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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Criminal Action No. 96-CR-68

UNITED STATES OF AMERICA,

Plaintiff,

vs.

TERRY LYNN NICHOLS,

Defendant.

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REPORTER'S TRANSCRIPT
(Trial to Jury: Volume 142)
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Proceedings before the HONORABLE RICHARD P. MATSCH,
Judge, United States District Court for the District of
Colorado, commencing at 9:00 a.m., on the 24th day of December,
1997, in Courtroom C-204, United States Courthouse, Denver,
Colorado.

Proceeding Recorded by Mechanical Stenography, Transcription
Produced via Computer by Paul Zuckerman, 1929 Stout Street,
P.O. Box 3563, Denver, Colorado, 80294, (303) 629-9285
APPEARANCES
PATRICK RYAN, United States Attorney for the Western
District of Oklahoma, 210 West Park Avenue, Suite 400, Oklahoma
City, Oklahoma, 73102, appearing for the plaintiff.
LARRY MACKEY, SEAN CONNELLY, BETH WILKINSON, GEOFFREY
MEARNS, JAMIE ORENSTEIN, and AITAN GOELMAN, Special Attorneys
to the U.S. Attorney General, 1961 Stout Street, Suite 1200,
Denver, Colorado, 80294, appearing for the plaintiff.
MICHAEL TIGAR, RONALD WOODS, ADAM THURSCHWELL, REID
NEUREITER, and JANE TIGAR, Attorneys at Law, 1120 Lincoln
Street, Suite 1308, Denver, Colorado, 80203, appearing for
Defendant Nichols.
* * * * *
PROCEEDINGS
(In open court at 9:00 a.m.)
THE COURT: Be seated, please.
Good morning.
MR. TIGAR: Good morning.
THE COURT: There was filed earlier this morning a
motion of the defendant to preclude a sentencing hearing
pursuant to 18 United States Code Section 3591 on grounds of
collateral estoppel.
Also filed earlier this morning is a report of the
United States regarding sentencing allegations.
And there is before me an earlier-filed -- on
December 22 -- renewed motion of Terry Lynn Nichols to strike
the notice of intention to seek the death penalty.
So I believe those go together. But I assume that
you've exchanged these new pleadings that were filed.
MR. TIGAR: Yes, your Honor.
THE COURT: All right. And I've reviewed them, so
we're ready to proceed.
The Government's report regarding sentencing
allegation, I guess, in a sense, is an amendment to the notice
of intention to seek the death penalty and eliminates some of
the -- well, it eliminates 3591(a)(2)(A) and (B) as intent
factors and then also modifies the aggravating -- statutory
aggravating factor.
So Mr. Tigar, we'll proceed on your motion to preclude
a sentencing hearing. And if you want to also address the same
matters that are in the renewed motion to strike, you may, of
course, do so.
ARGUMENTS RE SENTENCING HEARING
DEFENDANT'S ARGUMENT
MR. TIGAR: Well, if your Honor please, the Court on
September 25, 1996, described the procedure that would be
followed in the event of convictions in this case. And at page
15 of your Honor's opinion, you said that the jury will proceed
in a sequential manner, first determining whether the
Government proved one of the four intentions described in
Section 3591(a)(2)(A) through (D). And then the Court said --
and followed this up with instructions in the McVeigh case --
that if the jurors are not unanimous in finding that one of
these intentions existed, their task is complete and the Court
will sentence according to the sentencing guidelines.
Thus, the threshold issue is whether or not the
Government is precluded at this procedural hour from going to
the four intentions that are described in 3591(a)(2)(A) through
(D).
This morning, in a notice of intention -- excuse me --
in a report to the Court, the United States has withdrawn from
(A) and (B), leaving (C) and (D).
THE COURT: Right.
MR. TIGAR: Now, it is well settled that different
stages of a bifurcated proceeding require the Court and the
parties and a jury, if there is one, to give full respect to
and effect to findings made by the jury in the first part.
That is a rule that applies both in civil and criminal cases.
For example, in the case of Butler vs. Pollard, in 800
F.2d 223, Judge Lee West down in Oklahoma had tried a case that
involved both legal and equitable issues.
Under Beacon Theaters vs. Westover, Judge West tried
the legal issues first to a jury, resulting in a defense
verdict and findings. He then said that despite that, he
thought the plaintiff was entitled to an injunction and went
ahead and issued findings and issued an injunction. And the
Tenth Circuit in the case cited said that preclusion applies to
prevent that.
In criminal cases, of course, the doctrine has a
constitutional dimension. In Ashe vs. Swenson, the case that
we cite, the Court told us how this is supposed to work.
You'll recall that the defendant there was charged with the
robbery of six different people and the theft of a car as a
result of a card game. He was acquitted of the first count
with respect -- on the first trial with respect to the first
victim, and the state sought to retry him with respect to the
second victim. The Supreme Court said no; that using the
analysis, that is not just the jury's verdict but looking at
the whole record, it was clear that the jury's acquittal with
respect to the first victim established facts that were
inconsistent with the Government's theory in the second case.
That was followed up by the Supreme Court's decision
in Simpson vs. Florida. In Simpson, which is at 403 U.S. 384,
Simpson was convicted of robbing a manager of a store and a
customer in the store. His conviction for robbing the manager
was overturned. He goes back, he's tried again for robbing the
customer, and then the state wants to prosecute him again for
robbing the manager; held no, you can't do it; that is to say
that the jury's finding necessarily implicates the finding that
he didn't commit a robbery while he was in the store.
This doctrine, which is -- starts in Ashe, has special
application to capital cases as the Supreme Court held in
Bullington vs. Missouri. These are cases that are cited in our
memorandum.
But the point here is that the jury in this case has
found guilt on Count 1, in which there was no requirement that
they find an intent to kill and in which the Court specifically
instructed the jury that even minor participation would be
sufficient.
Then the jury found that the defendant had only that
mental state described as sufficient for voluntary -- or
involuntary manslaughter at page 20 of the Court's
instructions, which is a lawful act done without due caution
which might produce death and the defendant knew that such
conduct was a threat to the lives of others, essentially a
negligent or gross negligence standard.
In addition to that, the jury, having convicted on
Count 1, acquitted on Count 2 and 3. The significance of the
acquittal on Count 2 is that Count 2 is under the identical
statute, 2332a, except that it proceeds on an aiding and
abetting theory and not on a conspiracy theory. And when we
examine the jury's work, we can also examine the notes that the
jury sent on this. But the Court affirmed at page 20 of the
instructions that the defendant had to participate in the
conduct and seek by his actions to make it succeed. Those are
two of the four elements of aiding and abetting at page 20. So
the jury acquitted on that.
Now, using that as a backdrop, let's turn to the
question of how in the world the Government is going to have
a -- a trial here about 3591(a)(2). "Intentionally
participated in an act contemplating that the life of a person
would be taken or intending that --" legal "-- lethal force
would be used in connection with a person." That standard is
inconsistent with the jury's acquittal on Count -- on
first-degree murder and second-degree murder.
There are cases, like Schiro vs. Farley, in which the
jury doesn't fill out the verdict form -- and it might have
happened here. The jury would simply leave blank the first-
degree and second-degree and they'd go right to involuntary
manslaughter. Here, they didn't. They acquitted the defendant
of all forms of intent-to-kill homicide, including implied-
malice homicide under second-degree murder, the common-law
doctrine that intent to kill can be shown by a certain kind of
wanton disregard.
That, by the way, we take not only as a statutory
guideline, but we've cited again Enmund and Tison; that is, the
Court is making a decision here at the juncture of two
important constitutional provisions. There cannot be a death
sentence without proof of major participation and an intent
that rises at least to the level of second-degree murder,
depraved-heart murder, which is the Model Penal Code equivalent
of old-fashioned second-degree murder or malice aforethought.
Turning then to (D) -- The second of those
constitutional provisions, of course, is this double jeopardy
notion, which while the contours of the right are clear, what
we're talking about is not something that can be corrected
afterwards: go through a trial, hear 120 witnesses, many of
whom have already given press conferences saying that they
despise this jury's verdict and they don't like it and so on,
putting the families through the trial, both the families, to
testify for the prosecution and Mr. Nichols' family and
afterwards say, well, let's take a look at it.
The double jeopardy issue says that Mr. Nichols now
has a right not to face this prospect at all because the jury's
verdict in the first phase is preclusive.
So now we come to (D), intentionally and specifically
engaged in an act of violence, knowing that the act created a
grave risk of death to a person.
Now, the Government's difficulty with attempting to
rely on this is twofold: First, the defendant has to engage in
an act of violence, not contemplate it, not agree to it. He
must engage in it. And the jury has acquitted the defendant of
engaging in every act of violence that was charged in Counts 2
and 3 of the indictment.
The jury has also acquitted the defendant of the
mental element that's covered under (D).
So what we have here, your Honor, is a situation in
which the threshold finding simply cannot be made.
Now, when your Honor wrote the opinion back in
September of 1996, I don't know that any of us contemplated
exactly what procedural situation we would face. But the Court
in that process -- that opinion and its earlier one -- did hold
that intent to kill was not going to be required for proof in
Counts 1, 2 and 3. It would, of course, be required in Counts
4 through 11, and that the Court also recognized that
essentially the process of capital sentencing is a three-phase
process in the second half. The first phase is that if any one
juror -- if you put it to the jury -- says, well, we just don't
find beyond a reasonable doubt one of these four things, the
process is over, the jury goes home, which is why we have the
alternative proposal, since there doesn't appear to be new
evidence here with the exception of something we'll get to, if
we need to, about Brady issues.
We ask the jurors: Does any one of you think that
they haven't proved that beyond a reasonable doubt? If so,
we're done; that is to say, do as Judge Berrigan did and
bifurcate the bifurcation so as to avoid the spectacle. But
that's only alternative relief. The fact is these are
threshold findings. The Government repeatedly referred to them
as "gateway findings." If the Constitution and the finding of
the jury, which the Government says it fully accepts, prevents
that gateway from being crossed, then that's the end of the
matter.
Interestingly, your Honor, the Government has conceded
that this is so; that is, I thought I was going to have to come
in here and argue to the Court that your Honor has a power that
