We respectfully submit this memorandum to assist the Court in evaluating and ruling on challenges for cause. Specifically, we remind the Court that any juror who cannot look beyond the crime to consider and give effect to mitigating circumstances relating to the defendant must be disqualified for cause.

In Morgan v. Illinois, 504 U.S. 719 (1992), the trial court rejected, and the Supreme Court approved, a voir dire question that asked whether the juror would "automatically impose the death penalty" upon the defendant in that case regardless of the facts developed at trial. Id. at 723. The "automatically impose the death penalty" formulation is somewhat misleading, however, in that it masks the real issue in Morgan — the defendant’s right to inquire about the juror’s ability to follow the court’s instructions (and the statutory and Constitutional requirements) that she consider the defendant’s mitigating evidence before making the life/death decision. As Justice White explained, "Any juror who states that he or she will automatically vote for the death penalty without regard to the mitigating evidence is announcing an intention not to follow the instructions to consider the mitigating evidence and to decide if it is sufficient to preclude imposition of the death penalty." Id. at 738; see also id. at 739 ("Any juror to whom mitigating factors are . . . irrelevant should be disqualified for cause, for that juror has formed an opinion concerning the merits of the case without basis in the evidence developed at trial").

Thus, the starting point for the Court's Morgan Court's analysis was not doubts about the constitutionality of "automatically sentencing someone to death." The expressed concern was that all jurors must be able to follow the law as instructed by the trial court. The Illinois statute at issue in Morgan explicitly provided that "[t]he court shall consider, or shall instruct the jury to consider any aggravating and any mitigating factors which are relevant to the imposition of the death penalty." Id. at 737 (quoting Ill.Rev.Stat., ch. 38, ¶ 9-1(c) (Supp.1990)). In parallel language, the Federal Death Penalty Act directs that the jury "shall consider all the information received during the hearing," including all the relevant mitigating evidence presented by the defendant. 18 U.S.C. § 3593(d) (emphasis added). Morgan held that the defendant had the right to explore with the potential capital jurors their ability to follow these provisions, and to have stricken for cause any juror unable to do so in his case.

Moreover, like these statutory provisions themselves, Morgan’s holding is rooted in the long line of Supreme Court cases requiring that jurors consider and be permitted to give effect to mitigating factors relating to the individual defendant before assessing the ultimate punishment. In Woodson v. North Carolina, 438 U.S. 280 (1976), the Supreme Court first held that imposition of a mandatory death sentence without consideration of the character and record of the individual offender is inconsistent with the fundamental respect for humanity that underlies the Eighth Amendment. In Lockett v. Ohio, 438 U.S. 586 (1978), the Supreme Court struck down the Ohio death penalty statute based on this principle because it did not permit the type of individualized consideration of mitigating factors required by the Eighth and Fourteenth Amendments. In Eddings v. Oklahoma, 455 U.S. 104 (1982), the Court went further still and vacated a death sentence because the state court declined to consider as relevant mitigating circumstances the defendant’s unhappy upbringing, emotional disturbance, and turbulent family history. As the Court explained this extension of Lockett, "[j]ust as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence." Eddings, 455 U.S. at 113-14 (original emphasis).

Finally, in Penry v. Lynaugh, 492 U.S. 302 (1989), the Court extended the Lockett principle once again. Although, consistent with Lockett and Eddings, neither the Texas legislature nor the Texas trial court prohibited the jury from "considering" mitigating factors, that was not enough. Rather, the Court held that the trial court had to allow the jurors to "give effect" to these factors by specifically instructing them that they must consider them in making the life/death decision. Penry, 492 U.S. at 328.

In this context, Morgan represents a logical extension of the Eddings principle. To paraphrase Justice Powell, just as (under Eddings) a sentencing court may not refuse to consider, as a matter of law, any relevant mitigating factor, neither may a sentencing juror (under Morgan) refuse to consider any relevant mitigating factor as a matter of personal predisposition or bias.

The key point is that Morgan does not hold that those jurors who will automatically impose a sentence of death in every capital case are the only kinds of jurors whose pro-death views should disqualify them from service. Rather, the case recognizes that there exists a larger set of potential jurors who may be disqualified because their views on the death penalty "would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Id. at 732 (quoting Wainwright v. Witt, 469 U.S. 412, 424 n.5 (1985)). Among this larger set of jurors is included the subset the defendant specifically sought to identify in Morgan — the juror who would automatically impose a death sentence after a guilty verdict in a capital case regardless of the facts or circumstances to be elicited at trial. But nowhere in Morgan does the opinion say that the only juror whose pro-death view disqualifies them from service is the "eye-for-an-eye" "automatic death for all murderers" juror. Rather, the lesson of Morgan is that any person whose preconceptions about the propriety of the death penalty — either generally or related to the specific case — are such that the juror would not or could not follow the trial court’s penalty phase instruction that she consider the mitigating evidence presented by the defendant, is excludable for cause.

