in Capital Cases: Some Empirical Evidence," Discussion Paper Series No. 94-1 (Department of Political Science, California State University, Chico) (1994); Affidavit of Dr. Edward J. Bronson (discussing the second study).

These studies relate most directly to the extreme prejudice inherent in joint penalty phases. Nevertheless, it is a short inference from this evidence to the conclusion that jurors who are unable to treat joined defendants individually when making the paramount decision of whether they should live or die are unlikely to be better able to give them individual consideration at the guilt phase.

Together with the consensus among trial lawyers and academics that limiting instructions are not as effective as their routine use warrants, the empirical evidence throws into serious question the continued validity of such routine use in capital cases. If "death is different," then questionable presumptions allowed to pass muster in the noncapital context should not automatically be transposed into a context where the stakes of an unfair trial are so much higher.

(2) Reliance on limiting instructions to cure potential prejudice frustrates the appellate review of capital verdicts required by 18 U.S.C. § 3595 and the Eighth Amendment

The capital sentencing provisions applicable in this case provide for comprehensive appellate review of a death verdict. 18 U.S.C. § 3595. The statute provides that an appeal from a death verdict "shall have priority over all other cases," § 3595(a); that "the court of appeals shall review the entire record in the case, including . . . the evidence submitted during the trial [at the guilt phase]," § 3595(b)(1); and that the reviewing court "shall address all substantive and procedural issues raised on the appeal of a sentence of death, and shall consider whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor." § 3595(c)(1). In other words, the appeals court in a capital case has a special duty to scrutinize the entire record and make an independent determination whether the decision for death was a rational moral judgment or the product of "passion, prejudice or any other arbitrary factor." Id.

Section 3595 is intended to satisfy the Supreme Court’s frequently-stated concern that death verdicts receive "meaningful appellate review" under the Eighth Amendment. "We have emphasized repeatedly the crucial role of meaningful appellate review in ensuring that death penalty is not imposed arbitrarily or irrationally." Parker v. Dugger, 498 U.S. 308, 321 (1991); see also Clemons v. Mississippi, 494 U.S. 738, 749 (1990) ("this Court has repeatedly emphasized that meaningful appellate review of death sentences promotes reliability and consistency"); Pulley v. Harris, 465 U.S. 37, 59 (1984) (Stevens, J., concurring in part and concurring in the judgment) ("in each of the statutory schemes approved in our prior cases, as in the scheme we review today, meaningful appellate review is an indispensable component of the Court’s determination that the State’s capital sentencing procedure is valid"); Zant v. Stephens, 462 U.S. 862, 879-80 & n.19 (1983); Gregg v. Georgia, 428 U.S. 153, 204-206 (1976); Proffitt v. Florida, 428 U.S. 242, 253 (1976); Dobbert v. Florida, 432 U.S. 282, 295-96 (1977); Jurek v. Texas, 428 U.S. 262, 276 (1976); see also United States v. McCullah, 87 F.3d 1136, 1139 (10th Cir. 1996) (denying rehearing en banc) (finding that error was preserved below despite nonspecific nature of the objection in part because "[t]his is a capital case -- failure to say the ‘magic words’ should not result in the affirmance of a death sentence which might not otherwise have been imposed").

"Meaningful review" at the appellate level serves the same Eighth Amendment values that must be respected at the capital trial, individualized consideration and heightened reliability of capital decision making. The Supreme Court has upheld appellate "reweighing" of aggravating and mitigating factors to determine the appropriateness of the death penalty for defendants appealing death verdicts, for example, but only because the Court "conclude[d] that state appellate courts can and do give each defendant an individualized and reliable sentencing determination based on the defendant's circumstances, his background, and the crime." Clemons, 494 U.S. at 749. Such an "individualized and reliable [appellate] sentencing determination" cannot be made, however, unless the appellate court is able to scrutinize the record below as it relates specifically to the individual defendant. "[M]eaningful appellate review requires that the appellate court consider the defendant’s actual record . . . [because] ‘[w]hat is important . . . is an individualized determination on the basis of the character of the individual and the circumstances of the crime.’" Parker, 498 U.S. at 321 (quoting Zant v. Stephens, 462 U.S. 862, 879 (1983)).

Review of a capital defendant’s "actual" individual record is impossible, however, whenever evidence is admitted against one defendant but not the other in a joint capital trial. This is particularly true in cases like this one, in which much of the evidence admissible against only one defendant will be highly inflammatory. Similarly, when a defendant with questionable or minor culpability is joined for trial of a heinous crime with a codefendant against whom there is massive evidence, the question of whether the death verdict was improperly influenced by associational "spillover" prejudice cannot be answered on the individualized basis required in capital cases. In these situations -- both present in this case -- the extent to which the jury’s reasoned moral judgment has been swayed by "the influence of passion, prejudice, or any other arbitrary factor," § 3595(c)(1), cannot be determined, because whether the jury’s decision was based on improper consideration of the inadmissible and prejudicial evidence or other extraneous factors can be no more than a conjecture by the reviewing court. Regardless of whether this conjecture is proper in noncapital cases, see Wright, 932 F.2d at 876 ("‘we presume that the jury was able to follow the court’s instructions and evaluate the evidence against each defendant independently’") (quoting United States v. Badia, 827 F.2d 1458, 1466 (11th Cir. 1987)), it is inconsistent with the dictates of § 3595 and the Eighth Amendment’s concern with "meaningful appellate review" in this capital case. In other words, by its plain terms § 3595 contemplates reversals in situations in which the evidence is sufficient to support the death penalty and no legal error has been made, but the jury’s decision was made "under the influence" of passion or prejudice. It thus codifies the appeal court’s special obligation in a capital case to ensure that the decision for death was the "reasoned moral judgment" required of a capital jury. In reviewing the record of a joint trial at which prejudicial evidence was admitted against only one defendant, or emotionally disturbing facts combined with very different levels of culpability create the likelihood of spillover prejudice, it will be impossible for the appellate court to determine whether or not such improper "influence" has occurred.

Finally, although § 3595 treats appeals from sentencing verdicts and not guilt verdicts, the "passion and prejudice" that it requires the appeals courts to review can have its source in either the guilt phase or the penalty phase. See Section I.B.2. In this case it is clear that many of the problems with inflammatory evidence and differing levels of culpability will arise in the guilt phase, and their prejudicial effects will not be erased from the jurors’ minds in the penalty phase. Id. Thus, the reviewability concerns raised by § 3595 and the Eighth Amendment’s "meaningful appellate review" requirement tilt strongly in favor of severance at the guilt phase as well as the penalty phase.

(3) State courts’ experience with capital trials supports heightened scrutiny of joint capital trials

In deciding how Eighth Amendment considerations should influence the analysis of a federal capital defendant’s severance motion, the comparable practice of the states -- those "laboratories" of federalism, New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) -- is instructive. The constitutional concern for individualized consideration and more reliable fact finding in capital cases is reflected in a number of states’ treatment of the severance issue in their own capital cases, notably in states with large death row populations.

