*1 TITLE: United States of America, Plaintiff v. Terry Lynn Nichols, Defendant.

TOPIC: MEMORANDUM CONCERNING THE SCOPE OF ATTORNEY-CONDUCTED VOIR DIRE

DOCKET-NUMBER: 96-CR-68-M

VENUE: U.S. District Court for the District of Colorado.

YEAR: Filed: October 20, 1997

JUDGE: Hon. Richard P. Matsch, Chief District Judge

ATTORNEY(S): Michael E. Tigar, Esq., Ronald G. Woods, Esq., N. Reid Neureiter Esq., Adam Thurschwell, Esq., Jane B. Tigar, Esq., Denver, For the Defendant Terry Lynn Nichols.

TEXT:

Michael E. Tigar and Ronald G. Woods, lead counsel for Terry Lynn Nichols, file this memorandum to tell the Court the basis for our voir dire approach. We hope by this means to minimize objections and to help speed the process.

The defense appreciates the opportunity for attorney voir dire. Every prospective juror has heard of Terry Nichols, and almost all of them have heard and remember only or predominantly negative things about him. Every prospective juror has heard of the McVeigh death sentence, and most of them approve of it. Almost every prospective juror comes to court without an understanding of the Eighth Amendment command and statutory requirements concerning punishment in capital cases. Most prospective jurors, when asked without prompting to discuss the circumstances that govern a proper sentence, respond in terms of the kinds of offenses for which a particular sentence is appropriate.

The Court's initial discussion with each juror therefore plays a vital role. It reminds jurors of important principles, and sketches the proper role of jurors. The Court does not discuss certain topics with prospective jurors, and the selection of topics to be discussed varies somewhat from juror to juror--as one would expect.

I. OUR TURN--TWO MAJOR ISSUES

When our turn comes--after the government has had its chance--we have two major tasks. For both tasks, we are trying to identify potential motions to excuse, and to determine the basis for possible peremptory challenges.

II. ISSUE ONE--WHAT OUTSIDE INFLUENCES MIGHT CALL INTO DOUBT THE JUROR'S ABILITY TO RESPECT THE PRESUMPTION OF INNOCENCE

Our first major task is to explore what the juror has been exposed to by way of publicity and other outside influences, and by this means to assess the juror's ability to respect the presumption of innocence. Formulaic assurances are not, in our view, adequate on this score. Each juror's responses must be seen in light of their life experience. Sometimes, a juror's occupation or avocational interests may combine with publicity to require excusal--as where a juror has a background in explosives or would be overwhelmed by images previously seen and retained.

The prosecutors' repeated questions to jurors about their memory of "where they were on April 19, 1995," coupled with a review of the McVeigh transcript, tells us they have well-learned the lesson taught by their principal jury consultant in his many works. They rely upon dramatic images to sustain their case, and are indeed publicly quoted in the media as planning to employ that strategy with the jury seated in this case.

*2 Knowing this, we seek by open-ended questions to explore with jurors the images they already have in mind. When a juror says that he or she knows little, we may ask a series of questions to show that in fact they carry many images of the case. This is not repetition--if anything, it is simply a test of whether the juror understands and has internalized the cautions given by the Court. We recall the literature that says that jurors find it very difficult to retrieve and acknowledge the sources of their own bias.

III. PENALTY QUESTIONS

It is no accident that the prosecutors easily slip from describing the McVeigh trial into a future tense description of a penalty phase, suggesting that such a phase is inevitable in this case.

We appreciate the Court reviewing for jurors the "two-phase" concept, and stressing that there is a presumption we will not get to a life phase, and that even if we do the law says that two people convicted of the same offense may nonetheless get different penalties.

Experience teaches us that this introduction may not be completely understood, or that it may go against the juror's preconceptions in a case of this kind. We therefore probe with open-ended questions to see if the juror carries one of several important kinds of bias. One such bias is "offense is everything." The government, by closed-ended questions, basically repeats a catechism of "no automatic death penalty." We, by contrast, want to explore juror attitudes and then ask questions to see if the Court's message has landed on fertile soil

Another potential bias is a preconception on appropriate punishment based on the McVeigh trial, media accounts, or even the current Colorado debate on this issue. Again, we want to explore attitudes before putting "can you participate" questions.

Yet another problem is that the procedures are complicated, and a juror may not fully grasp them based upon a single exposure to the Court's instructions. We think that our questions on these subjects can help the Court evaluate the jurors.

In all these cases, our questions are--as we noted above--designed to help us formulate motions to excuse and also to assist with exercise of peremptory challenges.

IV. MR. MACKEY, MAY WE INTRODUCE YOU TO MR. RYAN

An example of tactical objecting to cut off meaningful inquiry occurred on Friday, October 17. We wanted to find out if a juror with a strong emotional response to Oklahoma bombing would be able to follow instructions on punishment. The juror said that if he were writing the law, the Oklahoma case would be paradigmatic of a virtually automatic death penalty situation. This colloquy followed, Tr. Pp. 3983:

Q. Would you start out leaning in favor of one of those options as a working hypothesis?

MR. MACKEY: Excuse me. Objection, your Honor.

THE COURT: Sustained.

BY MR. TIGAR:

Q. Would--would you start out your deliberation completely without any preconception about which of the punishments was appropriate?

*3 MR. MACKEY: Same objection, your Honor.

BY THE COURT:

Q. Well, the question is would you start out with--with considering what you had heard at the sentencing hearing?

A. I can only say that an answer to that would only come to me after hearing the evidence presented in that hearing.

Q. That's what we're trying to ask you, whether you're open to that evidence--

A. Very well.

Yet with the very next juror, the government was apparently so pleased with the very question to which it objected that the following exchange occurred in Mr. Ryan's questions, Tr 4022-23:

Q. Well, there was a period of time between those two verdicts, as you recall; and during that period of time, that span of time is when this second trial occurs that Judge Matsch was speaking about. And that's when the prosecution will call forward additional evidence about the crime itself and the impact it had on some of the victims; but the defense also has the opportunity to present information to you that concerns a number of things. It concerns perhaps a defendant's role in a case, in a crime. It could relate to the defendant's life, his experiences, factors that came to play on him in his childhood and the like. We don't know what it will be in this case because we haven't heard the evidence. Now, do you believe that you would be able to approach sentencing with an open mind, consider both the prosecution's evidence and the defense evidence, and arrive at a decision with respect to the life-or-death sentence?

A. Yes, I think I could.

Q. And would you be able to approach it, this presentation of evidence, starting with both options in mind, both life and death?

A. Yes.

Q. Not leaning one way or the other until you've heard the evidence?

A. Yes, I think I could.

Q. You realize the law requires that of jurors?

A. Yes. Yes, I do.

There are many problems with Mr. Ryan's approach, the first being his eliding from a past verdict to a predicted future event--a life phase in this case--by using "will call" and other verb forms. But the most potent paean to our approach is his adoption of our very formulation of the essential issue. We did not object because we think it a proper inquiry. If a juror starts out leaning in one direction or another, that juror presumptively should not sit.

With respect, we think that the Court's question to the previous juror did not complete the inquiry we had begun. Being open to "the evidence" is not the same thing as being willing to consider life as an option without "leaning."