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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 154)
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Proceedings before the HONORABLE RICHARD P. MATSCH,
Judge, United States District Court for the District of
Colorado, commencing at 8:45 a.m., on the 5th day of January,
1998, 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, and RANDAL SENGEL, Assistant U.S.
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 8:45 a.m.)
THE COURT: Be seated, please.
Good morning.
MR. MACKEY: May we approach?
THE COURT: Yes.
(At the bench:)
(Bench Conference 154B1 is not herein transcribed by court
order. It is transcribed as a separate sealed transcript.)

(In open court:)
(Jury in at 8:50 a.m.)
THE COURT: Members of the jury, good morning.
JURORS: Good morning.
THE COURT: As we indicated what our schedule would be
when we recessed on Friday, we are now going forward with the
closing arguments of counsel, after which I will instruct you
with respect to the law. And again, the burden of proof here,
generally speaking -- although I'll talk about the burden of
proof in the instructions -- being on the Government, we first
hear from Government's counsel, then defense counsel, and then
Government counsel in rebuttal, just as we did at the other
stage of the trial.
So at this time I will call on Miss Wilkinson.
CLOSING ARGUMENT
MS. WILKINSON: Thank you, your Honor.
Good morning, ladies and gentlemen.
JURORS: Good morning.
MS. WILKINSON: May it please the Court, counsel.
Well, it's almost over. You've been here for a very
long time. Some of you, in fact one of you, since
September 30, when we first began jury selection. You've
listened to a lot of evidence, and you've made some very
difficult decisions, and you found Mr. Terry Nichols guilty of
Count One of the conspiracy. You found him guilty of
participating in that conspiracy, and now you spent the last
week listening to some very difficult evidence in what we call
the penalty phase of this proceeding. I want to spend this
morning -- and I'm going to talk to you for about an hour this
morning -- talking about choices, choices that Terry Nichols
made and choices that you will have to make this week.
Terry Nichols made choices starting back in September
of 1994 when he was with Timothy McVeigh and Timothy McVeigh
asked him to join the conspiracy to bomb the Murrah Building
and the people inside of it. Everyone else said no to Timothy
McVeigh. Terry Nichols said yes. He made a choice that day.
He made a knowing and willing choice, and you found that he
made that choice to participate in the conspiracy.
He made that choice not only to make that agreement to
bomb that building and the people inside of it, but he made a
choice to assist Timothy McVeigh and to make their goal a
reality.
If Terry Nichols had said no to Timothy McVeigh, we
might never be here, we might have never been here. No one
else had said yes to Timothy McVeigh but Terry Nichols; and
because of that, because of the choices that Terry Nichols
made, there are 168 consequences to his choices. 168 dead
people in Oklahoma City within seconds of 9:02 a.m. It is
because of Terry Nichols' choices that those 168 people were
killed.
Your final decision that you will make when the
lawyers are finished talking and the Judge instructs you on the
law will be one that you make as the conscience of this
community. You must decide what the appropriate punishment is
for someone who knowingly and intentionally agreed to use a
weapon of mass destruction against the Murrah Building and the
people inside of it. You must decide what the appropriate
punishment is for someone who knew that the deaths were
foreseeable and for someone who participated in a crime where
168 deaths resulted. You must decide what should happen to
Terry Nichols.
Each and every one of you told us during jury
selection that you believe that the death penalty was an
appropriate punishment in certain circumstances. Now it is
time for you to set aside your emotions, be they sympathy,
compassion, or fear, and make a decision about Terry Nichols
based only on the facts.
When you do that, when you find that Terry Nichols had
the intent necessary, when you find that he knowingly created a
grave risk of harm, and when you find that the crime of
conspiracy resulted in the deaths of 168 innocent men, women,
and children, and you balance that against Terry Nichols' life,
you will see that a sentence of death is just and is a reasoned
response of the moral conscience of our community.
This decision is obviously a very important one and a
very difficult one, but you are not alone when you make it. A
sentencing decision such as this unfortunately does not come
with a formula that you can follow to determine a just result.
But there is a framework. There is a framework that the Judge
will describe to you when he gives you the law and a framework
that you will see in the special verdict form that you will be
given for your deliberations. There are specific steps that
you must follow before you ever get to the final decision of
determining whether Terry Nichols' sentence should be life or
death.
But you will get there. And when you get there, you
will have to make a final decision as the Judge has instructed
you previously. You must make a moral judgment about the worth
of a specific life balanced against the societal value of a
deserved punishment. That is your duty and your obligation as
jurors representing the conscience of our community.
But this decision that you make is not one that you
will make in a vacuum. The citizens of this country have
already spoken. The citizens that you represent as the
conscience of the community have already said that the death
penalty is appropriate in certain admitted circumstances, and
our community has already spoken about the potential penalties
for this specific crime. They have provided for the
possibility of a death sentence when someone knowingly and
intentionally conspires to use a weapon of mass destruction
where deaths resulted. That is what you found already in this
case.
Anyone who participates in a conspiracy to use a
weapon of mass destruction and against the people inside of it
faces the possibility of the death penalty. Therefore, it's
your obligation to consider all of the possible penalties with
an open mind. You took an oath at the beginning of this case
to have an open mind throughout the entire guilt phase and the
penalty phase, and that is still your obligation today.
You must carry out your duty in making the findings on
the special verdict form and weighing the sentence of life or
death consistent with that oath. It would be wrong for you to
eliminate any of the possible penalties based only on your
verdict.
The Court has repeatedly told you that you have
received the penalty-phase information because you found Terry
Nichols guilty of knowingly and voluntarily agreeing to use an
explosive bomb in a truck as a weapon of mass destruction
against a federal building and the people inside of it. You
were the ones that found that deaths were foreseeable and that
deaths resulted. That is the verdict that you rendered based
on the law as the Court instructed you. No one can question
that verdict, nor can any of you change it. And it is because
of those findings that we argue to you today that the death
penalty is a just punishment for Terry Nichols.