Three states specially grant capital defendants an automatic right to sever their cases from codefendants, or shift the burden of proof in severance motions from the capital defendant to the state, in their rules of criminal procedure. See Ga. Code Ann. § 17-8-4 ("When two or more defendants are jointly indicted for a capital offense, any defendant so electing shall be separately tried unless the state shall waive the death penalty"); Mississippi Uniform Rule of Circuit and County Court Practice 9.04 ("The granting or refusing of severance of defendants in cases not involving the death penalty shall be in the discretion of the trial judge"); Miss. Code Ann. § 99-15-47 ("Any of several persons jointly indicted for a felony may be tried separately on making application therefor, in capital cases"); Ohio Rule of Criminal Procedure 14 ("When two or more persons are jointly indicted for a capital offense, each of such persons shall be tried separately, unless the court orders the defendants to be tried jointly, upon application by the prosecuting attorney or one or more of the defendants, and for good cause shown"); see also Reaves v. Georgia, 242 Ga. 542, 545, 250 S.E.2d 376, 382 (1978) (rejecting an equal protection challenge by noncapital defendants to the special rules for capital defendants); Rigby v. Mississippi, 485 So.2d 1060 (Miss. 1986); Ohio v. Henry, 4 Ohio St.3d 44, 46, 446 N.E.2d 436, 438 (Ohio 1983).

As the Supreme Court of Georgia has explained in connection with its special capital severance rights, "[i]t is too late in the history of capital punishment to argue that trials in which the death penalty is being sought are not different from other trials." Reaves, 242 Ga. at 545, 250 S.E.2d at 382. In agreement with this principle, several courts sitting in jurisdictions that have not legislated special capital severance rights have nevertheless taken judicial cognizance of the need for special caution in the exercise of trial courts’ discretion when a capital defendant requests severance. See e.g. People v. Keenan, 46 Cal.3d 478, 500, 250 Cal.Rptr. 550, 564, 758 P.2d 1081, 1094 (Cal. 1988), cert. denied, 490 U.S. 1012 (1990) (holding that "[s]everance motions in capital cases should receive heightened scrutiny for potential prejudice", but affirming joint trial on facts of the case); State v. Howard, 295 S.C. 462, 473, 369 S.E.2d 132, 138 (1988), cert denied, 490 U.S. 1113 (1989) ("We caution the trial bench when considering a capital defendant's motion to sever that the effect of a joint trial on each defendant at both the guilt and sentencing phases must be considered"); McDaniel v. Arkansas, 278 Ark. 631, 639, 648 S.W.2d 57, 60 (1983) ("[W]here the defenses are antagonistic, particularly in capital cases, careful consideration should be given to all factors which weigh for or against achieving substantial justice"); Lafevers v. Oklahoma, 819 P.2d 1362, 1364-67 (Okl.Cr. 1991) (error to deny severance at both guilt and penalty phases based on mutually antagonistic defenses); see also Day v. Maryland, 196 Md. 384, 391, 76 A.2d 729, 732 (1950) (pre-Furman case granting severance to capital defendant based on mutually antagonistic defenses because of jury’s special role in weighing relative culpability when making death sentencing determination); People v. Smallwood, 42 Cal.3d 415, 430, 722 P.2d 197, 206, 228 Cal.Rptr. 913, 923 (1986) (discussing severance of charges) ("there remains the fact that this case is a capital one, ‘carrying the gravest possible consequences . . . .’ This factor should have prompted the trial court to ‘analyze the severance issue with a higher degree of scrutiny and care than is normally applied in a noncapital case’") (quoting Williams v. Superior Court, 36 Cal.3d 431, 454, 204 Cal.Rptr. 700, 683 P.2d 699, 707 (1984)); North Carolina v. Hucks, 323 N.C. 574, 581-84, 374 S.E.2d 240, 245-47 (1988) (jury instructions unavailing where same jury asked to serve simultaneously as guilt phase jury for defendant and sentencing jury for codefendant who had pleaded guilty).

Still other courts have exhibited a heightened sensitivity to the prejudicial potential of joint capital trials without expressly discussing the significance of the capital nature of the charges. See e.g. Neill v. Oklahoma, 827 P.2d 884, 886-890 (Okl.Cr. 1992) (reversing for failure to sever where mutually antagonistic defenses became apparent at trial); Woodruff v. Oklahoma, 825 P.2d 273, 274-75 (Okl.Cr. 1992) (same); Romano v. Oklahoma, 827 P.2d 1335, 1337-38 (Okl.Cr. 1992) (same). Many of the state cases discussing or exhibiting this heightened sensitivity have focussed on one of the grounds Mr. Nichols advances for severance here, the special problems created when two capital defendants present mutually antagonistic defenses. See e.g. McDaniel, supra; Neill, supra; Woodruff, supra; Romano, supra; Lafevers, supra; Day, supra.

Finally, there are states in which as a matter of common practice capital cases are simply not tried jointly. Johnny Holmes, the District Attorney of Harris County, Texas, for example, recently stated to Dick DeGuerin that he cannot recall a single joint capital trial tried in Texas. While information about prosecutorial and judicial practice is difficult to quantify for obvious reasons, it is significant that a very knowledgeable and active participant in capital proceedings has no recollection of a joint capital trial in a state with among the largest death row populations.

In sum, the basic lesson of twenty years of state courts’ attempts to reconcile the dictates of the Eighth Amendment with the problems arising at joint capital trials is that the requests of capital defendants for severance must receive significantly closer scrutiny and consideration than similar requests of noncapital defendants.

b. The burden should be on the government to prove beyond a reasonable doubt that joint trial of a capital defendant will not "compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence"

Two terms ago the Supreme Court stated that "it is quite consistent with our jurisprudence to give content through a burden of proof to the understanding that fundamental injustice would result from the erroneous conviction and execution of an innocent person." Schlup v. Delo, 115 S.Ct. 851, 866 n.43 (1995). In a capital prosecution of two defendants who are presumed innocent, the burden should be on the government to establish that measures short of a separate trial will be sufficient to eliminate the risks of losing the "specific trial right" to individualized consideration and of an erroneous capital conviction. Zafiro, 506 U.S. at 539.

"The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of fact finding, is to ‘instruct the fact finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’" Addington v. Texas, 441 U.S. 418, 423 (1979) (quoting In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring)). Moreover, "due process places a heightened burden of proof on the State in . . . proceedings in which the ‘individual interests at stake . . . are both ‘particularly important’ and ‘more substantial than mere loss of money.’" Cooper v. Oklahoma, 116 S.Ct. 1373, 1381 (1996) (quoting Santosky v. Kramer, 455 U.S. 745, 756 (1982)).

The "particular importance" of a capital defendant’s interest in life is obvious, and the defendant’s Eighth Amendment interests in individualized consideration and extra-reliable fact finding mandate a far higher "degree of confidence . . . in the correctness of factual conclusions," Addington, 441 U.S. at 423, in capital adjudications than is required of noncapital fact finding. On the other hand, the government’s interests in conducting a joint capital trial are the same as its interests in any other noncapital case -- efficiency and "avoiding the scandal and inequity of inconsistent verdicts." Richardson, 481 U.S. at 210; see also Zafiro, 506 U.S. at 539. Indeed, the government shares the defendant’s interest in accurate fact finding and just verdicts, particularly, one hopes, in a capital case.

The balance of interests arrayed around the severance determination in a capital case therefore tilts decisively in the direction of the extra reliability and individualized consideration provided by separate trials. The fact that "[i]nherent in every joint trial is, of necessity, some degree of bias," Marszalkowski, 669 F.2d at 660, cannot be blithely accepted as a necessary evil when a defendant is to be jointly tried for his life, nor can limiting instructions routinely be deemed a "reasonable practical accommodation of the interests of the state and the defendant in the [capital] criminal process." Richardson, 481 U.S. at 211.

