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TERRY LYNN NICHOLS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION TO EXCUSE JUROR #388
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Richard P. Matsch No. 96-CR-68-M UNITED STATES OF AMERICA, Plaintiff, v. TERRY LYNN NICHOLS, Defendant. ______________________________________________________________________________ TERRY LYNN NICHOLS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION TO EXCUSE JUROR #388 ______________________________________________________________________________ On his return of summons, under penalty of perjury, Juror #388 stated unequivocally that he was "convinced" that Terry Nichols was guilty of the Oklahoma City bombing. 10/20/97 Tr. 4109. Subsequently, on his questionnaire, under penalty of perjury and after having been instructed by the Court in detail about the presumption of innocence and the government’s burden of proof, Juror #388 stated in response to the question, "Please summarize what you have seen, read or heard about Terry Nichols," "More than I want." Questionnaire Question ("QQ") #159. He further stated that, yes, he had formed an opinion about Terry Nichols. Asked about what that opinion was and on what it was based, he answered, "His part in the crime." QQ #160. He then further elaborated his basis for this opinion, stating that he had heard and read that "[h]e was with Timothy McVeigh — planned and executed the crime." QQ #162. Juror #388 was also asked his general views about sentencing a person to death. Asked specifically, "In what kinds of cases is it appropriate, if ever, to impose the punishment of death?", he answered: "In a case such as this Terry Nichols case." QQ #124(d). Perhaps most disturbing, in response to the question whether he could think of any reason that would prevent him from rendering a fair and impartial verdict based solely on the evidence, he answered, "No." QQ #165. Even after clear instructions on the presumption of innocence, it did not occur to Juror #388 that his definitive prejudgments of both Mr. Nichols’ guilt and his appropriate sentence would impede what he understood to be his "impartiality." "The influence that lurks in an opinion once formed is so persistent that it unconsciously fights detachment from the mental processes of the average man." Irvin v. Dowd, 366 U.S. 717, 727 (1961). It is certainly true that, under insistent questioning by the Court, Juror #388 claimed to have seen the error of his previous thinking. See e.g. 10/20/97 Tr. 4109-12 (presumption of innocence), 4118-20 (bias in favor of law enforcement testimony), 4126-27 (putting aside deeply felt religious convictions about knowing right from wrong); 4130-31 (ability to put aside unequivocal belief in Mr. Nichols’ guilt); 4134-5 (particularly stern questioning by the Court instructing juror that his views about right and wrong have no place in the legal sentencing decision). So directive was the Court’s questioning that by the time the Court asked about Juror #388’s statement that the death penalty should be imposed in "cases such as this Terry Nichols case," only one question was required to elicit the answer that Juror #388 had learned was the appropriate one. Id. 4136-7. Even disregarding the earlier, under-oath summons and questionnaire responses, and regardless of the good faith of his answers, there are many reasons to doubt the effectiveness of Juror #388’s professed conversion to "neutrality." 10/20/97 Tr. 4119. The first is the juror’s obvious desire to please the Court by giving the answers expected of him. See, among many other examples, id. 4140 (spontaneously thanking the Court for "opening up a new avenue in my thinking"). The second is the lingering equivocation in his answers about the presumption of innocence, his ability to impose a sentence other than death, and other crucial issues. In response to the question of his open-mindedness about the possibility of returning a not-guilty verdict, he was only able to answer with an equivocal recognition of the "possibility" of such an outcome, and not its presumption. Id. 4111. In response to the Court’s ultimate question after being instructed on the actual death penalty procedure — whether Juror #388 could follow those procedures and consider both the aggravating and mitigating circumstances — his answer betrayed a clear bias towards the fact of conviction as the overriding sentencing factor, with the defendant’s "background" only considered (at the Court’s insistence) as an afterthought. "Oh, yes. You know, that -- the final thing would be what's the evidence and what would be presented at the trial. But yes, the background you have filled -- that's there." Id. 4141. Indeed, despite the juror’s repeated earlier conditioning on this point, the Court was required once again to explain that the sentencing decision was separate from the innocence/guilt decision, and elicit "Okay" and "Yes" answers to this renewed explanation. Id. 4141-2. Juror #388 is even more clearly impaired with respect to the evaluation of law enforcement testimony. He initially stated that he would give more credence to law enforcement agents because "that’s their function." Id. 4118. The Court was thereafter apparently able to convince him otherwise. Id. 4118-9. When defense counsel returned to the subject, however, Juror #388 eventually conceded — in response to open-ended questions — that federal agents who testify should have an "edge," explaining that "They're out to protect, again, the people, and that's their duty; so you give them that edge." Id. 4159. Finally, Juror #388 demonstrated a clear inability to separate his emotional reaction to the suffering of the victims from other legal issues in the case. Even in thinking about Mr. Nichols’ right to court-appointed attorneys, "the first thing" that entered his mind was "the tragedy and the lives lost." Id. 4148. Similarly, the "the first thing" that came to his mind when he saw Mr. Nichols at the Jeffco Fairgrounds was "the explosion and the deaths and all those lives that were lost which when you really think about it, it touches your heart." Id. He also "didn't put emphasis on [where Terry Nichols was at the time of the bombing] because I think my main concern was is what happened in and the lives that were lost, which still touches me very much." Id. 4153. As he further explained his feelings, "you know, when you seen some of those pictures and of course heard about the family involved and the children, it brought something home to me because that could happen to any one of us anytime." Id. In sum, even disregarding his earlier summons and questionnaire answers there is strong reason to doubt Juror #388’s ability to remain impartial. When those earlier answers are added into the balance, that conclusion is inescapable. "A juror to be impartial must, to use the language of Lord Coke, ‘be indifferent as he stands unsworn.’" Reynolds v. United States, 98 U.S. 145, 154 (1879) (quoting Coke, Co. Litt. 155 b.). As this Court previously explained in excusing (for a sentencing bias in favor of life) another juror whose ultimate answers, taken alone, would have qualified him,
That same rejection of "talismanic questions" should lead the Court to find that in the total circumstances of Juror #388’s answers to all of the answers put to him under oath, his impartiality with respect to the innocence/guilt decision, sentencing decision, and ability to evaluate witnesses’ testimony and remain free of the influence of distorting emotions can all reasonably be questioned. He should therefore be excused. Respectfully submitted, Ronald G. Woods Adam Thurschwell (303) 831-4059 Counsel for Terry Lynn Nichols I certify that the one copy of this document was hand delivered to Larry Mackey, Special Attorney to the Attorney General on today’s date. October 24, 1997 |