UNITED STATES OF AMERICA,

Plaintiff,

v.

TERRY LYNN NICHOLS,

Defendant.

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TERRY LYNN NICHOLS’ OBJECTION AND REQUEST REGARDING THE COURT’S VOIR DIRE OF POTENTIAL JURORS

______________________________________________________________________________

Mr. Nichols respectfully objects to the Court’s apparent attempts to rehabilitate life-impaired, but not death-impaired, potential jurors. Mr. Nichols also respectfully requests that the Court slightly modify its questions to potential jurors’ regarding their ability to follow its sentencing phase instructions.

I. The Court appears to be exerting considerable effort to rehabilitate jurors who would automatically vote for the death penalty upon conviction of a capital crime while being relatively deferential to potential jurors who express a moral or religious scruple about imposing death, with the result that the record is skewed in favor of death-prone jurors.

The Court appears to be more inclined to attempt to rehabilitate jurors who are automatic death-imposers than those who express doubts about their ability ever to vote for death. Mr. Nichols is certain that the motivation for this disparate treatment is laudable. Nevertheless, its effect is to produce a record that makes meritorious motions to excuse life-impaired jurors more difficult to demonstrate than comparable motions to excuse death-impaired jurors. Mr. Nichols therefore objects.

This tendency can be illustrated by comparing the Court’s questioning of Jurors #84 and #795. Juror #84’s voir dire is particularly instructive and also demonstrates the confusion that can be generated by premature conditioning of a juror’s responses to death penalty questions. Early on in the Court’s voir dire of Juror #84 he gave clear answers indicating that he believed death was to be imposed automatically upon conviction of certain crimes, without regard to the defendant’s mitigating circumstances. Prior to the Court’s instructions about the law related to the sentencing determination, for example, he stated in response to the Court’s question, "So what is it? Are you saying anytime you kill somebody, you ought to be killed?" that "I think so, yes." 10/7/97 Tr. 1745. Nevertheless, after the Court instructed him about the legal requirement to consider both aggravation and mitigation, he seemed to turn around, stating in response to the Court’s question "whether you can do that [i.e., follow the requirements of the Death Penalty Act and the Eighth Amendment]" that "Yes, I think I can." Id. 1749.

Upon further questioning, he explained to the Court that he would need to be sure of "the facts" before deciding the appropriate penalty. Id. 1750. Apparently satisfied that what he meant by "the facts" was mitigating circumstances as well as the crime itself, the Court closed its questioning. Id. Government counsel quickly picked up on the theme of "the facts," attempting to lead the juror to assure the Court that with respect to punishment, he would indeed "feel it’s important to find all the facts." Id. 1752. When what the juror meant by "the facts" began to become ambiguous, however, government counsel turned to eliciting general reassurances that the juror believed it was important to follow the Court’s instructions. Id. 1754-5 (explaining that he would impose death penalty if "all the facts were correct"), 1756.

It did not take long for defense counsel to establish that what the juror meant by "the facts" was in fact simply the circumstances of the crime. Id. 1763 (explaining that what he meant by "the facts" and "the truth" was "the truth about the crime itself"); see also id. 1765. In particular, when presented with the direct question, Juror #84 stated flatly that he could not consider a sentence short of death where a defendant was convicted of an intentional and deliberate murder. Id. 1766. At this point the juror was plainly subject to excusal because he had admitted that for certain classes of crimes — intentional murders — he would not consider the defendant’s individual mitigating circumstances before deciding on the death penalty.

Despite this unambiguous answer, the Court immediately engaged Juror #84 in a lengthy colloquy in which it appeared to attempt, through leading questions and reminders of its previous instructions, to have him reverse his position and state that he would in fact consider individual mitigating circumstances.

13 BY THE COURT:

14 Q. You've been asked questions here about what you can think

15 of, and so forth. I'm not trying to lead you into any answers,

16 but it's a little uncertain as to your view -- of what your

17 ability to decide is in the punishment issue, if there were to

18 be one, punishment decision. And counsel have asked you about,

19 you know, circumstances that you can think of. You understand

20 there will be instructions about what can and should be

21 considered based on the information. Now, the thing that I

22 think is so unclear to me is whether you're open to considering

23 everything that you would hear at a penalty phase hearing

24 before making a decision.

25 A. Yeah. I think -- I'd have to hear everything first before

1 I --

2 Q. Yeah, but you've talked about the crime; and what you seem

3 to be saying, you want to be knowing everything you could know

4 about the crime.