The different balance of interests suggests a different approach to the Rule 14 determination: where a joint capital trial involves one of the circumstances recognized by the Supreme Court as creating a potential for prejudice -- introduction of evidence admissible against less than all defendants, significantly differing degrees of culpability, unavailability of exculpatory evidence, or antagonistic defenses, see Zafiro, 506 U.S. at 539 -- the burden should shift to the government to demonstrate that some remedial measure short of severance is sufficient to guarantee that the risk of prejudice is eliminated.

Because of the inevitability of some prejudice at a joint trial in these circumstances, the government’s position at a joint capital trial where one of these circumstances is present most closely resembles its position when arguing for harmless error on appeal from a conviction. While not precisely identical, in both situations the defendant's interest in fair and accurate trial procedures has been presumptively violated absent the clearest showing that the violation did not in fact prejudice him in any way. Given this similarity and the overriding significance of the capital defendant’s interests in life and individualized consideration, the harmless error burden of proof should also be imposed here. Where a jointly indicted capital defendant moves for severance, the government should have the burden of demonstrating beyond a reasonable doubt that no "specific trial rights" of the capital defendant will be infringed and that nothing that will occur at the joint trial will "prevent the jury from making a reliable judgment about guilt or innocence." Zafiro, 506 U.S. at 539.

This case is among the first to present Rule 14 issues in a post-Furman capital context. The arguments we present, like those in our venue motion, ask this Court to look at old rules in the informing light of new law. There have been relatively few joint federal capital prosecutions in the modern era and, to our knowledge, our argument has not been made in those joint prosecutions which have been brought. Nevertheless, nothing in the text, Advisory Committee Notes or common law background of the rule precludes interpreting it in this manner in the novel context of a joint capital prosecution. Indeed, the pre-Rules cases support stricter scrutiny of capital severance motions, as we have shown above, and even the noncapital authorities speak not at all to the placement of the burden of proof. See Rule 14, Fed. R. Crim. P.; Advisory Committee Note (1944 Adoption); Stilson v. United States, 250 U.S. 583, 585-86 (1919); United States v. Ball, 163 U.S. 662, 672 (1896); United States v. Marchant, 25 U.S. (12 Wheat.) 480, 485 (1827).

It is true that the Supreme Court has recently expressed a "preference" for joint trials of defendants who have been indicted together. Zafiro, 506 U.S. at 537; see also Richardson, 481 U.S. at 209. However, these cases make clear that this "preference" is based, as Justice Scalia has explained, on a "practical accommodation of the interests of the state and the defendant in the [capital] criminal process," Richardson, 481 U.S. at 211, and not on any fixed interpretation of Rule 14 (an interpretation which would run counter both to the common law historical background of the rule and the Supreme Court’s recent emphatic command that criminal procedural rules be interpreted as written, see Carlisle v. United States, 116 S.Ct. 1460 (1996)). Neither Zafiro nor Richardson were capital cases, and they therefore could not and did not address what "practical accommodation" might be acceptable under Rule 14 in a capital case.

For the reasons stated above, this "practical accommodation" should be a presumption of separate trials which may be overcome if the government can show beyond a reasonable doubt that limiting instructions will be sufficient to provide the same protection of the capital defendant’s "specific trial rights" and right to have the jury make a "reliable judgment about guilt or innocence," Zafiro, 506 U.S. at 539, that would be provided by a severance. That burden cannot be met here. See Section I.A., supra.

c. In the alternative, even if the burden is not placed on the government, the Court should exercise its discretion with particular caution to ensure that a capital defendant's trial rights are not compromised and that the jury will be capable of making a truly reliable judgment about guilt or innocence in a joint trial

Regardless of whether the burden is placed on the government or Mr. Nichols, it is clear that the foregoing considerations mandate that the Court exercise its discretion to sever with special care in this capital case.

The doctrinal linchpin of the vast number of appellate decisions affirming denials of defendants’ motions to sever is the very broad discretion afforded to trial courts to fashion the appropriate remedy under Rule 14 where it "appears that a defendant . . . is prejudiced by a joinder." From the early years of the Republic, this discretion was understood to include a special solicitousness where a joined defendant’s life was at stake. See United States v. Matthews, 26 F.Cas. 1205, 1206 (C.C. S.D.N.Y. 1843) (Betts, J.) ("In a capital case, and in favor of life, I am disposed to secure every protection to the prisoner against the influence of testimony not strictly applicable to him, and shall therefore order trial of the [capital] prisoner Brown, on his plea, to be separated from that of his associates"). Even the Supreme Court’s recent pronouncement of a "preference" for joint trials, Zafiro, 506 U.S. at 537, must be read in connection with its simultaneous acknowledgment of the various situations that do pose a cognizable risk of prejudice in a joint trial, and its reaffirmation of the principle that in these situations Rule 14 "leaves the tailoring of the relief to be granted, if any, to the district court’s sound discretion." Id. at 539. Again, it is relevant here as well that the Court explicitly recognized the open-ended nature of the Rule 14 "prejudice" inquiry. Id.

Accordingly, it is entirely appropriate for this Court to take the capital context of this case -- including both the Eighth Amendment values and potential conflict between the goals of the guilt and penalty phases discussed previously -- into account in exercising its discretion to grant a capital defendant’s severance motion. Even if the burden is placed on Mr. Nichols, when these capital considerations are added to the specific forms of prejudice certain to arise in this case, see Section I.A., supra, it is clear that severance is required.

C. In the circumstances of this case a joint trial would violate Mr. Nichols’ Eighth Amendment rights

We explained previously that the Eighth Amendment’s requirements of individualized consideration and heightened reliability in fact finding applies to the guilt phase of trial as well as the penalty phase. Section I.B.1., supra. This means that in at least some situations the prejudice attending a joint trial of capital defendants will render the proceeding inconsistent with the Eighth Amendment, cf. United States v. Tipton, 90 F.3d 861, 1996 WL 377046, at *29 (4th Cir. July 8, 1996) (Eighth Amendment imposes constraints on severance decision at penalty phase), and arguably the Due Process Clause as well. See Brinkman, Note, "The Presumption of Life: A Starting Point for a Due Process Analysis of Capital Sentencing," 94 Yale L. J. 351 (1984) (arguing for a Due Process Clause approach to capital sentencing issues as an alternative to the Furman Eighth Amendment analysis). The doctrine of "in favorem vitae" discussed previously was sufficiently entrenched in the common law understanding at the founding that it is reasonable to assume that the authors of the Due Process Clause understood "due process" to incorporate this basic principle of fairness. See Matthews, 26 F.Cas. at 1206; see also authorities cited at pages - , supra.

Assuming arguendo that a constitutionally fair joint trial of capital defendants is possible in principle, it is clear that this is not such a case. The many forms of potential prejudice identified above -- arising from mutually antagonistic defenses; the introduction of inflammatory evidence inadmissible as to Mr. Nichols; different levels of culpability; the likelihood of prejudicial jury confusion arising from their subtly different political views; the likely inadmissibility of some of Mr. McVeigh’s statements to Michael Fortier about Mr. Nichols; and the Bruton problem and the related conflicts between Mr. Nichols’ right to introduce his entire statement if the government seeks to use any part of it at trial and Mr. McVeigh’s Confrontation Clause rights, see Sections I.A.1.-6., supra -- virtually guarantee that the jury will be prevented from providing Mr. Nichols with the individualized consideration and reliable verdict required by the Constitution. Nor can limiting instructions be relied upon to avoid constitutional prejudice to the same degree as they can in a noncapital case. Section I.B.3.a.(1), supra. If the joint trial results in a capital conviction, appellate scrutiny to determine whether the likelihood of prejudice was realized will be stymied. Section I.B.3.a.(2).