With your verdict of guilt beyond a reasonable doubt
for Count One, the conspiracy to use the weapon of mass
destruction against the Alfred P. Murrah Building and the
people inside of it, you had to make several findings. You had
to make several findings that were set forth for you in the
Court's instructions.
First, you found that Terry Nichols knowingly and
deliberately agreed to use a weapon of mass destruction against
the Alfred P. Murrah Building in Oklahoma City and the persons
inside of it. The Judge instructed you that you had to make
that finding beyond a reasonable doubt before you could convict
Terry Nichols of Count One, and you did that. Terry Nichols
knew what the agreement was. It was to bomb the Alfred P.
Murrah Building and the people inside of it. He and Timothy
McVeigh agreed to do that.
MR. TIGAR: Your Honor, I'm going to object to
mischaracterization of the Court's instructions.
THE COURT: Well, the jury will have the original
instructions.
You'll have the original instructions in front of you
in your deliberations.
So you may proceed.
MS. WILKINSON: Thank you.
Second, you found that Terry Nichols knew the purpose
or the goal of the agreement and that he deliberately entered
into that agreement intending in some way to accomplish the
goal. The Judge instructed you on that, and you had to make
that finding beyond a reasonable doubt before you could find
Terry Nichols guilty of Count One.
Third, you had to find that the crime substantially
affected interstate commerce.
If there is any question about the law that you had to
apply to find Terry Nichols guilty beyond a reasonable doubt,
as the Court said, you will have a copy of the instructions,
and you can refer to them at any time during your deliberations
in this phase.
You made two additional findings when you returned
your verdict. And you said, one, that the deaths in this case
were foreseeable; two, that the deaths in fact resulted from
the crime of conspiracy.
We know that the foreseeability of the deaths is
obvious from the agreement to bomb the building and the people
inside of it. We submit to you, ladies and gentlemen, no one
could not have contemplated the possible deaths of the people
inside the building when they agreed to use a weapon of mass
destruction. You found that Terry Nichols and Timothy McVeigh
agreed to use that weapon of mass destruction. It wasn't a
cherry bomb. It wasn't a bottle rocket. This was a
4,000-pound bomb of -- weapon of mass destruction. And it was
intended for use against the Murrah Building and the people
that worked there. That is the agreement that you found, and
Terry Nichols knew that deaths could result from that
agreement.
To carry out your duties during this phase, you must
also follow the law as the Judge instructs you. And he will
tell you and you will see from the special findings form that
you have to make a series of decisions that I have just
referred to. The findings are the framework that you must use
to make your decision. And because this framework is so
important, I want to spend my time reviewing with you the
evidence and the information that you've received that you
should consider when you follow his Honor's instructions.
First, you should know that you are permitted to
consider all of the information from the guilt phase. You can
consider that for the sentencing decisions. And you probably
have noticed during this past week that neither the defense nor
the Government presented evidence during the penalty phase on
all of the aggravating and mitigating factors that you will see
in your verdict form. Neither side has to. We don't have to
do that because you are permitted to consider the evidence that
you have already heard. So even though the defense did not
present any evidence in the penalty argument about Terry
Nichols' role in the offense, they can still argue that as a
mitigating factor. So, too, can we argue that the deaths or
injuries resulting in the deaths occurred from a crime of
transporting explosives over state lines, even though we did
not present any of that evidence during the penalty phase.
I say this just so you know there's no confusion --
all of the evidence that you've already considered in the guilt
phase, you can apply to your decisions in sentencing.
But before you all get to consider the aggravating and
the mitigating factors that you must balance and decide what
the just punishment is, there are findings that you must make
and findings that I want to review with you. You must make
findings about the intent, the intent of Terry Nichols. And in
this case, there are two different intent findings that you
must review.
The first -- and you can find either one or both --
the first is that Terry Nichols intentionally participated in
an act. You will hear from his Honor, I believe, that an act
is a conspiracy, and of course that makes sense because someone
makes an agreement and we punish someone for a conspiracy, so a
conspiracy is an act. And you know that Terry Nichols
intentionally participated in the conspiracy, so you can find
that Terry Nichols intentionally participated in an act.
The next requirement is that he did that contemplating
that the life of a person would be taken. You have already
found that the deaths were foreseeable. That is a sufficient
basis to find that Terry Nichols contemplated that the life of
a person would be taken. But you can also use your common
sense. You found that he knowingly and willingly agreed to use
that bomb against not only the building but the people inside
of it. What in the world did he think that bomb would do to
the people inside of the Murrah Building?
He knew that death was a possibility, and he didn't
care.
The second portion of that intent requirement, which
you can find, is that Terry Nichols intended that lethal force
would be used against a person and that the victims died as a
result. Again, you've already found that Terry Nichols agreed
to use a weapon of mass destruction. Your common sense tells
you that a weapon of mass destruction is lethal force. He knew
that would be used against a person because he agreed to use
that weapon of mass destruction against the Murrah Building and
the people inside of it. And you have already found that the
victims died as a result of that act, that act being the
conspiracy.
So you should have no difficulty, ladies and
gentlemen, finding the intent as described in the first intent
requirement, either as contemplating the life of a person would
be taken or that lethal force would be used against a person
and that someone would die as a result.
The second intent requirement or finding that you can
make is that Terry Nichols intentionally and specifically
engaged in an act of violence. Well, you know he intentionally
and specifically agreed to conspire with Timothy McVeigh. You
already made that finding. The question is: What is an act of
violence? The Court will give you instructions on this also
and tell you that an act of violence can be a conspiracy.
We ask you to find that a conspiracy to use a bomb
against a building and people is an act of violence. If that
is not a violent conspiracy, then what is? The only purpose of
Terry Nichols' conspiracy with Timothy McVeigh was to destroy
the Murrah Building and the people inside of it. That was what
they intended to do. That was why they agreed to work
together. Terry Nichols engaged in an act of violence on the
day that he and Timothy McVeigh agreed to bomb the Murrah
Building.
