TOPIC: MEMORANDUM OF LAW REGARDING VOIR DIRE QUESTIONING OF POTENTIAL JURORS ON THEIR ABILITY TO CONSIDER AND GIVE EFFECT TO PARTICULAR MITIGATING CIRCUMSTANCES

DOCKET-NUMBER: 96-CR-68-M

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

YEAR: Filed: October 14, 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 submits this memorandum of law regarding questions designed to elicit whether or not potential jurors would be able to follow their statutory and Constitutional duties in the possible penalty phase of a capital case.

1. On the eleventh day of voir dire in Mr. Nichols' trial, juror No. 4 was asked by defense counsel to

suppose [she] were in the second phase of a trial in which [she] had convicted someone of planting a bomb on an airplane killing a lot of people and [she] were going to now decide the sentence. Would [she], having concluded that somebody had done that, be able to consider and give effect to evidence that the defendant didn't have any prior criminal record?

Trans. p. 2805. This question was objected to by government counsel and sustained "as to particulars." Trans. p. 2805. Shortly thereafter the Court indicated that its ruling would be the same for questions similar in form. Trans. p. 2806 (asking whether the juror could consider and give effect to the fact that the defendant had "a family with young children"). The Court stated, "I'm asking you not to go into particularized factors and have her say yes or no." Trans. p. 2806.

With this line of inquiry defense counsel was not attempting to inquire into how much weight particular factors would be given in a possible weighing process. Instead, counsel sought merely to elicit whether the particular factor would be given consideration and effect as required by Congress and the Constitution of the United States.

2. Title 18 United States Code, Section 3592(a) states that "[i]n determining whether a sentence of death is to be imposed on a defendant, the finder of fact shall consider any mitigating factor," including those enumerated in the statute. "No prior criminal record" is listed as a mitigating circumstance at 18 U.S.C. s 3592(a)(5). Other mitigating circumstances listed in the statute include, impaired capacity, s 3592(a)(1), duress, s 3592(a)(2), equally culpable defendants, s 3592(a)(4), disturbance, s 3592(a)(6), victim's consent, s 3592(a)(7), and other factors, s 3592(a)(8). Potential jurors must be willing and able to consider and give effect to each of these possible mitigating factors. As has been repeatedly emphasized in voir dire, we won't get another chance to learn about a juror's impairments for service. Questioning jurors now about particular mitigating factors, especially those enumerated in the statute and caselaw, is a means to determining whether or not they will be able to fulfill their duties, irregardless of the evidence ultimately presented.

*2 3. The Constitution requires that jurors be able to consider and give effect to particular mitigating factors. See generally Terry Nichols' "Memorandum Concerning Jury Questionnaire," Docket No. 4814. The Constitution requires that jurors consider and give effect to circumstances of the offense and offender. Eddings v. Oklahoma, 455 U.S. 104 (1982); Gregg v. Georgia, 428 U.S. 153 (1976). In Hitchcock v. Dugger, 481 U.S. 393 (1987), Justice Scalia, speaking for a unanimous court, tells us that jurors must be able to consider and give effect to particular mitigating circumstances. One of the "particular" circumstances in Dugger was that the "[defendant] was a fond and affectionate uncle to the children of one of his brothers". Dugger, 481 U.S., at 397.

Jurors must also be able to consider the future dangerousness of the defendant. Skipper v. South Carolina, 476 U.S. 1 (1986). They must be able to give consideration and effect to a defendant's mental retardation and abused background. Penry v. Lynaugh, 492 U.S. 302 (1989). They must be able to consider and give effect to the defendant's nature and degree of participation in the crime. Tison v. Arizona, 481 U.S. 393 (1987); Enmund v. Florida, 458 U.S. 782 (1982). They must be able to limit their consideration of aggravating evidence to relevant aggravating evidence. Dawson v. Deleware, 503 U.S. 159 (1992). Ultimately, jurors must be willing to undertake the "awesome responsibility" of sentencing in a capital case. Caldwell v. Mississippi, 472 U.S. 320 (1985).

Dated: October 14,1997