Thus, beyond his statutory right to severance, in these circumstances a joint trial will violate Mr. Nichols’ Eighth Amendment rights as well.

D. In the alternative, the Court should empanel dual juries to hear each defendant’s case individually

If the Court does not find guilt phase severance appropriate on the preceding grounds, we request that it empanel dual juries to hear the two defendants’ case simultaneously, except when evidence admissible against only one of the two defendants is being introduced. The use of dual juries in federal criminal cases have been sustained by appellate courts, albeit with some hesitation. See e.g. United States v. Lebron-Gonzalez, 816 F.2d 823 (1st Cir.), cert. denied, 484 U.S. 843 (1987); United States v. Lewis, 716 F.2d 16 (D.C. Cir.), cert. denied, 464 U.S. 996 (1983); United States v. Rimar, 558 F.2d 1271 (6th Cir. 1977), cert. denied, 434 U.S. 984 (1977); United States v. Hayes, 676 F.2d 1359 (11th Cir.), cert. denied, 459 U.S. 1040 (1982); see generally Annotation, "Propriety of Use of Multiple Juries at Joint Trial of Multiple Defendants in Federal Criminal Case," 72 A.L.R. Fed. 875 (1985).

Whatever the potential for jury confusion and prejudice that attends a joint prosecution tried before dual juries, it is still less than the jury confusion and prejudice that will result if this case is tried jointly before one jury. Accordingly, we request in the alternative that dual juries be empaneled.

We have already identified some of the guilt phase factors which may so prejudice any ensuing penalty phase in this case that guilt phase severance is the only realistic protection for Mr. Nichols' penalty phase rights. See Section I.B.2. (discussing problem of prejudicial "spillover" between guilt and penalty phases). The scope and quantity of potentially prejudicial evidence and antagonism that will be introduced at the guilt phase, however, pales in comparison to what is certain to occur at a joint penalty phase. Accordingly, if severance is not granted at the guilt phase, it should be granted at the penalty phase and sentencing hearings should be held before separate juries.

This Court has well described the fundamental difference between the guilt and penalty phases: "A guilty or not guilty verdict is an act of analysis. A penalty verdict of life or death is an act of conscience." Hopkinson, 781 F.Supp. at 743. Unlike the guilt phase verdict, the life-or-death decision made in the penalty phase is a moral judgment about the intrinsic worth of a specific human life, a decision, as the Supreme Court has emphasized repeatedly, that can only be made on the basis of the most individualized scrutiny of the particulars of that life.

The potential risks to a fair trial identified in the preceding sections are maximized in this delicate context, for two reasons. First, there is an inherent tension between the highly individualized consideration of each defendant required in the penalty phase on one hand and a joint hearing's unavoidable tendency toward amalgamation and/or comparison of the defendants' situations in the minds of jurors on the other. The result is a series of conflicts, some of which we discuss below, pitting one defendant's constitutional and statutory rights against the right of the codefendant to individualized treatment by the sentencer.

Second, because the relevant facts to be litigated and decided in a capital sentencing hearing are potentially numberless, the issues before the sentencer are exponentially more complex than at the guilt phase and the opportunity for prejudicial error that much greater. See McCleskey v. Kemp, 481 U.S. 279, 294 (1987) ("the Constitution requires that [the jury's capital sentencing] decision rest on innumerable factors that vary according to the characteristics of the individual defendant and the facts of the particular capital offense"); California v. Ramos, 463 U.S. 992, 1008 (1983) (referring to the "myriad of factors" which determine sentencer's on choice between life and death); Zant v. Stephens, 462 U.S. 862, 900 (1983) (Rehnquist, J., concurring) (citing "the countless considerations" weighed by capital sentencing authorities). Especially when it is kept in mind that these factors do not admit of the rational categorical analysis appropriate when guilt or innocence are determined, Hopkinson, supra, it is clear that limiting instructions cannot be relied upon to the same extent to guide the jurors' "act of conscience" at the penalty phase as they can at the guilt phase.

Against these considerations, concerns about the efficient allocation of government resources are at a minimum in a proceeding whose sole purpose is to pass life-or-death judgment on a person. As the Fourth Circuit recently put it, "More important of course than any consideration of inconvenience or possible unfairness to the Government from sequential separate trials are the possibilities of unfairness to the accused persons from a joint penalty-phase trial -- specifically the threat posed to individualized consideration of their situations, and in particular the quite different mitigating factors relevant to each." United States v. Tipton, 90 F.3d 861, ---, 1996 WL 377046, at *29 (4th Cir. July 8, 1996). Tipton does not control here, given the fact-specific nature of the decision and the far different circumstances presented in this case. Two other aspects of the decision deserve comment, however. First, it appears that the court did not consider total severance and hearings before different juries to be a possible remedy, since it discusses only the difficulties with seriatim penalty phases, id., despite the clear authority of the district court to specially empanel a new penalty phase jury where "the jury that determined the defendant’s guilt was discharged for good cause." 18 U.S.C. § 3593(b)(2)(C). Second, the court placed undue reliance on the efficacy of limiting instructions to cure any resulting prejudice. Id. at 30 ("We are entitled, in the absence of directly negating evidence, to presume that the jury heard, understood, and did follow these instructions"). For the reasons set forth in preceding sections, this presumption is unwarranted in capital cases.

Together these considerations would make any joint penalty hearing a morass of potential unfairness and prejudicial error. Regardless of whether a fair joint death-sentencing proceeding could ever be held, however -- a question that the Court is not called upon to answer here -- it is abundantly clear in this case that the mutual antagonism of the defendants (which will only be heightened in the penalty phase), the prejudicial evidence that will be entered against Mr. McVeigh, the existence of a statement by Mr. Nichols implicating Mr. McVeigh in the crime, and the political overtones of the government's prosecution theory combine to make it impossible to protect Mr. Nichols' "specific trial rights" and his paramount right to a reliable, individualized sentencing verdict, Zafiro, 506 U.S. at 539, at a joint penalty phase. See Section II.A., infra.

Moreover, these rights cannot be protected by seriatim penalty proceedings before the same jury -- a procedure that is likely to exacerbate rather than relieve the prejudice. Accordingly, Mr. Nichols' penalty phases, if any, should be held before a different jury than the one that hears Mr. McVeigh's sentencing case. Section II.B., infra.

A. A joint penalty phase would violate Mr. Nichols' constitutional rights

1. The defendants' mutually antagonistic penalty phase defenses make a fair joint penalty phase an impossibility

We argued in Point I that the mutual antagonism between the defenses of the two defendants makes a fair guilt phase impossible in this case. It is even more clear that the antagonism makes a fair penalty phase impossible.