In this regard, it is important to emphasize that the "consideration" of the defendant’s mitigation required by the post-Lockett cases represents something more than a passive willingness to listen to the defendant present his case before sentencing him to death. Rather, as used by the Supreme Court, the term "consider" means actively "take into account," "enter into the decision" or "weigh in the balance" prior to making the life/death choice. As Justice Powell explained in Eddings, "[the jurors] may determine the weight to be given relevant mitigating evidence . . . [b]ut they may not give it no weight by excluding such evidence from their consideration." Id., 455 U.S. at 114. Penry reinforced this notion by requiring that the trial court not only ensure that the jurors will "consider" mitigating evidence in the passive sense of listening, but guarantee that the jurors could "consider and give effect to" the mitigation in their deliberations. Id., 492 U.S. at 319 ("Eddings makes clear that it is not enough simply to allow the defendant to present mitigating evidence to the sentencer. The sentencer must also be able to consider and give effect to that evidence in imposing sentence."). Only where the jurors actively consider mitigating evidence as a meaningful part of their life/death decision is this Constitutional mandate being satisfied.

The voir dire of Juror #699 well illustrates this crucial distinction, which the government fails to comprehend. Government counsel, in an attempt to insulate the juror from cause challenges under Morgan, elicited her willingness to "listen" to a defendant’s mitigating evidence:

10 Q. Okay. So no matter how heinous the crime, no matter how

11 many people were murdered, you've got to wait and listen to all

12 the evidence, both the evidence of aggravation that the

13 Government will introduce but also the evidence of mitigation

14 that the defense might introduce. Do you see that as

15 important?

16 A. Yes.

17 Q. And can you do that?

18 A. Yes

19 MR. RYAN: Thank you for answering my questions.

10/2/97 Tr. 1062. Under further questioning by defense counsel, however, the limited scope of what the juror meant by "listening" began to become clear:

3 BY MR. WOODS:

4 Q. And then one further question. In those type of cases

5 where there is terrorism involved -- and we've defined

6 terrorism -- would you be able to consider the defendant's

7 background and would that enter into your decision about the

8 punishment?

9 A. We're speaking again where it's proven?

10 Q. Yes, ma'am.

11 A. I would certainly listen to what was presented to me in the

12 sentencing; but if there wasn't a circumstance there that said

13 to me that I should change my mind, then I would still say that

14 the death penalty is appropriate.

10/2/97 Tr. 1078. This became clearer yet under the Court’s resumed questioning:

3 Q [BY THE COURT]. Yes.

4 A. My opinion would be if this person was proven guilty of

5 these crimes that we just talked about, I would impose the

6 death penalty; but then he's starting to talk about, well, what

7 could change my mind; and I'm trying to be fair and say, well,

8 I would listen, but I really can't think of anything right now

9 that would change my mind, not having heard it.

10/2/97 Tr. 1080.

Finally, after the Court put the question in Morgan’s terms of whether the juror would "automatically impose" the death penalty, Juror #699’s disqualifying predisposition toward death was unambiguous:

10 Q. And, you know, I guess what we're asking is -- and there

11 isn't -- maybe we ought to just go to it instead of going

12 around about it all the time. If you -- if you were on a jury

13 and the jury found Mr. Nichols had some role to play in the

14 Oklahoma City bombing, would you say automatically there should

15 be a death sentence on him?

16 A. Automatically?

17 Q. Yes. I mean, that that's enough -- that crime -- and

18 you've been talking about categories of crime -- that crime

19 deserves the death punishment regardless of his background or

20 circumstances or the role that he played. Is the question

21 clear to you?

22 A. I'm thinking about it.

23 Q. Okay. Well, I just wanted to make sure you understood what

24 I asked you.

25 A. You're saying to me if Mr. Nichols is proven guilty,

1 irrespective of what percentage of his involvement was there,

2 would I find him -- would I impose the death penalty?

3 Q. Yes.

4 A. Yes.

10/2/97 Tr. 1081-82. The difference in the juror’s mind between "considering" as "listening" and "considering" as "taking into account" (or "entering into the decision" or "weighing in the balance" — which may be the best formulation under the weighing provision of § 3593) is very clear. Second, we respectfully request that the Court use some other word than "automatically" when asking this question. As the Court is aware, most people do not want to think of themselves as doing anything "automatically," since that connotes a mechanical or unthinking act. Juror #699’s reaction to the Court’s initial question — a defensive "Automatically?" — is typical in this regard. 10/2/97 Tr. 1081. Using the word therefore risks a quick and uninformative denial even in cases where the juror in fact would be unable or unwilling to consider any sentence short of death. We respectfully suggest some other formulation that means the same thing — e.g., "if you were on a jury and the jury found Mr. Nichols guilty of the Oklahoma City bombing, realistically, would you consider any alternative to a death sentence on him?"

In sum, jurors who express the view in voir dire that they would impose the death penalty based exclusively or in combination

cannot by definition consider and give appropriate weight to mitigating evidence. They therefore must be dismissed for cause under the general Morgan principle that a juror for whom mitigating evidence is irrelevant and not worthy of consideration is impaired from following the Court's instructions and his oath.

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)

I hereby certify that a copy of this document was served, by hand, on Lawrence Mackey, Special Attorney to the Untied States Attorney General.

October , 1997