5 A. Yeah.

6 Q. Now, what about the person who is being judged?

7 A. Well, I'd have to know everything about the whole case, all

8 the evidence and --

9 Q. Well, I think what we've been trying to ask you is whether

10 the person being judged and his life story, as it were, and

11 that human being is of any consideration to you, or you would

12 give any consideration to that.

13 A. Well, yeah, he's a human being. I have compassion for him,

14 too.

15 Q. Can you consider that if two persons were involved in the

16 same crime, their sentences should be different?

17 A. Yes, I do. Maybe if one had more part than the other, I

18 think he should probably get a lesser sentence.

19 Q. And what about the backgrounds of those people? Would that

20 be a factor that you would pay attention to if -- if that were

21 presented?

22 A. I -- yes.

. . . .

4 Q. Now the question is what should be done about it, whether

5 this person should live or die. And that's a much different

6 question than whether the person did it, committed a murder.

7 Do you understand that?

8 A. Yeah.

9 Q. Now, it is with respect to that question that we get this

10 additional information that I've talked about, which can

11 include things that are individual to this person as a human

12 being.

13 A. Uh-huh.

14 Q. And if two persons were involved in the same crime, there

15 may be differences with respect to these aspects of them. Do

16 you see that there can be such differences?

10/7/97 Tr. 1766-9. Although the attempt proved futile, see id. 1770 (stating that he would treat differently situated but similarly charged defendants alike "because of the crime"), the unmistakable impression is that the Court was trying to rehabilitate a juror whose disqualifying sentiments about the death penalty were clear from the outset of the questioning.

The Court has given the appearance on a number of other occasions of trying to rehabilitate potential jurors who have provided answers — either on voir dire or on their questionnaires — that demonstrate an inability to give consideration and effect to mitigating circumstances. See e.g. Objection of Terry Lynn Nichols to the Court’s Voir Dire of Juror #583; see also 10/7/97 Tr. 1663 (after defense counsel elicits answers strongly intimating Juror #348’s predilection for death penalty based solely on certain crimes, Court continues its voir dire with general question about juror’s ability to consider all facts and circumstances). Most recently, the Court summarized Juror #342’s questionnaire answers as stating "that a punishment of life in prison without any possibility of release is something that can be imposed, death penalty can be imposed, you'd have to hear the case to decide," 10/7/97 Tr. 1903, despite the potential juror’s response to Question #124(d) that clearly indicates a belief that the death penalty is the only appropriate penalty whenever human life is taken.

This tendency to rehabilitate life-impaired potential jurors is in distinct contrast to the deferential attitude the Court has taken with potential jurors who express a reluctance ever to impose the death penalty. Juror #795, for example, expressed a principled opposition to the death penalty on his questionnaire. Rather than pressing him with leading questions about his ability to put aside his beliefs, the Court asked him to expand on his views in a general and sympathetic way, even expressing some hesitancy about inquiring about whether his beliefs were related to his church affiliation because "it is a personal thing." 9/30/97 Tr. 493. The contrast with the treatment of life-impaired jurors was even clearer after the Court gave its general instructions about the structure and requirements of the penalty phase and sentencing decision. Instead of pushing Juror #795 to consider his ability to follow these instructions, the Court asked two mild questions, and even led him away from the idea that he could or should put his principles aside for the sake of following the law:

13 Q. Now, my question to you is whether you can do that, given

14 your views. And I guess in a way, this is sort of like asking

15 the questions about publicity that you've seen, because there,

16 as I asked you could you set that aside and decide on the

17 evidence, so now I'm asking you whether you could, if you

18 served on this jury, set aside your own views about the death

19 sentence and consider it along with considering a life-in-

20 prison-without-ever-being-released sentence.

21 Tell us what you could do.

22 A. I could give up the -- looking at the media. That would be

23 easy to push out; but pushing out my morals -- I think it's

24 morally wrong to kill somebody.

25 Q. And do you think, then, that in your own case, now, looking

1 at you as an individual -- because each juror has to decide

2 this question, you know. It isn't a question of majority or

3 consensus or anything like that. Each juror has to make the

4 decision that you simply -- I'm not trying to put words in your

5 mouth. I'm just trying to assist in the expression of them.

6 And if you don't agree with the way I've expressed it, you will

7 tell me. But what you're telling us, you simply couldn't come

8 down on the side of the death sentence?

9 A. That is true, sir.

10 THE COURT: Okay. Now, we'll give an opportunity for

11 counsel to inquire further.