Indeed, unlike in a joint guilt phase, potentially prejudicial antagonism is inherent in the very fact of a joint penalty phase. In a joint penalty phase, the jury's verdict is no longer dependent on a categorical finding of guilt, but on, among other factors, an evaluation of each defendant's degree of "relative participation" in the offense. See 18 U.S.C. § 3592(a)(3) (requiring jury to consider in mitigation whether "the defendant's participation [in the crime] was relatively minor, regardless of whether the participation was so minor as to constitute a defense to the charge"); see also Lafevers v. Oklahoma, 819 P.2d 1362, 1367 (Okl.Cr. 1991) ("[u]nlike the first stage of a bifurcated trial, in the second stage [relative] culpability of the defendant is a critical issue"); Day v. Maryland, 196 Md. 384, 391-92, 76 A.2d 729, 732 (1950) (discussing difference between culpability determination in two phases). The verdict also depends in part on the consistency and fairness of imposing the death sentence on the defendant in light of the sentences imposed on other participants in the same crime. 18 U.S.C. § 3592(a)(4) (requiring jury to consider in mitigation whether "[a]nother defendant or defendants, equally culpable in the crime, will not be punished by death").

Because these mitigating factors are implicitly or explicitly comparative, competition between capital defendants is built into a joint penalty proceeding. In this case, for example, if Mr. Nichols is convicted of the capital crime, it will be his constitutional and statutory right to argue in mitigation that he played no more than a very minor role in the crime and that he is by no account as "equally culpable" as Mr. McVeigh. These arguments will, of necessity, involve proof of Mr. McVeigh's major role in the bombing and of his far greater culpability. Mr. Nichols, in other words, will quite certainly become a "second prosecutor" of Mr. McVeigh in the penalty phase, and it can be anticipated that Mr. McVeigh will seek to minimize his own role and culpability by the same means against Mr. Nichols.

The prospect of two defendants dropped into the penalty phase arena for a (literal) fight to the death is disturbing enough. It is made more disturbing, however, by the significant constraints on the Court's ability to control the resulting prejudice. Capital defendants have a constitutional right to present any and all relevant mitigating evidence to the sentencing jury, Lockett, supra; Eddings, supra, and the greater participation and culpability of the other defendant constitute such mitigating evidence. 18 U.S.C. § 3592(a)(3), (4). Furthermore, the Rules of Evidence do not apply at the penalty phase. § 3593(c). While the Court retains latitude to control the introduction of unduly prejudicial or confusing "information," id., the additional Eighth Amendment dimension when a codefendant is presenting his mitigation case means that this latitude is more cabined during the defense cases. See id. ("The defendant may present any information relevant to a mitigating factor") (emphasis added). Mr. Nichols has a constitutional right, for example, to introduce Mr. McVeigh’s admissions to the Fortiers, and arguably his other written statements as well even if they are deemed to be hearsay as to him. Green v. Georgia, 442 U.S. 95, 97 (1979) (per curiam) (capital defendant had right to introduce codefendant’s confession in mitigation even though inadmissible under state hearsay rules).

The net result is that the Court's penalty phase evidentiary rulings must attempt to thread their way between the prejudicial introduction of inculpatory evidence by Mr. Nichols against Mr. McVeigh on one side and the prejudicial denial of Mr. Nichols' right to make his mitigation case on the other (and likewise for Mr. McVeigh's case against Mr. Nichols as well). Even assuming arguendo that rulings which pay sufficient respect to both horns of this dilemma will be possible -- a proposition which is far from clear, and which cannot be predicted in advance of the penalty hearing itself -- the likelihood of prejudicial error in these circumstances is obviously great.

Accordingly, even more than at the guilt phase, the mutually antagonistic positions of the two defendants at the penalty phase create a certainty of prejudice and mandate severance.

2. The defendants' antagonistic defenses create a conflict between each defendant's due process rights to notice and a meaningful opportunity to rebut the information used to sentence him to death and the other’s right not to disclose his penalty phase strategy to their adversaries until trial

One of the most consistent threads of the Supreme Court's constitutional jurisprudence of capital punishment is "the elemental due process requirement that a defendant not be sentenced to death 'on the basis of information which he had no opportunity to deny or explain.'" Skipper v. South Carolina, 476 U.S. 1, 5 n. 1 (1986) (quoting Gardner v. Florida, 430 U.S. 349, 362 (1977)). This requirement has been applied to strike down death sentences imposed after the prisoner was denied fair notice of the facts used to sentence him to death, Gardner, supra, or of the issues which he would be expected to meet at the penalty hearing. Lankford v. Idaho, 500 U.S. 110 (1991). Congress has codified the constitutional right to notice in the requirement of 18 U.S.C. § 3593(a) that the Government provide written pretrial notice of both the statutory and nonstatutory aggravating factors upon which it intends to rely as the basis for a sentence of death. See also 18 U.S.C. § 3432 (capital defendant has right to list of witnesses's names and addresses at least three days prior to trial).

However, no such notice provisions exist to ensure that a capital defendant will have a fair opportunity to investigate and rebut the harmful information placed before the sentencing jury by his codefendant. And because such evidence will be propounded by defendants on trial for their own lives and unconstrained by the rules of prosecutorial ethics which are supposed to limit the adversarial zeal of the government's attorneys, see Berger v. United States, 295 U.S. 78 (1935), there is an especially grave risk that harmful evidence from the codefendants will be injected into the decision-making process without being subjected to "the adversarial testing process" upon which our system of justice relies "to produce a just result under the standards governing decision." Strickland v. Washington, 466 U.S. 668, 687 (1984). Commonwealth v. Foster, 827 S.W.2d 670, 680-682 (Ky. 1991), cert. denied, 506 U.S. 921 (1992) (reversing death sentence imposed at joint penalty phase hearing where co-defendant's counsel "act[ed] as a second prosecutor" in pursuing claim of duress, and supported his client's case in mitigation by prejudicial allegations concerning defendant).

On the other hand, there is no authority for requiring a capital defendant to disclose his penalty phase defense prior to trial, and indeed to require such disclosure would implicate the defendant's Sixth and Eighth Amendment rights to make a capital defense. Accordingly, there is a conflict between these rights that cannot be resolved by measures short of severance.

3. There is a serious risk that there will be a prejudicial conflict between Mr. Nichols' and Mr. McVeigh's theories of mitigation

Many mitigating factors are inherently inconsistent with others, and, as a result, a jury required simultaneously to weigh inconsistent theories of mitigation offered on behalf of two codefendants is unlikely to be able to accord both codefendants the individualized consideration required by the Eighth Amendment.

For example, one defendant may offer evidence that prior to the present offense he worked steadily at gainful employment, and that he has a stable and loving family with parents, a spouse and children who describe his otherwise exemplary life. In this case the jury is being asked to look to the future, to the defendant’s likely reform and the contributions he may yet make to his family. The same jury is then asked to consider, also in mitigation of punishment, evidence that the second defendant has suffered childhood abuse or an organic brain impairment which has left him chronically paranoid, socially isolated, unemployable, and subject to intermittent explosive outbursts of rage and physical aggression. The jury in the second defendant’s case is asked to look to the past, to the defendant’s prior life-experiences that might make his act understandable. The first defendant presents evidence tending to show that he will likely prove a model inmate if sent to prison instead of executed; the second defendant's history of abuse or neurological impairment makes his past and likely future prison behavior problematic.

