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In the Courtroom of the Absurd

March 24, 2004|Andrew Cohen

Terry Nichols, a man no one presumes to be innocent, this week went on trial again for his role in the Oklahoma City bombing. He was put on trial again despite the fact that most Oklahomans thought it wasn't a good idea. He went on trial again despite the fact that the federal courts almost certainly will reject the death sentence his state court judge and jury almost surely will impose. He went on trial again at enormous relative cost to a financially strapped state.

Nichols was put on trial again even though he already was serving a federal life sentence as Timothy McVeigh's co-conspirator in the massive bombing that left 168 people dead at the Alfred P. Murrah Federal Building on April 19, 1995. He went on trial again even though a well-chosen federal jury already determined, in Denver in 1997, that reasonable doubt existed about whether he actually or legally "murdered" anyone at the Murrah building. He went on trial again even though the federal courts ruled in 1996 -- long before McVeigh and Nichols were convicted -- that the two could not receive a fair trial anywhere in Oklahoma.

Why is this happening? Simply and solely because some family members of some of the victims of the bombing believe he ought to die for his role in the crime. Not satisfied with the perfectly reasonable result of the first Nichols trial -- the guy was acquitted of murder, remember -- these folks want Nichols dead and won't feel sated until he too peers up into the closed-circuit camera from the gurney, as McVeigh did on June 11, 2001, when the Oklahoma City bomber was given a lethal injection at the federal prison in Terre Haute, Ind. Some victims' relatives were crying out then for McVeigh's death, but apparently his execution nearly three years ago did not bring "closure," whatever that means. What it brought was more questions, most of which will not be answered by a second Nichols trial.

Nichols' defense in the McAlester, Okla., proceeding will put the federal government on trial. Defense attorneys will tell jurors about all the post-bombing leads that federal authorities did not track down fully; about all the shadowy figures who may or may not have known what McVeigh and Nichols were up to but who have not been prosecuted. Although this defense almost certainly will fail, the questions it will raise are legitimate. So why the rush to execute Nichols before he has a jailhouse epiphany and decides to tell all?

Advocates of this state trial talk about "justice" for their loved ones. They contend that a 160-count state murder case against Nichols is necessary because 160 of the 168 murder victims were not adequately represented during the federal trials in Denver. It is true that there were only eight murder charges against Nichols and McVeigh in the first bombing trials. This is because there is no federal murder law for civilians and there were eight federal law enforcement officials who died at their posts. Technically, therefore, and for purposes of the doctrine of double jeopardy, Nichols has never before been tried for the deaths of the 160 victims who were not federal officials.

But it is not true that those victims were forgotten or ignored during the Denver trials. Nichols was tried and convicting of conspiring to terrorize and destroy all of the victims of the bombing, and even McVeigh's attorney named all of the victims, one by one, during the first Oklahoma City bombing trial. Indeed, part of the reason why Nichols was convicted at all was because prosecutors were able to link his relatively small part in the crime to the enormity of the crime itself.

That's the point. Nichols was convicted. And yet now he will be retried for precisely the same conduct because the result the first time out was not satisfactory to some. This is permitted under our laws, but that doesn't make it right. There is no possible way that Nichols can receive his 6th Amendment right to an "impartial jury" when all the possible jurors know that he's guilty of at least some part of the bomb plot.

During jury selection, one prospective juror testified she had heard other prospective jurors talking about lying to the judge in order to try to make it onto the panel to convict the defendant. Another potential juror said she heard colleagues talking about writing a book about jury duty in the Nichols case.

So far as we know, the six men and six women who actually will serve as Nichols' jurors come into the trial without any such obviously impure motives. But that doesn't mean they come into the trial with the ability to be impartial.

So the new Nichols trial begins as a complete perversion of justice. The judge and jury all will pretend that a guilty man has the presumption of innocence and then they will convict him and try to have him executed. The whole thing is a farce, a sham, a waste -- a fiction that represents one of the darker chapters in the legal history of this country.

*

Andrew Cohen is a legal analyst for CBS News. He has covered the Oklahoma City bombing cases since 1996.

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