Once you find that, you must find that he knew that
the act -- that is, the conspiracy -- created a grave risk of
death to a person other than the person who is participating in
the event, or the offense, such that that constituted what we
call a reckless disregard for human life, and a victim died as
a result.
A grave risk of death. Did the conspiracy create a
grave risk of death? You know from all of the evidence that we
presented to you in the guilt phase and the penalty phase, and
from the evidence that Mr. Nichols presented, that he knew that
a mass -- a weapon of mass destruction used against the Murrah
Building could create a grave risk of death. He admitted to
the FBI that he knew how to build bombs. He admitted that he
knew what ammonium nitrate and fuel oil could do. And he had
agreed to use that weapon against the Alfred P. Murrah Building
and the people inside of it.
But if there was anything that showed you that he knew
the grave risk of death that would be created, it was his own
brother Les Nichols. He saw his own brother almost die as a
result of a fuel blast. Les Nichols suffered horribly and
almost died as a result of those blast injuries. Terry Nichols
was there by his side. He knew up close and personal the
horrors that one suffers as a result of a fuel explosion. A
bomb of ammonium nitrate and fuel of 4,000 pounds could only be
worse. You will recall the scars on Les Nichols' face, the
burns and the skin grafts that he had. Terry Nichols saw those
scars.
How can he tell Royia Sims who looked like this before
the blast and looked like this after that he had no idea that
placing a weapon of mass destruction in front of the Alfred P.
Murrah Building would make her go from this to this? He knew
the grave risk of death. Royia Sims almost died that day.
You heard from Melissa Webster that she literally
saved Royia Sims' life by putting her in the ambulance instead
of tagging her for dead as everyone else had instructed her to
do. Royia Sims suffered the grave risk of death.
Terry Nichols cannot say that he did not know that a
massive truck bomb used against the Alfred P. Murrah Building
would create a grave risk of harm and death for anyone in the
vicinity of that truck bomb.
You must also find that he did this with a reckless
disregard for human life. Well, I submit to you that knowing
what he knew about his own brother, knowing what he knew about
bombs, Terry Nichols' picture should be in the dictionary next
to the words "reckless disregard." He did not care about the
consequences of his choices. He did not care who lived and who
died.
And as you found, victims did die as a result of his
conspiracy. So when you go back and you review the special
verdict form, find Terry Nichols had the intent as set forth by
his Honor in each and every instance. The findings that you've
already made in this case make it easy for you to find that
Terry Nichols specifically engaged in a conspiracy -- violent
conspiracy; that he created the grave risk of death; and that
he had reckless disregard for human life.
Once you make those findings, your next step will be
to analyze what we call the statutory aggravating factors, and
those are the factors that the Government presents to you to
show you why Terry Nichols' sentence should be death. All of
those factors, we submit to you, have been proven beyond a
reasonable doubt. The first one is that death or injuries
resulting in death occurred during the commission of the
offense of transporting explosives in interstate commerce,
which really just means transporting explosives over state
line.
As we review the evidence for that, we must look back
at the guilt phase, evidence that was presented to you, but
looking back at it in light of the findings that you've already
made, in light of the verdict. You have already said that
Terry Nichols knowingly agreed to bomb the Alfred P. Murrah
Building and the people inside of it, so let's review what he
did in light of that.
He knew in the fall of 1994 what the goal of the
conspiracy was, and you found that he joined that conspiracy to
help accomplish the goal. So what did he do knowing that's
what he and Timothy McVeigh intended to do? He bought
4,000 pounds of ammonium nitrate. He stole explosives from the
quarry. He transported those explosives to Arizona. He
transported those explosives later back from Arizona to Kansas.
And finally, just three days before the bombing, he drove to
Oklahoma City to stash the getaway car with Timothy McVeigh.
Three days before the bombing, he was in the city in which he
knew was the target of the bombing.
Your findings show that Terry Nichols agreed to bomb

the Alfred P. Murrah Building, not just the federal building,
but the Alfred P. Murrah Building. So he was in that city
three days before the bombing, knowing exactly what Timothy
McVeigh intended to do.
When he left that getaway car there with Timothy
McVeigh and drove McVeigh back to Kansas, he was assisting
Timothy McVeigh in the most basic way in transporting those
explosives on April 19. Timothy McVeigh was able to drive that
Ryder truck from Kansas to Oklahoma City on April 19 because
his car, his getaway car, was left there. He was able to cross
state lines with 4,000 -- with a 4,000-pound truck bomb because
Terry Nichols helped him just three days before.
Now, the Judge will instruct you that you do not have
to find that Terry Nichols himself transported the explosives.
He could have done something to assist Timothy McVeigh, and
that is enough to find this aggravating factor beyond a
reasonable doubt. But you can also find that he transported
explosives in the fall of 1994 with the knowledge and intent
that they would be used unlawfully to damage or destroy any
building or property. Well, you know Terry Nichols did that
because you found that he knew what the goal of the conspiracy
was. The goal was to bomb the Alfred P. Murrah Building and
the people inside of it. So in the fall of 1994 when he
transported explosives for Terry Nichols -- for Timothy
McVeigh, he knew that those explosives would be used for an
unlawful purpose and for destroying a building.
So you can find either. You can find that Terry
Nichols, just days before the bombing, assisted Timothy McVeigh
with the transportation of the explosives by helping him stash
the getaway car, or you can find that he transported explosives
himself in the fall of 1994 in furtherance of the conspiracy.
The second statutory aggravating factor that you'll
have to look at is that in the commission of the conspiracy
offense, Terry Nichols knowingly created a grave risk of death
to one or more persons in addition to the actual victims; that
is, that people who weren't killed were faced with the grave
risk of death. You know that Terry Nichols didn't create this
grave risk of death by accident or mistake. He knew there was
a grave risk of death just by virtue of the size of the bomb.