Such starkly contrasting mitigation cases are likely in this case in the event of capital convictions, and the potential for jury confusion is apparent. The jurors are instructed to seriously consider, and sympathize with if they can, factors relevant to each defendant that -- if in fact they are considered mitigating to the defendant -- necessarily puts the other defendant in a bad light. To the extent that the jury actually accords substantial mitigating weight to the first defendant's evidence, the second defendant's case in mitigation will be correspondingly weakened, and may even become transmogrified into evidence justifying a sentence of death. Conversely, if the second defendant’s plight arouses the jury’s sympathy, that may well bias the jury against the first who -- on this theory of mitigation -- appears to have no excuse for his conduct.

Moreover, the likelihood of confusion is significantly compounded by the structure of the guilt phase deliberations, which requires each juror to vote as mitigating any factor that she individually finds to be mitigating. 18 U.S.C. §3593(d). Individual jurors will therefore be asked to consider and vote for conflicting and even contradictory factors as to each defendant in mitigation. Instructions to keep each factor separate as to each defendant will be entirely unavailing.

Under the Eighth Amendment and the capital sentencing scheme created by Congress in 18 U.S.C. § 3591 et seq., a defendant's abusive childhood or psychiatric impairments are factors to be considered in mitigation, not in aggravation, and the fact that these disabilities may render the defendant more likely to pose a risk of violence in the future may not be used by a capital sentencing jury to place those impairments on death's side of the scale. Zant v. Stephens, 462 U.S. 862, 885 (1983) (suggesting that eighth amendment would be violated by attachment of "'aggravating' label" to factors "that actually should militate in favor of a lesser penalty, such as perhaps the defendant's mental illness"). But when counsel for a capital codefendant at a joint hearing stresses his own client's mental stability in order to reassure the jury concerning his future behavior if spared, there arises a constitutionally unacceptable risk that the jury will impose death on the codefendant "despite the existence of factors which may call for a less severe penalty." Lockett v. Ohio, 438 U.S. 586, 605 (1978). Likewise, the failure of a defendant to have his parents testify on his behalf may be perceived as aggravating, or even damning, if the other codefendant's parents testify for their son -- although the absence of the first defendant's family may actually reflect facts about his emotionally impoverished background that should be given weight in mitigation, not aggravation. Eddings, supra. In each case, the problem is that evidence which the constitution requires to be considered on the side of life is undermined or even metamorphosed into evidence for death by irrelevant and arbitrary comparison with the mitigating evidence offered on behalf of the codefendant.

4. There is an irresolvable conflict between the defendants' right to argue the § 3592(a)(3) and (4) mitigation factors and their Eighth Amendment right to individualized consideration

Prejudicially inconsistent mitigating cases is but one example of the general problem of invidious comparisons in capital sentencing proceedings. These problems are significantly exacerbated by the defendants’ right to argue the comparative (a)(3) and (a)(4) mitigation factors, which by their terms require comparative judgments be made.

Inasmuch as Congress limited the effect of these factors to the mitigation side of the sentencing calculus, it is clear as a matter of statutory construction (as well as of constitutional law) that neither a lesser degree of participation by a codefendant nor a death-sentenced codefendant's equal culpability can be treated as a factor in aggravation of punishment. Congress made clear that the (a)(3) and (a)(4) mitigating factors are included in the statute to benefit capital defendants, not to help the Government secure more death sentences in pursuit of a false consistency. The evident purpose of these factors is to allow the jury to guarantee a measure of fairness and consistency where the Government has plea-bargained with equally culpable codefendants, as well as to avoid "the scandal and inequity of inconsistent verdicts," Richardson, 481 U.S. at 210, resulting from the idiosyncrasies the government’s plea-bargaining decisions.

However, when these factors are injected into multi-defendant jury sentencing deliberations, they create a potential for prejudice that Congress never intended and the Eighth Amendment forbids, by turning mitigating characteristics of one defendant into de facto aggravators for the other.

First, the presence of the (a)(3) and (a)(4) factors in the sentencing calculus virtually guarantees that the jury will compare and contrast both the mitigating and aggravating factors present as to each defendant in arriving at sentencing decisions for both of them. In the event of a penalty phase in this case, for example, it is highly likely that the jury would find that one defendant's participation in the offense is less than the other’s. If the jury then decides that that defendant's "participation" is "relatively minor" within the meaning of § 3592(a)(3), it is significantly less likely that the jury will conclude that the other's participation -- which was more extensive -- was also "relatively minor," even though that is a possibility in this case.

Similarly, the much broader injunction of § 3592(a)(4) to consider the "equal culpability" of each defendant -- which includes the likelihood of future dangerousness, moral desert, life history and other factors unrelated to the crime itself -- ensures that any potential conflict between theories of mitigation will become actual and prejudicial. Even if one were to indulge the unrealistic assumption that a jury can compartmentalize the evidence in mitigation for each defendant so as to give mitigating weight both to the presence and absence of violence-inducing mental illness, the presence and absence of strong and loving families, the presence and absence of crimogenic influences in the defendants' respective backgrounds, and so on, see Section II.A.3., infra, such compartmentalization will crumble once the (a)(4) factor enters the jury's deliberations. At that point (and realistically, the factor may be expected to pervade the jury's deliberations throughout), the jury will be invited to choose which mitigating factors are "really" mitigating, and which should be minimized -- or even treated as aggravating -- in order to provide the intra-case sentencing consistency which the (a)(4) factor seeks.

The invidiousness of this compare-and-contrast approach to mitigating factors at a joint sentencing hearing is increased by the "either/or" decision before the jury. The fact that the jury has before it a stark life or imprisonment choice for two different codefendants creates the risk that the jury will tend to conflate the full range of mitigation and moral desert into a simple either/or framework. The jury is likely to ask not whether Mr. Nichols deserves death or life, but whether he deserves greater, lesser or equal punishment as Mr. McVeigh.

This can distort the jury's sentencing decisions in either one or both of two different ways. First, it can skew the jury's determination of whether either of the defendants deserve death: the likelihood of an affirmative answer to that question will be capriciously increased by joinder whenever a single jury is required to fashion appropriate sentences for two defendants with differing culpability. Once the jury concludes that it would not be fair to sentence the less culpable defendant to the same punishment as the more culpable defendant, a powerful but legally extraneous reason to impose a death sentence on the more culpable defendant is introduced into the jury's deliberations.

Second, multiple-defendant jury sentencing risks another decisional process which might be called "bootstrapping for death." This occurs once the jury decides to sentence the first codefendant to death: that codefendant's case then becomes a benchmark for death against which the other's is measured. And if this happens, the subsequent defendant can avert death for himself only by establishing that the difference between the death-sentenced defendant's culpability and his own is large enough to take him out of the now-determined "death" range. If he cannot establish a sufficiently dramatic difference between the death-sentenced defendant's case and his own, the jury can be expected (with impetus from the (a)(4) factor) "to feed him from the same spoon," and in the process to deny his eighth amendment right to individualized and untrammeled consideration of his own culpability.

Finally, the very difficulty of comparing two defendants' relative culpability as required by § 3592(a)(4) introduces an impermissibly arbitrary factor into the death-sentencing balance. The difficult factual and moral questions posed by the issue of "equal culpability" is most easily resolved by sentencing both defendants to death, which removes the obligation of the jury to consider the (a)(4) factor by ensuring that there is no other "defendant . . . [who] will not be punished by death." § 3592(a)(4). It could not have been the intent of Congress, in engrafting the (a)(4) mitigating factor onto the federal capital sentencing scheme, to encumber the decision to impose life by requiring the jury to justify any sentencing disparity before it could show mercy to a particular defendant. See Beck v. Alabama, 447 U.S. 625, 640 (1980) (due process violated by withholding lesser included offenses from capital juries: contrived "all or nothing" choice at guilt phase impermissibly increases risk of wrongful conviction).