the Government would say your Honor does not possess to stop
this thing right now. But I don't have to, because the
Government -- albeit in a procedurally defective report which
I'll get to if we need to -- has withdrawn any reliance on (A)
and (B), no doubt in some interpretation of the jury's verdict.
Thus, your Honor's power to intervene here has been conceded by
the Government; that is to say, the Government recognizes that
it cannot put itself in the position of walking up to that jury
rail there or standing here and saying: Well, members of the
jury, it was all very nice these three months, but we think you
did a bad job here and now we want you to find something that
you didn't find. Nobody in the process is free to do that.
And so if the Court please, we respectfully submit
that the jury's verdict is binding and it is conclusive; that
is to say that it fails as a matter of the Eighth Amendment to
establish a Tison/Enmund threshold and fails as a matter of
statutory interpretation to give the Government any comfort and
indeed amounts to a finding of reasonable doubt that precludes
the Government as to every single one of these elements.
Now, that is our argument, your Honor, with respect to
the first phase.
We also have an argument with respect to the second
phase. I can withhold that, or I can go on now.
THE COURT: Meaning the aggravating factors?
MR. TIGAR: Yes, your Honor. With respect to these --
the adequacy of the Government's notice and the aggravating
factors.
THE COURT: Well, let's withhold that and talk about
3591(a)(2)(C) and (D). Then we'll come to that if necessary.
Mr. Connelly, are you going to address this?
MR. CONNELLY: Yes, your Honor. Thank you.
THE COURT: All right.
PLAINTIFF'S ARGUMENT
MR. CONNELLY: The jury found in Count 1 of the
indictment beyond a reasonable doubt that Terry Nichols had
conspired to bomb the Murrah Building and the persons inside.
They further found that that crime of conspiracy resulted in
the deaths or at least one death of another person, and they
further found that those deaths were foreseeable.
The jury found in Counts 4 through 11 -- or failed to
find that he had acted with intent -- premeditated intent to
kill or malice aforethought for second-degree murder.
Tison and Enmund -- the Supreme Court's decisions in
Tison and Enmund cases hold that a felony murderer -- which, in
effect, this is a felony murder; it's a felony that resulted in
deaths of others, foreseeable deaths of others -- may be
sentenced to death even though he personally did not commit the
act and even though he personally did not intend to kill. And
that, we would submit, is a fair reading of what the jury found
in Counts 4 through 11.
The question therefore is where in this spectrum of
intent would the jury find that Terry Nichols acted. And there
is no finding on that. They found on the one hand that he
foreseeably caused the deaths of others. They found on the
other that he personally did not intend to kill. Tison and
Enmund says there is an in-between area in which the death
sentence can constitutionally be imposed; and those, we submit,
are, in effect, the intent elements in Section (C) and (D) of
3591(a)(2).
We are entitled, your Honor, to ask the jury to make
those findings. Those findings have not been made. We agree
that under the doctrine of collateral estoppel applied in
criminal cases that if the defendant proves or carries the
burden -- and it is his burden of trying to preclude the
Government from going forward in the case -- if he shows that
the jury necessarily decided an issue adversely to the
Government that we would not seek to relitigate that. And we
accept that even on intent to kill. So we are not seeking to
relitigate did he intend to kill the persons inside the Murrah
Building. We are entitled, however, to ask the jury to find
that the deaths that they found were foreseeable, were the
result of a callous and wanton action taken with reckless
disregard for life. And that finding has not been made
adversely to the Government by any of the jury verdicts.
And again, I think it's hard it to read these verdicts
in some ways. The Supreme Court has made clear that the jury
has the right to return inconsistent verdicts and that -- that
fact may be the result of compromise, may be the result of a
lot of other reasons, and it's not for any of us to speculate
as to why the jury returned the verdicts they did. The
question is did the jury necessarily find that the Government
did not prove the intent elements set forth in Section
3591(a)(2)(C) and (D), and we submit they clearly did not
because that question was not submitted to them.
THE COURT: What's the definition of an act of
violence under (D)?
MR. CONNELLY: I think 18 U.S.C. Section 16 talks
about "crime of violence"; and the Tenth Circuit just a couple
of months ago in the Lampley case said that a conspiracy to
build an explosive device was a crime of violence. And that's
a case out of eastern Oklahoma and decided in October of '97.
So the Tenth Circuit did say that a conspiracy -- the same type
of conspiracy that this defendant is charged with -- I think in
that case was to blow up a building in Houston that never
proceeded to fruition, but there was a conspiracy to use and
build an explosive device. The Tenth Circuit said that is a
crime of violence within the meaning of the statute.
I don't think "act of violence" is specifically
defined; but 18 U.S.C. Section 16 does define "crime of
violence." And I think that the case law is clear in this
circuit and elsewhere that this type of conspiracy is an act of
violence.
THE COURT: Well, what's the Government going to argue
to the jury?
MR. CONNELLY: That the -- well, there are different
stages of argument, obviously --
THE COURT: Well, I mean for these two points.
MR. CONNELLY: As to the intent, that he engaged in a
conspiracy to bomb the Murrah Building and the persons inside;
that that was an act of violence and that it was undertaken
with wanton and reckless disregard for human life such that the
death penalty is appropriate; that the jury need not find
intent to kill; that they can find this in-between element.
They found, as I said, on the spectrum that the crime
foreseeably resulted in death. They have found, on the other
hand, that he did not premeditate and intend the death of these
persons, so there is that -- that in-between area, that Tison/
Enmund area that still remains open and a matter to be
litigated.
THE COURT: Let's assume -- because it does seem to me
fair reading here -- that the jury may have believed in
determining the elements of the offenses here as they did that
Mr. Nichols participated with Mr. McVeigh in a conspiracy; that
the objectives were as described but that -- in the indictment
but that the objectives were not so specific as would be
specifically to the Murrah Building.
MR. CONNELLY: I guess we could all speculate as to
what they found. The indictment --
THE COURT: Well, I want you to take my assumption.
MR. CONNELLY: Okay.
THE COURT: And therefore that Mr. Nichols' intent was
to participate in the construction of a weapon of mass
destruction, expecting that Mr. McVeigh and/or others would use
it but did not have the specific intent that it be used against
the Murrah Building but that it be used as an act of terrorism
as we have defined it, and that is to intimidate or coerce a
government.
Now, if that be the approach, does that meet
subsection (C) and (D), intent?
MR. CONNELLY: I think it does. And I will, of
course, accept the Court's premise. I don't think that's a
necessary reading. I think the burden is on the defendant to
show that they necessarily decided that way. I agree that
could be a reading.
THE COURT: I'm not saying that it's necessary. I
obviously -- what we have to consider, though, is a set of
facts that's already here and that could then be amplified at
the penalty phase hearing that would be -- would reach (C) and
(D). And what I'm asking you is in your view that when it says
"contemplating that the life --" I'm talking about (C) now --
"contemplating that the life of a person would be taken or
intending that lethal force would be used against a person"
that here again it doesn't have to be a specific target.
MR. CONNELLY: We know from the jury finding that they
found that the crime that they did convict him on foreseeably
resulted in death. So it was foreseeable. So the question is
on top of foreseeing that death resulted, could he have
contemplated -- or not could he have: Did he contemplate that
death would result? And I would submit that that is not a
finding that's necessarily been made by the jury.
THE COURT: It doesn't have to be a specific death.
MR. CONNELLY: It does not have to be; and then,
certainly, when you get down to (D), you talk about "such that
it created grave risk of death."
THE COURT: "Grave risk of death."
MR. CONNELLY: And I think that anybody that
participated in that kind of explosive device that the jury
found he conspired to build, foreseeing that death resulted, I
think it's a fair inference to ask the jury to find that he
knew that there was a grave risk of death presented by that
conduct. So I think that, certainly, what we're asking to go
to the jury on in the sentencing phase is consistent, fully
consistent with what they've already found and certainly is not
precluded by anything that they have found adversely to the
Government. So I think as a matter of Ashe vs. Swenson or
collateral estoppel that we are entitled to go forward.
I would point out -- I've accepted the Court's
premise, obviously, of what they might have found; but the
instructions on page 8 of the instructions say what the
Government must prove is that the defendant, Terry Lynn
Nichols, and at least one other person did knowingly and
deliberately arrive at some type of agreement that they and
perhaps others would use a weapon of mass destruction against
the Alfred P. Murrah Building in Oklahoma City and the persons
in it. So I think assuming the jury followed the instructions,
as I think the case law requires us to do -- I think the jury
found more than what the Court is postulating they may have
found. But even assuming they only found what the Court says
they may have found, I think that's sufficient under Section
(C) and (D) to go forward.
THE COURT: Okay. Mr. Tigar?
DEFENDANT'S REBUTTAL ARGUMENT
MR. TIGAR: The Government invokes the felony murder
doctrine. Five times in this court, the Government has
deliberately disavowed felony murder as a basis for proceeding
here. And now they want to revive felony murder as a basis for
going forward into a penalty phase.
The Government is precluded. They've never alleged
felony murder. They've affirmatively led us to believe that
this is not a felony murder case; and therefore, any such
theory has got to be set aside.
And to claim that involuntary manslaughter can be
somehow assimilated to felony murder, of course, completes
the -- what we'd submit is the absurdity of Government's
position.
So let's turn to our burden under Ashe vs. Swenson.
In Ashe, there were six victims. In Simpson, there
were two victims. The fact that this jury found no intent to
kill with respect to any of the eight victims in Counts 4
through 11 necessarily implicates a finding that Mr. Nichols
did not possess the intent to kill with respect to anybody else
that was killed in the Murrah Building or near it or by that
device. That is the rationale of Ashe vs. Swenson. There is
only one transaction here. The transaction is the alleged
construction of a bomb. We know a bomb was constructed. The
question is what is Mr. Nichols' role.
Given the fact that there is a single transaction just