9/30/97 Tr. 495-6 (emphasis added).

There are a number of laudable reasons why the Court might treat death-impaired jurors with greater deference than life-impaired jurors. One is that a principled opposition to the death penalty is an honorable and defensible moral position that deserves respect, while a belief that certain crimes should automatically be punished with death regardless of the life history and personal characteristics of the defendant is a moral anachronism that deserves to be corrected rather than respected. Another is the traditional (and appropriate) reluctance of the judiciary to interfere with or question the core First Amendment beliefs, religious, political or moral, that underlie principled opposition to the death penalty. No such core values are implicated in a belief in the automatic imposition of the death penalty, of course.

We have no doubt that one or more of these reasons lies behind the Court’s disparate treatment of life-impaired and death-impaired potential jurors. Nevertheless, regardless of its good intentions, the fact remains that this disparate treatment results in a record that is significantly skewed in favor of excusing death-impaired jurors over those who are life-impaired. The Court’s vigorous attempts to move life-impaired jurors away from their disqualifying views leaves a record that is often sufficiently ambiguous or contradictory to cloud what would otherwise be clear excusals for cause, while its deference to the views of death-impaired jurors leaves their honest opposition to the death penalty unchallenged and unambiguous. The threshold for excusing Witherspoon-excludible jurors is quite high: "It is entirely possible that a person who has a ‘fixed opinion against’ or who does not ‘believe in’ capital punishment might nevertheless be perfectly able as a juror to abide by existing law — to follow conscientiously the instructions of a trial judge and to consider fairly the imposition of the death sentence in a particular case." Adams v. Texas, 448 U.S. 38, 44-5 (1980) (quoting Boulden v. Holman, 394 U.S. 478, 484-4 (1969)). This threshold is effectively lowered, relative to the standards for Morgan-excludible jurors, by the Court’s differential treatment of the two groups.

Mr. Nichols therefore respectfully objects. Consistent with our previously stated position, we do not seek to have the Court attempt to rehabilitate death-impaired jurors. Rather, we request that the Court desist in — or, where some further questions are warranted, moderate — its rehabilitation of potential jurors whose disqualifying life-impaired positions have become apparent.

II. The Court’s question to potential jurors regarding their ability to follow its sentencing phase instructions should be couched in terms that makes clear that the juror must take into account the background and personal characteristics of the defendant as well as the circumstances of the crime before making the life/death decision.

After some preliminary questions and explanations, the Court has explained to each potential juror in fairly specific terms the procedural requirements of the Federal Death Penalty Act of 1994 and the Eighth Amendment, including the requirement that the juror consider mitigating circumstances as well as aggravating circumstances. Because of its complexity, this explanation is usually fairly lengthy, often requiring the Court to punctuate its remarks with questions to make sure that the juror understands what has been said so far. See e.g. 10/7/97 Tr. 1641-42. At the conclusion of this litany, the Court then asks the juror whether he or she can follow these procedures if so instructed. Because of the length of the preceding explanation, the Court frequently asks this question in a summary fashion. See e.g. id. 1642 (Juror #348; "Q: And do you believe that you could do that?"); 1907 (Juror #342; "Q: ". . . Answer the question as to whether you can do that. Can you?").

Mr. Nichols respectfully suggests that asking this question in a summary fashion risks two misunderstandings, both of which are destructive of Mr. Nichols’ rights. First, because a vote for death constitutes a more significant moral decision for a qualified juror than a vote for life, phrasing the question in the form of "Can you do that?" or "Could you do it?" often sounds as if the Court is asking whether the potential juror "has what it takes" to vote for death. Mr. Nichols presumes that an implicit suggestion to the juror that the ability to vote death is more important than the ability to vote life is not what the Court intends by its question. Second, even if the Court’s question is not interpreted that way, the important nuances of the statutory and Eighth Amendment requirements are likely to be lost in a summary "Can you do it?", making the potential juror’s inevitably affirmative answer relatively meaningless.

Mr. Nichols therefore respectfully requests that in lieu of these summary questions the Court ask a more specific question that explicitly includes the Eighth Amendment requirements, for example, "Having heard this explanation, do you think that you will be able to base your decision about whether the defendant should be sentenced to life or death on his personal background and individual characteristics, as well as the circumstances of the crime?" Mr. Nichols respectfully submits that asking the question in this way is likely to generate more informative answers and may avoid some of the confusion discussed above.

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)