*1 TITLE: United States of America, Plaintiff v. Terry Lynn Nichols, Defendant.TOPIC: TERRY LYNN NICHOL'S WRITTEN OBJECTION AND MOTION TO QUESTION JUROR # 182 ON HIS VIEWS ABOUT THE DEATH PENALTY

DOCKET-NUMBER: 96-CR-68-M

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

YEAR: Filed: October 16, 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:

Terry Lynn Nichols, by counsel, respectfully files this written objection to the Court's refusal to allow defense counsel to question juror # 182 about his death penalty views. Mr. Nichols requests that juror # 182 be brought back into court for further questioning.

The voire dire of juror # 182 took place the afternoon of October 15, 1997. Defense counsel began the voir dire of Juror # 182 on the issue of punishment by asking him general questions regarding the strength of his opinions and the publicity of recent death penalty cases. Tr. pp. 3501-3504. Counsel then proceeded to ask questions regarding the procedure followed in the penalty phase of a federal capital case. Tr. pp. 3504-3505. After exploring these general issues, counsel attempted to elicit the juror's specific views on the death penalty via questions in the Juror Questionnaire. Tr. p. 3505.

In beginning his examination on the potential juror's death penalty views, counsel asked a question from the Juror Questionnaire. Counsel asked, "[c]an you give me some examples of what kind of crimes, if you were writing the statute, that you feel that life imprisonment would be the appropriate punishment?" Tr. p. 3506 (question # 124c in the Juror Questionnaire). Juror # 182 responded;

As I mentioned before, I did not read anything about the Davis case; and I guess an example of that would be where the wife, I guess, of Davis who was executed, got life imprisonment--I believe that it's correct, the sentence that she received where he got the death penalty. What the separation on that was and again, not being in a jury to hear all of those facts, I guess I don't totally understand why one was given one sentence and one was given another sentence.

Tr. p. 3506 (emphasis added). Because this answer was non-responsive, clarifying questions were asked. Tr. pp. 3506-3507. In response to one of these questions Juror # 182 further stated,

[t]hat was just one example where there were two people supposedly involved in the same crime and one got one punishment and the other got another punishment. And if they were together, why is the difference between the two different ones? And again, the jury and defense--defendants and the prosecutors had to present that evidence to prove that one way or the other.

*2 Tr. pp. 3508-3509 (emphasis added). The juror's responses did not answer the question asked and left defense counsel wondering whether Juror # 182 understood his duty in a possible penalty phase to consider and give effect to evidence unique to the individual defendant. When asked to give cases where the punishment of life in prison is appropriate, juror # 182, in essence, responded that it is appropriate where it is given as a sentence. In an attempt to get a non-tautological answer, defense counsel asked the question a different way. Tr. p. 3508. This question was objected to and sustained with the comment from the Court and concomitant message to the juror that "the man has given us his views." Tr. p. 3509.

Defense counsel then asked Juror # 182, in "what kind of cases is it appropriate, if ever, to impose the punishment of death." Tr. p. 3509 (question # 124d in the juror questionnaire). Juror # 182's response to this question was similar to that of previous questions. In essence, he stated that the punishment of death is an appropriate sentence where it is given as a sentence. Tr. p. 3509.

Counsel's attempts to use questions in the juror's questionnaire as a means to elicit the juror's personal views on punishment failed because the juror did not understand what was being asked of him. Counsel proceeded to use hypothetical situations to elicit the juror's personal views regarding the death penalty. This examination was cut off sua sponte. Tr. pp. 3509-3510.

Counsel would have asked the following questions if allowed to continue the voir dire examination of juror # 182:

1. In a hypothetical case where a person has been convicted of an intentional and pre-meditated murder of more than one person, what would be important to you in deciding if the punishment should be life or death?

2. Do you feel the death penalty is the only appropriate sentence for a person found guilty of a crime that resulted in several people being killed and injured?

3. Do you believe the death penalty is the only appropriate punishment if a person has been found guilty of intentional premeditated murder of children?

4. Can you think of any cases of murder where you felt the defendant did not deserve the death penalty?

5. You have said, talking about Gary Davis and his wife, that you don't "understand" why "if they were together, why is the[re] difference between the two different ones." Why do you feel this way? Do you feel this way because you believe that two people who take part in the same crime should receive the same punishment?

Mr. Nichols was denied his right to an adequate voir dire of Juror # 182 on the issue of punishment. See generally Morgan v. Illinois, 504 U.S. 719, 729-730 (1992) ("Voir dire plays a critical function in assuring the criminal defendant that his constitutional right to an impartial jury will be honored. Without an adequate voir dire the trial judge's responsibility to remove prospective jurors who will not be able impartially to follow the court's instructions and evaluate the evidence cannot be fulfilled"). Mr. Nichols was denied the opportunity to elicit information that would allow him to meet his burden of showing that juror # 182 should be excused for cause because the juror is substantially impaired from either considering or giving effect to mitigating evidence in the event of a guilty verdict.

Requested Relief

*3 Mr. Nichols respectfully prays that the court bring juror # 182 back into court for further questioning by defense counsel about his views regarding the death penalty.

Dated: October 16,1997