as in Ashe, you can't divide up the intent into geographical or
temporal phases and get away from the proposition that this
jury acquitted Mr. Nichols of first-degree and second-degree
murder.
THE COURT: Well, by your interpretation of the jury's
findings, though, they couldn't have found him guilty of the
conspiracy, either.
MR. TIGAR: No, your Honor, that is not true.
THE COURT: Well, why isn't it?
MR. TIGAR: Because, your Honor -- if I can get the
instructions -- the elements of the offense, your Honor, to
which the jury looked are that two or more persons, including
the defendant, agreed to use an explosive bomb in a truck as a
weapon of mass destruction against the Murrah Building and the
persons inside it; then that the defendant knowingly and
voluntarily became a member with the intent to advance or
further it; that the achievement would have affected interstate
commerce. Then what the Government quotes is that the
defendant did reach an agreement at some point in time that
they would use such a device.
Under conspiracy law, there is no concept of locus
poenitentiae; that is to say, a defendant, even if he
affirmatively proves withdrawal, has a great problem once the
unlawful agreement is formed. And thus if we're looking for
ways to make the jury's verdict consistent, what we see here is
that when the jury actually talks about agreement, they
conclude that at some time, an agreement is formed, but they
also conclude when they get to Count 2 and the Government has
to prove beyond a reasonable doubt that the defendant took some
action beyond mere agreement, they acquit him. So it isn't
just the 4 through 11; he's acquitted on Count 2, your Honor.
And the only way to make the verdict of acquittal on Count 2
consistent with the verdict of conviction on Count 1 is to
recognize that as your Honor said at page 20 of the
instructions, you know, they had to prove all four of those
things there, which includes an act.
That, of course, is crucial to our argument with
respect to the term "act of violence" in (D). Act of violence
is not the same thing as crime of violence, if you read the
statutory provision. An act -- the law knows the difference
between a crime and an act. The term "act" explains itself and
is indeed "sought by his actions . . ." The Court has talked
about acts in Count 2, and that's what we were acquitted on.
So the jury's verdict, if we are to regard it as
consistent, says essentially that at some point, Mr. Nichols
participated in an unlawful agreement that had a certain
objective but that when it came time to do actions, he lacked
the intent to kill.
Now, that is significant in two senses. And now the
Government -- and the Government wants to overlook that. First
is, of course, the Tison standard of some depraved-heart
murder, being the baseline. Second is the Enmund standard;
that is, if we're to read these verdicts as consistent, we have
to look at a time when an agreement was formed, but the jury in
1, 2, 3, 4 -- in Counts 2, 3, 4, 5, all the way through 11,
saying we acquit Mr. Nichols with respect to actions, which, of
course, implicates the so-called "major participation" element.
At least in Tison and Enmund, you know, the state was told, you
know, you can't convict somebody, you can't subject them to a
death penalty unless you get them close enough to the -- to the
action that they can actually have the intent to kill and
fulfill that requirement of major participation.
Your Honor --
THE COURT: Well, let me take that -- I want to make
it clear because I think it may be confusing to the public that
the law is clear that the validity of the jury's verdict does
not depend upon its internal consistency. The jury is entitled
in a criminal case to have an inconsistent verdict. I'm not
saying this verdict is inconsistent. I don't want to be
misunderstood about that. But now we're talking about
something different.
MR. TIGAR: Yes, your Honor. Of course, we understand
that position.
THE COURT: If we read Section (C), subsection (C) of
3591(a)(2) to say this: The defendant intentionally
participated in an act and the act becomes agreement in an
agreement contemplating that the life of a person would be
taken or intending lethal force would be used and the victim
die, doesn't that fit what you've just been talking about?
MR. TIGAR: Well, your Honor, if you change the word
"acts" to "agreement" --
THE COURT: Yes.
MR. TIGAR: -- then you get closer. So let me first
begin by suggesting that "act" is a word chosen by the Congress
and the reason the Congress chose the word "act" and not
"agreement" is that there has never been a case since Furman
was decided in which any Federal Court has upheld a death
penalty based upon mere agreement; that is to say, the
conspiracy. There has never been one. It flunks the Coker
test.
As your Honor repeatedly told the jury in voir dire,
you know, basically, when we talk about the death penalty, we
are talking about murder; that is, homicide committed with some
kind of intention with respect to resulting death. And I can
prove it to your Honor.
You cannot rewrite this statute, your Honor, by
substituting the word "agreement" for "act," I respectfully
submit. After all, if you look at 3592, which the Government
relies on, you look at (C), aggravating factors for homicide --
that is to say the Congress, in defining aggravating factors
that would apply to this situation, speaks of "homicide." And
that so -- if there is any doubt as to whether the word "act"
has to be read to be act and not agreement, that should dispel
it. The Congress, by using the word "homicide," doesn't refer
to some agreement to do homicide.