He purchased 4,000 pounds of ammonium nitrate. He
assisted Timothy McVeigh in obtaining 1500 pounds of
nitromethane. Now, knowingly creating that grave risk of death
is not the same as intending the deaths of the individuals.
Terry Nichols doesn't need to intend to kill the victims to
create that grave risk of harm. Terry Nichols did create that
grave risk of harm when he participated in the conspiracy, and
that grave risk of harm actually occurred when Timothy McVeigh
detonated that bomb outside the Alfred P. Murrah Building at
9:02 a.m.
You heard from numerous survivors during this penalty
phase as well as Sue Mallonee from the Oklahoma Department of
Public Health who told you about the grave risk of death that
hundreds of people faced on the day of the explosion.
You heard the story of course of Royia Sims. But you
also heard from Dr. Andy Sullivan who told you about Daina
Bradley, the woman who was trapped in the rubble, about to die,
her leg crushed under thousands and thousands of pounds of
rubble. Dr. Sullivan himself was scared, afraid the building
would come down on both of them. They both faced the grave
risk of death that day. They faced it because of Terry's
indiscrim -- Terry Nichols' indiscriminate actions. He and
Timothy McVeigh didn't care how that building came down, but
they wanted to destroy the Alfred P. Murrah Building and the
people inside of it.
Luckily for Daina Bradley, Dr. Andrew Sullivan was a
hero that day. He stayed in that little hole, and he described
to you quite graphically, was able to amputate Miss Bradley's
leg and remove her from the building. She survived the grave
risk of death, but her family did not. She lost her two
children and her mother, and her sister suffered serious
injuries, all because Terry Nichols created the grave risk of
death when he agreed with Timothy McVeigh to bomb the Alfred P.
Murrah Building.
That aggravating factor, we submit to you, ladies and
gentlemen, was proven beyond any doubt.
The final statutory aggravating factor that you will
review when you deliberate together is that Terry Nichols
committed the conspiracy offense of a substantial planning and
premeditation to create an act of terrorism. Again, this one
is almost self-explanatory. Terry Nichols and Timothy McVeigh
agreed to bomb a federal building and to use a weapon of mass
destruction against the people inside of it. That is plain and
simple an act of terrorism, indiscriminate bombing and killing
against not only men and women of the federal government, but
against innocent civilians, children, and babies.
Terry Nichols participated in the substantial planning
and premeditation because he agreed almost seven months before
the bombing to assist Timothy McVeigh with their criminal
conspiracy. Terry Nichols back in the fall of 1994 plotted and
planned with Timothy McVeigh. He quit his job, he joined
forces with Mr. McVeigh and in a little less than five weeks
had bought or obtained all the components that they needed to
bomb the Murrah Building and the people inside of it.
But you know that Terry Nichols engaged in substantial
planning and premeditation during the conspiracy because of the
letter that he wrote on November 5 to his cohort in crime,
Timothy McVeigh. Terry Nichols was so concerned about the
planning and the plotting of this crime that he let -- he set
forth the circumstances for the continuation of that plot even
in the event of his own death. You can't get much more
planning and premeditation than that.
And when you hear the testimony of the mitigating
factors of Mr. Nichols, that he was a good father, that he
now -- that he, now that's he's in prison that he's been caught
for his crime, has written letters to his son Josh about the
three Rs, think about where he was on November 5, November 7,
and November 22, when he wrote those letters to Timothy McVeigh
and Lana Padilla. As Mr. Mackey pointed out to you in closing
rebuttal argument, there is no letter from Terry Nichols to his
son Joshua back then about the importance of doing his best and
about reading, writing, and arithmetic.
When Terry Nichols thought that he might never return
to the United States, he thought about only one thing. He
thought about Timothy McVeigh and their plot to bomb the Murrah
Building. And you have seen that letter -- and you can look at
it again if you like -- where Terry Nichols tells Timothy
McVeigh where the storage sheds are, where the stolen goods are
stored, and how he might keep those storage sheds until the
spring of 1995 when he knew Timothy McVeigh would detonate that
bomb in front of the Alfred P. Murrah Building.
That factor of premeditation and planning as to the
conspiracy, which is the only offense that you are considering
in this penalty phase, was proven beyond any doubt.
Once you analyze those three, as I said, statutory
factors, there are three additional non-statutory aggravating
factors that we present to you. And I suggest that these three
factors will not be disputed. The first one is that the
conspiracy offense in question was committed by Terry Nichols
and it resulted in the deaths of 168 people. There's no doubt
whatsoever that the conspiracy resulted in the deaths of 168
people. And that is the true horror of Terry Nichols' crime to
plot the bombing of the Murrah Building. His plot, his
criminal agreement, and his actions with Timothy McVeigh
resulted in the largest number of deaths from any crime in the
history of America.
Not only can you find that aggravating factor beyond
any possible doubt, we submit that you should weigh that very
heavily when you consider all of the aggravating and mitigating
factors you must analyze in determining Mr. Nichols' sentence.
Terry Nichols agreed to and participated in the plot to use the
weapon of mass destruction, and whether he intended that 168
people die is irrelevant to this factor. The point is he
participated in the offense, the deaths resulted.
You have already found in the guilt phase that deaths
resulted from the conspiracy. This is why we have the
possibility of a death sentence for a crime such as this one.
Terry Nichols conspired to do something that can only be
described as evil. He agreed to use a truck bomb against a
building and against people who had no idea; and he didn't
care, based on that agreement, whether those people lived or
died.