This is not what Congress intended, and it is not what the eighth amendment demands. The sentence to be imposed on one capital defendant has absolutely nothing to do with the moral culpability of any other defendant, and while such considerations may operate (for reasons quite apart from the defendant's own moral desert) to militate against the death penalty under some circumstances, 18 U.S.C. § 3592(a)(3), (4), they may never play any part in deciding which defendants should be sentenced to death and executed.

5. Mr. McVeigh's Confrontation Clause rights will conflict with Mr. Nichols' Eighth Amendment rights at a joint penalty hearing

We explained above that the government’s proposed use of certain statements from Mr. Nichols’ statement creates a Bruton problem that requires severance or forgoing use of the statements. Section I.A.6.a., supra. In the alternative, we demonstrated that Mr. Nichols will be permitted to use other parts of the statement, not introduced by the government, which will again implicate Mr. McVeigh’s Confrontation Clause rights in a manner that requires severance. Sections I.A.6.b. and c., supra. Even if the Court disagrees and finds that these dilemmas do not require the government to choose between severance or forgoing use of the statement at the guilt phase, at the penalty phase the dilemmas creates an even more serious conflict between Mr. Nichols’ Eighth Amendment rights and Mr. McVeigh’s Confrontation Clause rights requiring severance at that stage.

The parts of Mr. Nichols’ April 21, 1995 statement omitted by the government include numerous statements that exculpate Mr. Nichols and inculpate Mr. McVeigh, often at the same time. Assuming arguendo that omission of these statements is found not to "distort[] the meaning of the statement or exclude[] information substantially exculpatory of the declarant" at the guilt phase, Kaminski, 692 F.2d at 522, when the issues before the jury shift from relatively straightforward questions of guilt or innocence to the countless gradations of moral culpability which must be made at the sentencing phase, the same omissions will turn out to be highly prejudicial to Mr. Nichols. When presented in full, the statement furnishes proof that Mr. Nichols was either unaware of Mr. McVeigh’s criminal intent or, if aware, at the very least that Mr. Nichols acted entirely at the urging and behest of Mr. McVeigh, who took the lead in perpetrating the crime. The statement thus strongly supports the mitigating consideration that Mr. Nichols’ "participation was relatively minor, regardless of whether the participation was so minor as to constitute a defense to the charge" as well as his lesser culpability. 18 U.S.C. §§ 3593(a)(3), (4).

In State v. Howard, 295 S.C. 462, 369 S.E.2d 132 (1988), cert. denied, 490 U.S. 1113 (1989), the trial court was found to have violated the defendant's Eighth Amendment rights to present mitigating evidence when it redacted references in his confession to the allegedly dominant role of his codefendant. Reversing the first defendant's death sentence, the South Carolina Supreme Court concluded that the exclusion of references to domination by the codefendant had undermined his case in mitigation, and concluded by "caution[ing] the trial bench when considering a capital defendant's motion to sever that the effect of a joint trial on each defendant at both the guilt and sentencing phases must be considered." 369 S.E.2d at 138. As here, the conflict between the defendants’ constitutional rights arose in Howard because introduction of the unedited statement by the government would have violated the codefendant’s constitutional right to confront the witnesses against him.

It would therefore violate Mr. Nichols’ Eighth Amendment and due process rights to permit the government to introduce the statement or mention it (assuming it was previously entered in its edited form at the guilt phase) at the penalty phase as aggravating evidence against Mr. Nichols or Mr. McVeigh without also entering the omitted parts of the statement in mitigation of Mr. Nichols’ role.

Entering the full statement, however, would once again run afoul of Mr. McVeigh’s Confrontation Clause rights. Since there is no solution to the problem that adequately protects both Mr. Nichols and Mr. McVeigh’s rights, severance is required.

6. There is a serious risk that Mr. Nichols' and Mr. McVeigh's Fifth Amendment right against self-incrimination will conflict with the other defendant’s Eighth Amendment and allocution rights

It is settled that a capital defendant must be permitted to offer in mitigation of punishment, and the sentencer must consider, such factors as his post-crime cooperation with law enforcement and his expressed remorse before and during the trial or sentencing proceedings. See Gregg v. Georgia, 428 U.S. 153, 197 (1976) (listing the extent of the defendant's co-operation with law enforcement as an example of a mitigating factor), cf. Minnick v. Mississippi, 498 U.S. 146, 167 (1990) (Scalia, J., dissenting) ("A confession is rightly regarded by the [federal] sentencing guidelines as warranting a reduction of sentence, because it 'demonstrates a recognition and affirmative acceptance of personal responsibility for . . . criminal conduct' . . . which is the beginning of reform." (citation omitted)). The comparative § 3592(a)(4) factor raises the substantial likelihood that in according mitigating weight to one defendant's voluntary self-incrimination and expressions of remorse, the jury will at the same time treat as aggravating the failure of his codefendant or codefendants to produce similar evidence in mitigation.

However, the Fifth Amendment right against compelled self-incrimination applies with undiminished force to the penalty phase of a capital case. Estelle v. Smith, 451 U.S. 454 (1981). Thus any adverse consideration by a sentencing jury of a capital defendant's failure to incriminate himself -- whether by cooperating with the police investigation, confessing to his role in the offenses charged, or expressing remorse either before or after conviction -- would violate that defendant's Fifth Amendment rights, Carter v. Kentucky, 450 U.S. 288 (1981), Griffin v. California, 380 U.S. 609 (1965), and by extension his Eighth Amendment rights as well. Zant v. Stephens, 462 U.S. 862, 885 (1983) (suggesting that eighth amendment violated by state's attachment of "aggravating" label to defendant's assertion of constitutional right); Dawson v. Delaware, 503 U.S. 159 (1992) (capital sentencer's consideration, as nonstatutory aggravating factor, of irrelevant evidence concerning defendant's constitutionally-protected association violated due process).

This conflict between the Fifth and Eighth Amendment rights of capital codefendant is particularly difficult to cure because the trial court typically will be unable to foresee it prior to trial or resolve it by instructions. The conflict is unforeseeable prior to trial because a defendant may not be required to decide whether or not to testify until the close of the defense case. Brooks v. Tennessee, 406 U.S. 605, 610-11 (1972). Indeed, one of the reasons for a bifurcated sentencing proceeding is to permit a defendant to assert his constitutional right to remain silent with respect to his guilt or innocence, and yet to express remorse or contrition for his crime at the sentencing hearing after conviction.

Just as the Court may not predict before trial how both the presence and the absence of codefendants' remorse, cooperation and voluntary self-incrimination may enter into a joint jury sentencing trial, neither will limiting instructions be an option to safeguard the Fifth Amendment rights of the silent codefendants. For the Court cannot tell the jury to disregard the fact that one defendant exercised his Fifth Amendment right to remain silent throughout the pretrial, trial and sentencing stages of the proceedings, as required by Carter v. Kentucky, supra, Bruno v. United States, 308 U.S. 287 (1939), and 18 U.S.C. § 1381, without threatening the codefendant's Lockett right to have his waiver of his Fifth Amendment rights considered in mitigation of his punishment. If a defendant's willingness to waive his rights against self-incrimination is logically relevant to the sentence he should receive, then a codefendant's unwillingness to make a similar waiver is relevant to the question of whether the other defendant is "equally culpable" within the meaning of § 3592(a)(4). The Court cannot by instructions deny the probative significance of the latter without nullifying the significance of the former as well. Severance of the defendants' capital sentencing hearings is the only remedy available to resolve this conflict between constitutional rights.