THE COURT: Well, the statute says, 3591(a)(2), "Any
other offense for which a sentence of death is provided," and a
sentence of death is provided for the crime of conspiracy under
2332a(a).
MR. TIGAR: Yes, your Honor, provided that the
Government is not precluded from going forward by jury findings
of no intent to kill; that is to say, the constitutionality of
2332a depends upon satisfying Enmund and Tison. A minor
participant in the conspiracy -- and your Honor permitted this
jury to convict based on minor participation. You told them
they could.
THE COURT: Well, but, you know, you're talking about
two different things now. You're talking about the
Constitution, which of course, we have to be concerned about,
and also the statutory interpretation. But if we deal first
with the statutory interpretation here, isn't it true that the
plain language of the statute provides under 3591 for a penalty
of death where the underlying statute -- that is, this
conspiracy statute -- specifies a penalty of death. "If death
results as" is the language of the act in 2332a(a); and then
obviously, we must come back to these intentional forms of
intent. But one of the forms of intent is participated here in
an act contemplating the life of a person would be taking --
taken or lethal force used.
Now, you know, the jury says that there was an
agreement to bomb the Murrah Building.
MR. TIGAR: Your Honor, let me take those a step at a
time. First let us suppose that the jury had not returned 16
not guilty verdicts on Counts 4 through 11, which they did.
But let's assume they didn't. Then it would be open to the
Government to prove beyond a reasonable doubt if it had
obtained a conviction only on Count 1 and that was the sole
count charged -- they could prove that the defendant did
intentionally participate in an act contemplating that the life
of a person would be taken or intending that lethal force would
be used.
Now, they'd be free to try to prove that. That's not
the question here.
The question is: Are they precluded?
Now, the first point is if your Honor is going to read
the term "act" to include agreement, then, quite frankly, we
disagree with the Court. The act requirement is an additional
requirement over and above the agreement requirement for the
conspiracy charge. If the Congress had intended to say
"agreement," they would have said agreement. In the next
sentence, they say "act of violence."
Then "contemplating that the life of a person would be
taken or intending that lethal force would be used against a
person": If the Government were free to argue -- that is to
say without the verdicts on 4 through 11 -- they might present
evidence with respect to that. But a contemplation that the
life of a person would be taken or intending that lethal force
would be used is flatly contrary to what the jury found by
acquitting Mr. Nichols on first-degree and second-degree murder
on Counts 4 through 11; so whatever else there may be, in the
abstract, your Honor, that decision, that verdict stands and is
entitled to the respect of all the parties here.
THE COURT: Why isn't the entry into an agreement an
act? It is the act of entry into an agreement, isn't it?
MR. TIGAR: Your Honor, that is a possible reading;
however, it is foreclosed by the language of the statute, which
uses "act" and "act of violence"; and it's also foreclosed,
your Honor, by your Honor's own instructions to this jury and
by the jury's questions asking what had to be shown for a
conviction under Counts 2 and 3. The Court's instructions
could not have made clearer the distinction between "agreement"
and "act" with respect to Count 1 and Count 2, because after
all, Count 1 is a single object conspiracy. Having made the
distinction clear to the jurors, the jurors having responded by
saying we find agreement but not action to go through with it,
the Government is foreclosed from the argument that it wished
to make even if one wanted to say that the statute shouldn't be
read literally.
THE COURT: Well, it's your position that it's a
violation of the principle of Tison for a death penalty to
result from a conspiracy where the -- where the conspirator on
trial did not participate in a killing?
MR. TIGAR: Major participation and depraved-heart
intent with respect to resulting death are Tison/Enmund
ingredients. In addition, your Honor, with respect to making
conspiracy without these additional gateway findings, not
waiving our earlier position that they had to be instructed on
earlier, by making a conspiracy, a criminal conspiracy of any
description, having a person death-eligible raises Coker vs.
Georgia problems; that is to say, there has got to be some form
of an offense called "homicide" and those elements that are
like homicide have to be proved at some point or another.
THE COURT: All right.
Mr. Connelly, do you want to -- this -- procedurally,
of course, it's a -- the defendant's motion; but I'll permit
you to address it further.
PLAINTIFF'S SURREBUTTAL ARGUMENT
MR. CONNELLY: Thank you, your Honor.
I think the Court has framed the analysis well. I
think there are two issues here. One is a matter of statutory
construction, one is a matter of constitutional interpretation.
The matter of statutory construction, the statute could not be
clearer, we submit: Section 2332a, the offense of conviction
in Count 1, could not be clearer that a conspiracy may give
rise to the death penalty if death results. And I think in
light of 2332a, the Court's interpretation of 3591 that an act
of violence may be an agreement to commit a crime of
violence -- that, in other words, the agreement may be the
act -- is clearly the correct interpretation. I think that's
consistent with general conspiracy law that the agreement is
the act, entering into the agreement is an act, and I think
that's made -- confirmed by the fact that 2332a contemplates
that a conspiracy itself that results in death may give rise to
the death penalty.
So I think the question then for -- and secondarily to
that, I think it can't be assumed in any way that the jury
found that all Mr. Nichols did is agree and performed no acts
in furtherance of that agreement. The only way to infer the
agreement is to examine the acts; so I think we have to assume
that the jury at least found that Mr. Nichols engaged in some,
if not all, of the overt acts in order to support the
conspiracy conviction.
So I think for two reasons, (1) that the agreement is
the act, the statute is satisfied and second of all, because
there are acts in addition to the agreement that we have to
assume that the jury found.
Now, we don't have to debate did they find that he
bought ammonium nitrate but not this or that. But certainly, I
think it's fair to assume that the jury found that Mr. Nichols
engaged in some acts in furtherance of the conspiracy so that
the conspiracy itself is the act and that he also engaged in
acts.
The question then becomes is the statute
constitutional as applied to this case? And we submit that
there is no basis for holding that the Eighth Amendment bars
the Government from going forward in this case. The defense
certainly has cited no case that would say the Eighth Amendment
bars it.
We have proceeded on the felony murder doctrine on
Counts 1, 2, and 3, and I'd like -- if we just go back and talk
about what our position has been throughout the case. We
originally charged all 11 crimes as capital crimes. The
defense -- I think it was the McVeigh defense joined in by the
Nichols defense said that the murder crimes are duplicitous;
that is that, in effect, the counts 1, 2, and 3 are felony
murder crimes; that is a felony that resulted in death.
Therefore, they're felony murder and therefore, it's
duplicitous with the first-degree murder charges in Counts 4
through 11.
In that context, we said we will not be proceeding in
Counts 4 through 11 as felony murder counts. We are seeking to
prove premeditation. We could, under the statute, arguably
have said we don't have to prove premeditation on the murder
counts. All you have to find is that death resulted from his
commission of a felony, and we have consistently said -- and
the jury instructions that went back to the jury reflected