I ask you, isn't 168 incidents of reckless disregard
for another person's life enough? If Terry Nichols didn't know
that there was a day-care center in the building and he agreed
to bomb that building, he should have known. If he did not
care enough to find out who the targets were, should he somehow
be rewarded with his life? No. He didn't have to agree with
Timothy McVeigh to bomb the Alfred P. Murrah Building and the
people inside of it. Others said no to Timothy McVeigh. Terry
Nichols said yes.
In the end when you weigh these factors, ask
yourselves if as the conscience of the community you want to
tell Terry Nichols and others that his reckless disregard for
168 human lives somehow makes his participation in this crime
any less heinous.
Terry Nichols didn't care who his victims were, and he
did not take one step to ensure that the results of his
criminal conspiracy would not total 168 deaths and 500 wounded
and injured. He didn't care. The results of his acts are not
disputed. You found the 168 deaths resulted -- or you found
that deaths resulted from his conspiracy. His responsibility
is not diminished in any way, and you should find that this
factor weighs heavy on the scales of justice when you decide
what the just and reasoned and moral punishment is for a man
who commits this crime.
The second factor, the non-statutory aggravating
factor, you must weigh is that the committing of this
conspiracy offense, Terry Nichols caused serious physical and
emotional injury, including maiming, disfigurement, and
permanent disability, to numerous individuals. Again, Terry
Nichols' actions caused all of these injuries. And the key
word here is "caused." That word does not mean specific intent
to do so. It is just like the deaths that resulted from the
conspiracy.
The injuries of Sue Walton, who two-and-a-half years
ago -- who -- excuse me, who two-and-a-half years later still
wears that contraption on her leg that looks like a torture
device, the injuries suffered by Captain Randy Norfleet that
ended his career as a Marine pilot were the result of Terry
Nichols' agreement and actions to bomb the Murrah Building and
the people inside of it.
And the scars on Sergeant Titsworth's face and heart
that he will carry with him as he lives with the reality that
not only did he suffer serious injuries during his first day at
the Murrah Building, but that he lost his youngest daughter,
Kayla, four, even the emotional injuries to families, friends,
rescuers, and survivors described for you were caused by Terry
Nichols' choices and by Terry Nichols' actions.
Alice Dennison, who you may recall is the daughter of
Secret Service Agent Mickey Maroney, has a heart that is now
broken because of the loss of the one man she told you promised
would never break her heart.
The emotional injuries to people like John Youngblood,
Jr., and Megan Allen who lost their fathers and go on in life
without the guidance and love that only parents can give them,
those are the results of Terry Nichols' choices.
You heard information on this aggravating factor not
to generate any undue sadness or sympathy for the families and
the survivors but to give you the facts that resulted from
Terry Nichols' actions. As difficult as it was for you to hear
some of these stories, it's not the emotion that you must rely
on to make your decision.
But in some way, it is the facts of this case that are
the most tragic and long-lasting results of Terry Nichols'
conspiracy. The facts are that 168 people were killed. The
facts are that mothers and fathers were taken from their
children. The reality is sisters and brothers lost their
siblings in the blast. And the grim and unbelievable fact of
scores of parents who lost a total of 19 children from the age
of four months to five years in the bombing, that is not
emotion, unfortunately, that is not a nightmare. Those are
facts, facts you must consider when you determine if Terry
Nichols should be sentenced to life or death.
When you go back to deliberate and you put the emotion
aside, what you will be left with are all of those facts, all
of those facts that were presented to you, as we are permitted
to do, to prove those aggravating factors beyond any possible
doubt.
The final aggravating factor that we have proven to
you is that committing the conspiracy, Terry Nichols caused
several injuries and losses suffered by the victims' families.
This aggravating factor we commonly refer to as "victim impact"
is the final aggravating factor we ask you to consider. But
here again, there is no dispute that the conspiracy that Terry
Nichols participated in caused the severe injuries and losses
to the victims' families. You've already found that the deaths
were foreseeable and that the deaths resulted from this
conspiracy, so obviously the injuries also resulted from this
conspiracy.
But amazingly enough, after all you heard during the
three days of the Government's penalty-phase information, it
was just a glimpse into the pain and suffering these families
have experienced. At times I'm sure it was more than you
thought you could hear. Each story was sad and poignant in its
own way. But the fact is the losses these families suffered
are realities of this kind of horrible crime. There are so
many terrible effects of a crime to bomb a federal building and
the people inside of it. These are the consequences of Terry
Nichols' choices.
As one of you has said during jury selection, whoever
participated in this crime played judge, jury, and executioner
and had to know about the devastation it would cause.
MR. TIGAR: Objection, your Honor.
THE COURT: Yes, we'll strike that reference.
MS. WILKINSON: The devastation began -- or the actual
devastation began on April 19, 1995, but it continues today.
And it will be in the hearts of all Americans for many years to
come. The impact on the families, the community, and our
country cannot be underestimated.
A few of the stories you heard in the past few days
represent the impact of this crime on all of our citizens, the
youngest ones like Don Ferrell's granddaughter who says when
she plays with her dolls that they're going to Oklahoma City
and they'll be killed by a bomb, or Glen Westberry's
five-year-old son who asked his mother to run a red light so he
could die and go to heaven to be with his Paw Paw, older
children like Karla Wade who described the effect of the loss
of her father with so many eloquent words and also with the
sadness of feeling like a 40-year-old woman in a 23-year-old
body, parents like Constance Favourite who felt like the death
of her daughter, Lakesha Levy, happened twice, once when she
died in the bombing and the second time when she had to be
exhumed and buried again, and even grandparents like Carl Brown
who lost his daughter Dana and his grandson, Anthony Cooper,
and he also lost that day his will and desire to carve toys for
the only grandchild he had.
The impact on these people was quite personal, but
there's also been an impact on every mother or father who
thinks about sending their child to day care. It causes us to
look twice when we see an unattended Ryder truck outside a
building, and it makes us all wonder about the security of our
own citizens who were never before the victims of an act of
terrorism by our fellow Americans.
These are all the results of Terry Nichols' crime.