There is, in addition, a related conflict between the defendants’ Fifth Amendment rights and their separate right to allocute prior to being sentenced. "The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself." Green v. United States, 365 U.S. 301, 304 (1961) (plurality opinion) (Frankfurter, J.). Accordingly, a criminal defendant has a constitutional right to personally address the fact finder who will pass sentence on him. Boardman v. Estelle, 957 F.2d 1523, 1530 (9th Cir.), cert. denied, 506 U.S. 904 (1992); see also Ashe v. North Carolina, 586 F.2d 334, 336 (4th Cir. 1978), cert. denied, 441 U.S. 966 (1979); United States v. Jackson, 923 F.2d 1494, 1496 (11th Cir. 1991).

To the extent that one defendant testifies and the other chooses instead to allocute, there is a distinct danger that one choice will suffer by comparison with the other -- either the defendant who subjects himself to cross-examination will appear the more remorseful (or more truthful) than the one who does not, or the cross-examination of the defendant will be sufficiently damaging that the defendant who allocutes will have the comparative advantage. In either case, a defendant’s Fifth Amendment right, allocution right and/or Eighth Amendment right to individualized consideration will be prejudiced.

7. The evidence linking Mr. McVeigh to [UNDER SEAL] will have an extremely prejudicial effect on Mr. Nichols' ability to receive a fair and individualized penalty hearing

We argued in Point I above that the prejudicial evidence linking Mr. McVeigh to [UNDER SEAL] is, in the circumstances of this case, likely to inflame and confuse the jury regarding Mr. Nichols' guilt. See Section I.A.2.a., supra. For similar reasons, the jury is likely to confuse [UNDER SEAL]. Section I.A.3., supra. The prejudicial impact of this evidence on Mr. Nichols will be even greater at the penalty phase, since the exercise of the jury’s moral judgment and sympathy at sentencing is even more sensitive to prejudicial influences of this type than the categorical guilt phase judgment.

It is improper for a jury to consider these controversial (but constitutionally protected) views as an aggravating factor in their own right, independent of their relevance to other, proper aggravating factors. Dawson v. Delaware, 503 U.S. 159 (1992) (capital sentencer's consideration, as nonstatutory aggravating factor, of irrelevant evidence concerning defendant's constitutionally-protected association violated due process). Nevertheless, the evidence of Mr. McVeigh’s [UNDER SEAL] is likely to be held relevant and admissible against him, because [UNDER SEAL]. [UNDER SEAL] at least arguably makes Mr. McVeigh’s beliefs relevant to prove both his required "gateway" mental state finding of intent to kill under § 3591(a)(2) and the aggravating factors leveled against him. Accordingly, they may be admissible at the penalty phase regardless of their protected status. Dawson, 503 U.S. at 164-65 (evidence of constitutionally protected association is admissible where relevant to some legitimate issue at penalty phase); Barclay v. Florida, 463 U.S. 939, 949-50 (1983) (holding that defendant’s desire to start a "race war" was properly considered relevant to several aggravating factors at the capital sentencing hearing).

Mr. Nichols, on the other hand, [UNDER SEAL]. It is apparent that Mr. McVeigh’s political views are irrelevant to the jury’s individualized consideration of Mr. Nichols’ sentencing case. Nevertheless, the inflammatory nature of the evidence against Mr. McVeigh, when combined with Mr. Nichols’ admitted prior associations with him and the subjective and emotional nature of the sentencing decision, make it inevitable that in a joint penalty phase Mr. Nichols will be tarred in the jurors’ minds at least to some extent with Mr. McVeigh’s [UNDER SEAL]. Since the individualized consideration of Mr. Nichols’ case required by the Eighth Amendment will be impossible in these circumstances, the penalty phases should be severed.

B. Seriatim penalty phases before the same jury will not cure the constitutional flaws

The dangers discussed above will not be solved by separating the sentencing hearings while retaining the same jury to hear them both; indeed, this procedure will even create new ones. Accordingly, in the event of capital convictions against both defendants at a joint guilt phase, the Court should specially empanel a separate penalty phase jury to hear one of the defendant’s sentencing cases. See 18 U.S.C. § 3593(b)(2)(C) (authorizing impanelment of new sentencing jury where guilt phase jury has been "discharged for good cause").

The first, and intractable, problem would be the decision as to which defendant should go first. Given the antagonism of the defenses, it requires little imagination to see the likely advantage of the first defendant to get the ear of the jury. Even if the first defendant’s penalty case fails, he will have done untold damage to the second defendant’s chances for life by painting the second defendant as the more culpable in the crime. Indeed, the second defendant will not even have the opportunity to contest the first defendant’s evidence against him, but will have to stand by helplessly and watch the jury that will sentence him be poisoned by unrebutted accusations and insinuations against him. On the other hand, allowing the later defendant’s counsel to cross-examine, argue and present rebuttal witnesses at the first defendant’s penalty hearing would defeat the whole purpose of separating the hearings in the first instance.

The second defendant will also be disadvantaged in the consideration of his mitigating evidence. If it is similar to that already offered by the first defendant, what might have seemed compelling when heard for the first time will likely sound stale and contrived on a second hearing. And if the subsequent defendant’s case in mitigation is conceptually inconsistent with the first defendant’s, the later defendant may be even more severely disadvantaged. Having accepted, for example, that the first defendant’s abusive childhood or mental impairment was a mitigating factor, a jury may be less likely for that reason to accord mitigating weight to a subsequent defendant’s evidence of his good mental health and desirable character traits and talents. While the mitigating weight to be accorded any particular factor is for the jury to determine, that determination must not be skewed by a jury's prior determination of another defendant's sentence, and by the jurors' understandable but legally irrelevant desire to appear and to be consistent. For parallel reasons, each of the other problems identified above will be exacerbated, or, at best, go unsolved by seriatim penalty phases.

Finally, the government might well receive an advantage from having the most culpable defendant sentenced first, since in this way the jury will be most likely to establish for both defendants that the crime itself merits the death penalty. While the second defendant might still save himself by a sufficiently compelling showing in mitigation, the fact remains that at least half of the Government's burden will have been carried before the second sentencing hearing has begun.

In sum, the danger is that the jurors' responses to critical issues at the first sentencing hearing will tend to predetermine their decisions on the same or related issues at the subsequent hearing. Since this will exacerbate rather than solve the problems with a joint penalty hearing, severed penalty phases before different juries is required.

For the foregoing reasons, Mr. Nichols respectfully requests that his case be severed for trial or, alternatively, that dual juries be empaneled to hear the cases against the two defendants separately. If severance at the guilt phase is not granted, Mr. Nichols requests in the alternative that any resulting sentencing hearing be severed and conducted before a different jury than the jury that hears Mr. McVeigh’s sentencing hearing.

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)

We gratefully acknowledge the substantial assistance

of law students Sesha Kalapatapu, Todd Lard, John Parras,

Charles Rich and Theresa Trzaskoma