this -- that we did not ask the Court to instruct on felony
murder, which is a subset of first-degree murder. So the
jury's finding of first-degree murder was simply that there was
not a premeditated intent to kill, and we did not seek to go on
the alternative to the jury that even if you don't find that,
you can find the scienter necessary for first-degree murder if
you find that he engaged in a felony knowingly and willfully
and that death resulted as a result of that. So that is the
context in which we said this isn't a felony murder case.
I think it's certainly clear that Counts 1, 2, and 3
as applied to the death penalty are, in effect, felony murder
crimes. They are felonies where death resulted as a
foreseeable result of the crime. So I think for counsel now to
say we have changed our position is just not true. We have
said murder counts are not felony murder. We've always said
that, and that's the theory that the jury decided on; that they
were not presented with a choice of felony murder. But these,
in effect, are felony murder. And I think that is the context
in which Tison applies. If a defendant participated in a
felony and death resulted and the felony was committed with
wanton disregard for life such that he knew there was a grave
risk of death, then the death penalty may be imposed.
Now, there is an issue that's been raised -- and we
argued it earlier as well -- in terms of Tison -- in addition
to requiring the scienter requires that there be major
participation, and that is true as a matter of Eighth Amendment
law. It is not true under the statute. The jury does not have
to make that finding and the Supreme Court has held in several
cases -- Cabana vs. Bullock and other cases -- that this major-
participation finding, like the scienter finding, is not
constitutionally required to be decided by the jury. Most
recently, the Tenth Circuit in the Hatch vs. Oklahoma case said
that the state trial judge properly found major participation
even though it was not submitted to the jury. So that's not a
jury element. It's an element that this court, assuming there
is a death sentence, would have to determine as a matter of
Eighth Amendment law is the sentence proportional to the crime.
THE COURT: On a post-sentencing verdict motion? Is
that what you're saying?
MR. CONNELLY: That's correct. That's correct. I
think -- first of all, you have to apply the statute as written
unless the statute is unconstitutional, and it's not
unconstitutional for failing to require a jury finding on that.
That much is clear.
The only constitutional requirement is that some point
in the process -- and it can be done at trial level or
appellate level or anywhere else -- we would submit that
obviously, this court should make the finding in the first
instance, but in a post-verdict finding would have to satisfy
itself that the sentence of death, assuming one is returned by
the jury, is proportional to the crime; that is, Mr. Nichols'
acts; that the Court would find what acts they were in
connection with the conspiracy were sufficient that it is not
disproportionate to hold him responsible for his life when his
acts knowingly brought about the deaths of 168 people. That is
a judgment the Court would have to make as a matter of Eighth
Amendment law; but that is not a finding that any case suggests
the jury needs to find, and it's not a finding in the statute.
In fact, minor participation is a mitigating factor in the
statute, but the defendant bears the burden of proving; and
that, again, is constitutional.
I think McKoy, a Maryland case -- McKoy, a Supreme
Court case out of Maryland, held as much. It might have been
North Carolina. But in any event, that finding, the Supreme
Court has made clear in Cabana vs. Bullock, is one that need
only be made by a court at some point; and since it's not, as a
matter of statutory law, a matter the jury is asked to pass
upon, we submit it is premature at this point. But we submit
when it is appropriate to make it that the Court could amply
find that the death penalty is not disproportionate to the
crime of conviction.
THE COURT: Okay. Mr. Tigar, I'll give you the last
argument on the point.
DEFENDANT'S FURTHER ARGUMENT
MR. TIGAR: Your Honor, at the Government's
insistence, your Honor did not charge that any overt act was
required to be proved. So they didn't have to find any overt
acts for this conspiracy.
THE COURT: Right.
MR. TIGAR: And you also did not charge that any
intent to kill was required even under Count 1, conspiracy. So
now the Government interprets the conspiracy convictions as
necessarily implying (a) that overt acts were committed, which
is ridiculous, because the Court doesn't instruct on that and
(b) that intent to kill can be inferred. Counsel just said:
well, knowingly caused death.
They can't live with these involuntary manslaughter
verdicts, your Honor. That's the problem. And to ask this
jury to speculate now is an insult to the jury's deliberative
process that they went through to come to all of those not
guilty verdicts on first- and second-degree murder as well as,
of course, subjecting all of the parties here to something
that, given that it's unnecessary and forbidden by the statute,
would be unnecessarily cruel.
THE COURT: Well, do you have a response to the
suggestion made here that the constitutional question can be
resolved in the event of a death sentence by the Court making
findings post-verdict?
MR. TIGAR: Yes, your Honor. I have -- we've already
briefed that issue. And the first is that to say that we have
the burden of proving minor participation essentially --
THE COURT: No, I don't believe that was the point. I
believe that what is said here is that the fact-finding with
respect to the role, the major vs. minor participation, is
not -- does not have to be made by a jury.
MR. TIGAR: Your Honor, the Congress has chosen to
have jury sentencing.
The fact that in particular state systems, these
findings are made in different ways or that there is a
matter -- there is a way to repair the record doesn't answer
it. The Congress has said that minor participation is a
mitigator.
Now, we've attacked that on constitutional grounds;
and I respectfully submit that is relevant. If the jury -- if
the jurors find minor participation or if a substantial number
of them do, then -- and we got to that phase, then we
respectfully submit your Honor's hands would be tied; that is
to say that that would be a dispositive mitigator; that your
Honor couldn't go ahead and say well, now I'll look at the
evidence and make some sort of a decision. That would be
forbidden by the principles of Bullington vs. Missouri and the
other cases about looking at what the jury does.
THE COURT: Well, of course, we could anticipate that
such a jury finding would also result in a sentence other than
death.
MR. TIGAR: Well, and if it does, of course, that's
moot; right? But right now, what we're arguing about is what
can -- you know, is the Government fully accepting what the
jury did. And it's clear to us that they are not. All I have
to do is look at the transcript of the chambers conference
where your Honor decided to give lesser includeds. Then the
Government was telling the Court that it was ridiculous. I'm
not going to quote it. It's a chambers conference. That to do
this -- after all, it's only a six-year felony.
Well, the jury came in with it, and that's the reality
that the Government now wants to relitigate in the face of the
acquittals on Counts 2 and 3 as well as on 4 through 11 on the
top two parts.
RULING
THE COURT: Okay. Well, on the defendant's motion to
preclude a sentencing hearing that 3591 now (a)(2)(C) and (D)
could not be submitted to the jury here -- I'm denying the
motion.
MR. TIGAR: Your Honor, we have an alternative motion
to bifurcate.
THE COURT: Yes. And I haven't heard the Government
address that as yet.
Mr. Connelly, are you going to talk about that? I
mean, are you prepared to talk about it?
PLAINTIFF'S FURTHER ARGUMENT
MR. CONNELLY: Sure, your Honor.
We ask the Court to follow the statute that is written
by Congress and follow it the way it did in the McVeigh case