Sometimes it seems almost too hard to imagine and comprehend
the full extent of the damage, death, and destruction that
occurred. The three days of testimony gave you a glimpse. But
don't forget, it was only a glimpse of the suffering and loss
that resulted from Terry Nichols' actions. This was a crime so
grave, so far-reaching that we could not bring you every
victim, every survivor, and every family member that was
affected by this tragedy. You saw just a few, unfortunately,
who described for you in their own words the impact of this
crime on them, a legitimate factor for you to consider when you
determine Terry Nichols' sentence.
But please recall that this tragedy did not start on
April 19, 1995. It began when Terry Nichols said yes to
Timothy McVeigh. It began when Terry Nichols knowingly and
deliberately agreed to use the weapon of mass destruction
against the Murrah Building and the people inside of it. The
crime he agreed to commit happened. The consequences of that
crime are before you, and you must analyze the facts that
resulted when you weigh them against the mitigating factors
that the defense has presented to you.
You will see when you look at the special verdict form
that the defense has presented 14 mitigating factors for you to
consider, but these mitigating factors are different from
aggravating factors. Unlike the aggravating factors, you and
your fellow jurors do not have to agree that the defendant
proved each factor. The standard is that the defense has the
burden of proof to show by a preponderance of the evidence that
the mitigating factors have been proven. And some of these
factors we do not dispute. Terry Nichols has no criminal
record, and all 12 of you should so find. But there is a
serious dispute about some of the factors, and I wanted to
spend a few minutes addressing some of those factors that we do
not think Terry Nichols has proved.
The Judge will tell you that the burden is on the
defendant to proof by a preponderance of the evidence each of
the mitigating factors has been established. Some of you may
agree. Some of you may disagree. The special findings form
allows you to record the number of jurors that agree that that
factor was found. Of course that does not mean that every
mitigating factor has to be given any particular weight. One
of you may believe one factor was proven but may decide that it
doesn't carry much weight when you balance those factors
against the aggravating ones.
No one in this courtroom will ever tell you that you
must weigh the factors evenly, and that is the difficult part
about your decision. You all must decide together and
individually the weight you will give those factors and then
how you weigh one factor against another.
For example, if you find that Terry Nichols had no
criminal record, that doesn't mean it has to be a significant
factor in your weighing process. You all will decide what
weight to give each factor that is proven. But I want to
discuss the factors we believe have not been proven and that
none of you should find.
The first is that Terry Nichols' participation in the
conspiracy was relatively minor. The question is: Did the
defense prove by a preponderance of the evidence that Terry
Nichols' participation in the conspiracy, not the other crimes,
but in the conspiracy, was relatively minor?
We submit to you that Terry Nichols was a major
participant in the conspiracy. That is the relevant offense
here. Not Counts Two or Three, but the participation in the
conspiracy. You have already found that he agreed with Timothy
McVeigh, and now you must look at what he did knowing that he
made that agreement.
He agreed almost seven months before to bomb the
Alfred P. Murrah Building and the people inside of it. He
bought 4,000 pounds of ammonium nitrate almost six months
before. He stole explosives around that time and assisted with
the purchase of 1500 pounds of nitromethane. He wrote the
letter five months before. He robbed Roger Moore and kept
stolen property in his house. But perhaps most importantly, he
knew about the plan for months and months. He had plenty of
time to change his mind. And he didn't.
Indeed, three days before the bombing, he went to
Oklahoma City, the target of their conspiracy; and that
evening, as he told the FBI, he drove by the Alfred P. Murrah
Building several times. He could have changed his mind at that
moment. He could see that glass wall facing 5th Street as he
drove by the Alfred P. Murrah Building. He knew the grave risk
of death it would create to put a truck bomb in front of that
building, glass shards going everywhere, concrete tumbling down
on the people inside of it. He saw that, knowing the agreement
they had three days before the bombing; and he did nothing.
In fact, he did everything to cover his tracks. You
know -- and it's not been disputed because Marife Nichols told
you -- he lied to his own family about where he was going.
That shows you he knew what he was doing was wrong. He didn't
forget that he and Timothy McVeigh had agreed to bomb the
Murrah Building in April of 1995. He knew that was the target
of destruction. And so he didn't want his wife to have any
idea that he had been in that city in the days before the
bombing. So he lied to his wife that he now tells you he's
such a loving husband to. And he lied to his son Josh and told
him that even though it was the day before Josh was leaving to
go home, he couldn't ride with him to Omaha because he didn't
know if there would be enough room and what kind of trouble
Timothy McVeigh was in.
His state of mind based on your findings is clear that
day. He knew that he was going to help Timothy McVeigh leave
the getaway car in Oklahoma City, and he didn't care. But even
up to 24 hours before the bombing, he helped Timothy McVeigh.
We proved to you that Terry Nichols built the bomb at
Geary Lake with Timothy McVeigh and that he lied about his
whereabouts that morning on April 18. Terry Nichols told the
FBI that he loaned Timothy McVeigh his car. At this point, it
doesn't matter which one you believe. Either way, based on
your finding that he knew the goal of the conspiracy, he was
assisting Timothy McVeigh with the plot. He knew that Timothy
McVeigh was going to bomb the Alfred P. Murrah Building, and it
didn't matter if he knew when or at what time. He knew that
was a goal; and on April 18, he built the bomb, or according to
Mr. Nichols, loaned his truck to Timothy McVeigh.
The months of the agreement, the actions that he took,
and all of the waiting show you that Terry Nichols was a
substantial player in this conspiracy. Terry Nichols did many
things throughout the fall and spring of 1995. Do not say in
your verdict that Terry Nichols had a relatively minor role in
this conspiracy.