and follow it the way that every other court to have considered
it has done it. There are levels of findings that need to be
made, and the instructions very clearly inform the jury of
that. The first level is the intent element. After that, the
instructions inform the jury that they must find at least one
statutory aggravating factor; and from there, it tells them how
to consider non-statutory aggravators, how to consider
mitigating factors, and how to govern their deliberations.
The statute is clear. It's bifurcated in two
sections, not three. There is no basis, we submit, for
rewriting the law that Congress passed in this case and
applying it any differently than this court has already applied
it and that other courts have applied it in similar cases.
THE COURT: Well, Mr. Tigar, do you want to address
it? I just have trouble seeing that bifurcation is a practical
approach because I don't know how you separate out the -- what
we now call "information."
DEFENDANT'S FURTHER ARGUMENT
MR. TIGAR: Well, your Honor, the -- Judge Berrigan
had bifurcated in that case in Louisiana, the name of which
escapes me at the moment; so it's been done by a federal judge.
Let's look at the practicalities of it. Neither party
suggests that with respect to this so-called "gateway finding"
there is going to be evidence; right? That is to say, maybe
there will be an exhibit or two -- and we're going to argue
about that -- but neither party suggests that that really gets
into what the Government is about.
The Government's witness list, your Honor, is victim
impact evidence. That's what they're going to present. And
it's exactly like a situation, your Honor, in which there is a
real dispute about liability and there is very heart-wrenching
testimony on damages. The risk of an improper jury
determination given the dubiety of proceeding this way at all
is really significant here.
And to put the parties to the expense and difficulty
and emotional trauma and all of these witnesses and families to
the expense and difficulty and emotional trauma of 60 people
getting on this witness stand on one side and 60 people getting
on this witness stand on the other side and telling what
everybody knows, the disastrous effect that this had, when that
may be unnecessary if we simply ask these jurors, well, what do
you think about this -- and you can do it with an opening
statement, an exhibit or two, and a short closing argument; you
can do it in a day -- seems to us, your Honor, to be
irresponsible. I'm not -- I'm -- asking for a ruling that
irresponsible. I'm not trying to argue with the Court or
characterize the Court's actions at all.
It seems to us, your Honor, that to put folks through
that when it may very well turn out to be unnecessary and when
by doing this alternative procedure, we really do save time is
nothing more than the exercise of the discretion that the Court
customarily exercises with respect to the consideration of
questions in cases civil as well as criminal.
THE COURT: All right. Well, I've assumed here that
the Government is going to offer more than victim impact
testimony. Now, is that an incorrect assumption?
PLAINTIFF'S FURTHER ARGUMENT
MR. CONNELLY: Yes. We're going -- no, it is not an
incorrect assumption. We're going to offer --
THE COURT: Intent testimony.
MR. CONNELLY: -- testimony -- well, testimony that
shows the effects of the crime in terms of physical effects,
not just victim impact testimony; and obviously, the jury can
infer intent from the effects of the crime as well.
We have a couple of matters that we've asked to be
allowed to present, but it will be similar to the type of
sentencing case presented in the McVeigh case.

RULING
THE COURT: All right. I'm going to deny bifurcation.
Now, there are other issues --
MR. TIGAR: Yes, your Honor.
THE COURT: -- one of which relates to your argument
regarding the procedural approach of the Government.
DEFENDANT'S FURTHER ARGUMENT
MR. TIGAR: Yes, your Honor. We have the report of
the United States regarding sentencing allegations which fails
to comply with the statute. We're entitled to a notice, your
Honor. And the notice we're entitled to is one that can be
amended on leave of court. A report to the Court of a
unilateral decision by the United States is not a notice.
THE COURT: Well, is it -- isn't this the functional
equivalent of an amended notice of intention?
MR. TIGAR: If the Court wishes to so construe it,
then the Court could. It would be our submission that we're
entitled to certain procedural protections, such as review by
the Attorney General with respect to the notice. If the Court
rejects that, we are at the very least entitled to the courtesy
of a signature by the United States Attorney and not by some
special assistant.
The Court has already dealt with Roman Numeral I --
THE COURT: But there is no disadvantage to you here
by the treating this as an amendment, because it's a reduction,
an elimination of some of -- well, both the intent allegations,
statutory, and the aggravating factors. So it's a reduction in
the Government's approach.
MR. TIGAR: It is, your Honor. And it fails to comply
with the statute. If the Court -- if the Court decides to the
contrary, then I have a substantive objection to it as well.
THE COURT: Well, we'll deal with these things one at
a time.
The statute does contemplate that the notice be given
by the United States Attorney. The United States Attorney is
here. The United States Attorney for the Western District of
Oklahoma. This report is signed by Mr. Connelly.
Mr. Ryan, what is your -- do you take the position as
the United States Attorney for the Western District of Oklahoma
that Mr. Connelly's signed report constitutes an amended notice
of intention to seek the death penalty?
MR. RYAN: Yes, your Honor. I mean, I spoke to
Mr. Connelly about it. We worked on it in concert and it
certainly is -- expresses my views.
If the Court feels that it's necessary for me to send
a revised notice to Mr. Tigar, I will do so today.
THE COURT: Well, I'm -- you know, you're speaking
here in open court. You're speaking as the United States
Attorney from the relevant district. It is you who issued the
notice of intent to seek the death penalty in this case
originally.
MR. RYAN: Yes, your Honor.
THE COURT: And do you now in your official role
accept this report as an amendment to that notice?
MR. RYAN: Yes, your Honor.
THE COURT: Then I believe that complies with the
statute.
MR. TIGAR: Shall I turn to the substantive points?
THE COURT: Yes, please.
MR. TIGAR: Roman II, your Honor.
THE COURT: Yes.
MR. TIGAR: "The deaths or injuries occurred during
the commission of an offense . . . Transportation of
explosives in interstate commerce." Your Honor, the acquittal
on Count 2 bars that factor. There is simply no way that a
transportation of explosives in interstate commerce -- that is
to say, the exploded bomb -- can be consistent with the jury's
acquittal of use of the weapon of mass destruction; i.e., a
truck bomb in Count 2.
Also, it's inconsistent with the jury's acquittal on
Count 3; that is, you can't have -- you know, the bomb had to
get there somehow, and the indictment alleges it got there in a
truck. So the jury's finding is necessarily inconsistent with
844(d). And 844(d) is nothing more than another subsection of
the sub -- of the statutory section involved in Count 3.
Next: "Knowingly created a grave risk of death to one
or more persons in addition to the victims of the offense."
This is subject to the same objection; that is to say, the
acquittals on Count 4 through 11 preclude that element because
the defendant did not knowingly create a grave risk of death;
that is to say, he -- the most intent he had was that provided
by the involuntary manslaughter statute.
Third, the Government has -- you notice the ellipses,
your Honor, in (3)? What the Government has done is to state
a -- words written by the Congress that are in the conjunctive
and simply eliminate them. And so now that we know what the
Government has eliminated, let's turn to the statute.
"The defendant committed the offense after substantial
planning and premeditation to cause the death of a person or
commit an act of terrorism." Now, an act of terrorism is not
simply any act of -- that is to say, you know, some act of
protest protected by the First Amendment. An act of terrorism
is an act that presumably involves some harm to individuals.
That's what we understand by "terrorism." And the statute, if
you read this in pari materia, planning and premeditation to
cause the death of a person or commit an act of terrorism
involves this kind of substantial risk and premeditation, the
jury has expressly found did not exist.
So that elimination of that -- of that language omits
the fact that the statutory provision read as a whole deals
with acts that have to do with risk of -- to human life and
that there is premeditation.
Well, a jury has determined that there was no
premeditation; that the defendant did not premeditate.
And planning -- and "substantial planning and
premeditation" are in the conjunctive. The jury's verdict says
no premeditation.
Then (4): "The defendant committed the offense
against one or more federal law enforcement officers because of
their "status as federal law enforcement officers." Well,
that, your Honor, essentially relitigates. What it says is
that it's an aggravating circumstance that the defendant
committed involuntary manslaughter against law enforcement
officers. That is a constitutionally insufficient aggravating
circumstance, your Honor. And the offense against one or more
because of such victims' status -- that implicates the
acquittals that we -- the acquittals that we have spoken about
earlier.
When we get down to non-statutory aggravating
factors -- that's also Roman Numeral II, your Honor, so there
are two Roman Numeral IIs here -- "the offense committed
resulted in the deaths of 168 persons." That one, your Honor,
is permissible under the standards established by the Supreme
Court.
"In committing the offense caused serious physical and
emotional injury including maiming, disfigurement to numerous
individuals." Your Honor, we've already -- we've already
challenged that. Your Honor has rejected our challenge, and
your Honor has also rejected our challenge to the victim impact
evidence as a statutory and constitutional matter.
THE COURT: All right. Well, final ruling here will
await the conclusion of the Government's case in the penalty
phase, but I am -- I would like you to address No. 4 here on
page 2; that is, one or more federal law enforcement officers
because of the victims' status as federal law enforcement
officers. Now, I recognize that that is different from "while
they were performing their duties."
PLAINTIFF'S FURTHER ARGUMENT
MR. CONNELLY: I think the major difference we'd rely
on is the offense is different. The offense is the conspiracy
offense. That's the only capital offense left for this jury.
The jury, in 4 through 11, found that he did not premeditate
the murders of those law enforcement officers. But I think
it's certainly fair to say that he committed the offense of
conspiracy against those law enforcement officers, and we'd be
prepared to prove that it was because of their status as public
servants.
So I think we're not trying to relitigate that he
intentionally killed and premeditatedly killed those eight law
enforcement factors, but I think it's an aggravating factor,
since the offense is not the murders but the conspiracy. Was a
conspiracy committed against them as well as against the
building and the persons inside? In fact, they were the
persons inside; so I think, in a sense, the jury has already --
you know, may well have found this already: that the conspiracy
was committed against the Murrah Building and the persons
inside. Assuming they find that the federal public servants
were persons inside, this is not at all inconsistent with their
verdict.
The others, I have a similar response to. I point out
that Mr. --
RULING (RESERVED)
THE COURT: Well, I'm going to reserve ruling on
whether these aggravators go to the jury or not until the
evidence, information, is in; and then it's a question of how I
instruct the jury on it.
MR. CONNELLY: If I could -- do you want me to just
address the one that we've made a change on? Mr. Tigar said
that the --
THE COURT: Yes. The ellipses.
PLAINTIFF'S FURTHER ARGUMENT
MR. CONNELLY: Yes. Mr. Tigar interestingly said the
statute is written conjunctively; and then he read it, and he
went on to say "or." And in my lexicon, "or" is disjunctive.
We have simply charged conjunctively as you normally do, but
you can prove it disjunctively. That's a well accepted rule of
law, and we are not required to prove both the elements that
are written disjunctively. We can prove one or the other.
We've simply dropped one of them and are proceeding on the
other one, which by itself is sufficient under the statute to
establish that aggravating factor.
An act of terrorism, we don't have to guess what
Congress meant. It's defined in Section 3077 of Title 18; and
the Court instructed on that in the McVeigh case, and I think
this case fits well within that. So I think all of these are
valid on their face, and we can talk in terms, as the Court
said at the time of submitting them to the jury, you know, what
gets submitted. But I think all of them certainly are valid on
their face and are supported by evidence.
THE COURT: All right. I'm going to reserve ruling on
these factors.
Now, there are some other matters dealing with
evidence, and I'd like counsel to approach the bench on that
with respect to scheduling.
(At the bench:)
(Bench Conference 142B1 is not herein transcribed by court
order. It is transcribed as a separate sealed transcript.)