The second mitigating factor that we dispute is that
another defendant or defendant that's equally culpable in this
crime will not be punished by death. You know that's not true
for Timothy McVeigh. And the only other individual who you
know about this crime -- or who knew about this crime was
Michael Fortier. He said no to Timothy McVeigh, and Timothy
McVeigh left Arizona. Terry Nichols said yes, and Timothy
McVeigh stayed in Kansas in the fall of 1994 and stored all of
the bomb components near Terry Nichols until the day before the
bombing. Michael Fortier is not equally culpable to Terry
Nichols.
But don't get me wrong. Michael Fortier did an
unforgivable thing. When he failed to report the bombing
before it occurred, he did something that no one should ever
do. But that is not the crime that we are here to discuss. We
are here to discuss the conspiracy, the agreement, and the
actions to plot the bombing of the Murrah Building.
What Terry Nichols did that Michael Fortier did not do
was agree to bomb the building and the people inside of it and
then take action to participate in that conspiracy. The
defense has not met its burden of proving that anyone was
equally culpable of the crime, not Michael Fortier and
certainly not any of the John Doe 2 suspects.
First, you should not find that any other suspect has
been proven because there is no evidence as to the actual
identity of any John Doe 2 sighting. That would be pure
speculation on your part and inappropriate. And there has been
no evidence that if this John Doe 2 were ever identified that
he would not get the death penalty, so it would be wrong for
you to find that someone who was equally culpable for this
crime was not going to receive the death penalty.
The final factor or mitigating factor that I want to
discuss with you this morning is the one that says Terry
Nichols was under unusual and substantial duress. There is no
basis for that finding. The crime we are discussing here is
conspiracy. No one forced Terry Nichols to agree to bomb the
building and the people inside of it; and in the fall of 1994,
Terry Nichols wasn't under any duress. Terry Nichols had a
good job. He had a wife and a family. He chose, he made the
choice, to quit his job, send his family away, and conspire
with Timothy McVeigh. That is not duress. Where is the
evidence that Terry Nichols was under this supposed unusual and
substantial duress? Not just duress, but unusual and
substantial duress. No one held a gun to his head and said:
Agree to bomb the building, or we'll kill you. He agreed in
the fall on his own. You found that he knowingly and
deliberately entered that conspiracy. That defies a finding of
duress.
He also spent the fall and the spring participating in
that conspiracy. Do not tell the community that you represent
that Terry Nichols was forced to commit the crime of conspiracy
to bomb the Murrah Building and the people inside of it. No
one could have forced Terry Nichols to agree to that plan.
Terry Nichols could have done what everyone else did
when Tim McVeigh discussed taking action against the
government. They said no. Terry Nichols said yes. And if
there was any evidence that Terry Nichols was under unusual and
substantial duress, he had every opportunity to do two things:
He could have called the police and reported the crime. He
could have told the police where Timothy McVeigh was, where the
bomb components were, and he could have stopped this crime from
ever happening. And that would have ended any supposed duress
that he was under.
But he got a second opportunity. On April 21, he knew
that Timothy McVeigh was in custody. He spoke to the FBI for
nine-and-a-half hours, and he didn't mention one word about
unusual or substantial duress. He didn't say that he was
forced to do anything. In fact, he lied about what he did, and
he lied about Timothy McVeigh. He said he trusted Timothy
McVeigh to live up to his agreements. If there had been any
duress, any force used on Terry Nichols to agree to bomb the
Murrah Building and the people inside of it, he could have
reported it when he knew Timothy McVeigh was safely in federal
custody, and he did not.
How can you permit a defendant who had every
opportunity to tell the police that he was forced to commit
this crime to now claim, two-and-a-half years later, that he
was under unusual and substantial duress? You know what those
words mean. They mean exactly what you think they mean. There
was no evidence that Timothy McVeigh held a gun to Terry
Nichols' head for seven months. Terry Nichols had opportunity
after opportunity to get out of the conspiracy and report the
crime to the authorities.
He never did it because he wasn't under any duress,
either usual or unusual, substantial or insubstantial. Terry
Nichols, as you found, knowingly and deliberately entered this
conspiracy.
Now, many of the other factors that are set forth by
the defense are debatable, but I will leave those up to you.
You all can decide among yourselves who believes those findings
or those factors were proven and who does not. But just
remember: As you review what kind of father, husband, and son
Terry Nichols was that he deceived everyone around him about
his plan to bomb the Murrah Building and his activities with
Timothy McVeigh.
Once you go through the process of determining what
factors have been proven, then you must sit down and do the
most difficult task. You must weigh those factors. Some of
you may disagree on the mitigating factors, but what matters is
how you weigh those factors and how you determine a just, moral
sentence for Terry Nichols.
You were chosen as a body of 12 to make this decision.
Each and every one of you must make a moral judgment. But you
are not alone responsible for the decision. Our citizens have
decided that 12 people are to the make this decision, not one.
As one unanimous body, you must decide if a punishment of life
or death is warranted for Terry Nichols' crimes and for his
life. That is the simple but difficult question you will
confront. Confront it together, and remember that you speak as
the conscience of the community.
As such, you have the responsibility, the important
responsibility, to tell Terry Nichols and the citizens of this
country what a just sentence is. You must make that moral
judgment about the worth of Terry Nichols' life, balanced
against the societal value of the deserved punishment for this
crime. And your reasoned judgment must not be arbitrary. You
all know that this crime was heinous. You all know that this
was a crime against the American citizens, and you all know
that the impact of this crime was felt in every corner of our
country.
With that in mind, you must look at Terry Nichols, you
must look at his life and the actions that he took. We know
that what we're asking you to do is very difficult. But your
emotion, your sadness, your sympathy, or your preconceived
notions should not affect your moral, reasoned judgment.
Terry Nichols said yes. He made a choice, a knowing,
informed choice. He chose with Timothy McVeigh to bomb the
Alfred P. Murrah Building with a weapon of mass destruction and
use it against the people inside. The consequences of his
choices and his actions are 168 dead people and hundreds and
thousands of injured. That is the crime that Terry Nichols is

guilty of. When you look at that crime and you look at Terry
Nichols, you will see that the just sentence, the sentence
based on a moral, reasoned decision, is death.