(In open court:)
THE COURT: I just was discussing with counsel the
timing with respect to my reviewing some of the exhibits and
discussing some of the evidence which is intended to be offered
and as to which there is an objection and because -- or there
are objections; and because, of course, these matters relate to
things that may never be in evidence, it is consistent with my
original sealing order, as it's sometimes called, to do that in
chambers. And that's what I intend to do, and I will be
meeting with Counsel later this morning to discuss the
evidentiary issues.
With that, then, as far as the open court proceedings,
we're going to recess until 8:45 Monday morning.
(Recess at 10:08 a.m.)
* * * * *

INDEX
Item Page
Arguments re Sentencing Hearing
Defendant's Argument

Plaintiff's Argument

Defendant's Rebuttal Argument

Plaintiff's Surrebuttal Argument

Defendant's Further Argument

Ruling

Plaintiff's Further Argument

Defendant's Further Argument

Plaintiff's Further Argument

Ruling

Defendant's Further Argument

Plaintiff's Further Argument

Ruling (Reserved)

Plaintiff's Further Argument

* * * * *
REPORTER'S CERTIFICATE
I certify that the foregoing is a correct transcript from
the record of proceedings in the above-entitled matter. Dated
at Denver, Colorado, this 24th day of December, 1997.

_______________________________
Paul Zuckerman

OKC Trial Main Page

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