THE COURT: Members of the jury, we're going to take
the recess before hearing from defense counsel. It is a little
earlier than our normal time but a more appropriate time to
break in. I don't want to interrupt counsel. And we'll be
taking our recess for the usual 20-minute period.
But before you go, I just want to explain something
with respect to an objection made and sustained by me and the
requirement that you disregard the statement, which was when
Ms. Wilkinson made a reference to what she remembers one of you
may have said in the course of the jury selection. And, of
course, we ask each one of you separately and individually a
lot of things about what you thought with respect to penalty
and sentencing. And I just want to explain that I sustained
that objection and you must disregard. It isn't what you said
you thought before you came in here. That was a part of the
jury selection process. But what is the -- what are the
important words for each of you on the jury is what you said in
the oath and agreeing in the oath not to go according to what
you think the law ought to be but what it is, as I explained it
to you and as I will explain it to you in more detail at the
conclusion of the arguments.
So I simply want to make it clear the basis for the
objection and my sustaining it. No one of you in any way is
held to what you said when we were asking you about your
attitudes and experiences and beliefs excepting with your
understanding and agreement that you will follow the law and
decide the case, decide this sentence issue, according to the
evidence and the law as I will give it to you, which, of
course, will happen after the completion of the arguments. As
I said earlier, there will be defense counsel's arguments, and
the Government has a rebuttal opportunity; and then I'll
instruct you.
And, of course, as you well know, during the time of
this recess, you must continue to have open minds. It isn't
until you've heard it all that even in your own minds you
should address the questions put to you and of course not
discuss the case with other jurors or anyone else and continue
to avoid things outside the evidence.
So we're going to excuse you now for 20 minutes.
You're excused.
(Jury out at 9:52 a.m.)
THE COURT: All right. We'll be in recess. 20
minutes.
(Recess at 9:53 a.m.)
(Reconvened at 10:11 a.m.)
THE COURT: Please be seated.
(Jury in at 10:11 a.m.)
THE COURT: All right. Members of the jury, we're
ready to hear from defense counsel.
Mr. Tigar . . .
MR. TIGAR: May it please the Court . . .
THE COURT: Counsel.
CLOSING ARGUMENT
MR. TIGAR: . . . Counsel, Mr. Nichols, members of the
jury, just shy of two weeks ago -- it was in the afternoon --
you came in and you rendered a verdict in this case. And since
that time, it would come as no surprise to you to know that
pundits and hired lawyers and TV-talk-show hosts and lawyers
and everybody has tried to figure it out. But the Judge is
going to tell you in a few minutes when we're all done that all
of that figuring and all of that posturing and all of that
parading can't change a fact and it can't change the law. The
verdict that you rendered is your verdict. It is final. It is
binding on everybody in this courtroom, including the jurors
who reached it.
And I am not going to spend any time at all trying to
tell you what you decided. I think that would be arrogance for
me to tell you what you decided. Rather, I'm going to talk
about the things that the Judge will when we're all done here
tell you that are yet to be decided, keeping in mind that there
is no going back on what's been done.
I won't take long. When we're done here, this time
that we've spent together, which has represented an enormous
sacrifice, I know, for all of you, will be done and you'll go
back to your jobs and back to the community. We'll all go back
to our jobs, the prosecutors to other cases, me back to
teaching school, Mr. Nichols to a prison, which is the result
of the verdict that you already reached, not a pretrial
detention facility but a prison. And one of the things we're
here to decide today is whether or not in addition to that,
beyond that, over and above that, 12 of you should sign a piece
of paper that authorizes a sentence of death to be carried out
with respect to Mr. Nichols; that authorizes somebody to come
get him one day and carry out a sentence that he be put to
death.
What you won't see when you go back, by the way, is
any of us on this side joining the parade of talk-show hosts
and as-told-to books. I think those things are a disgrace to a
profession that tolerates them, and I think they are a disgrace
to lawyers who do that.
So when I'm done, the prosecutors will get a chance to
rebut. We won't have any chance to respond to that. But let
me talk about this process.
Your verdict was that Mr. Nichols was guilty of the
crime of conspiracy to carry out -- use a weapon of mass
destruction; that he was not guilty of use of the weapon of
mass destruction; that he was not guilty on Count Three, and
then with respect to those eight counts, an acquittal on the
first-degree and second-degree murder charges and a conviction
on the involuntary manslaughter.
Now, the Judge gave instructions at that time. And as
I say, I can't describe for you what it is that you decided,
and I don't think it's right for anybody to try to tell you
what it is that you decided. The Judge did permit you to
convict Mr. Nichols of the crime of conspiracy even if he did
not know all the details of the agreement or understanding or
even if he played only a minor role so long as he understood
the unlawful nature of the plan and voluntarily and
intentionally participated in it.
I ask you when you look at the effect of what you
decided on what you're going to do now to look back at the
instructions that the Court gave you at that time because it
was clear to us, although we might be wrong, that you had read
those instructions with extraordinary care and discussed
amongst yourselves what those words meant as you were making a
decision.
Well, as you discussed what the words meant and then
applied them in your decision, that's the decision you made.
So you'll have them again so that you can go back and refresh
your mind about what it is that was involved in the things that
you did and what was involved in the things that you didn't do.
And if you do that, I suggest that you will avoid an
error such as the one made no doubt unintentionally by the
prosecutor in summing up: The crime he agreed to commit
happened. Well, the happening of it, I had always thought, was
Count Two and the agreeing part was Count One. But that, as I
say, will be before you to decide.
Now, why does the Government want you to reach a
verdict of death in this case? Well, they say it is to
vindicate some vision of the law. They say it is because of
certain facts that they have shown to you.
Let me talk, if I might, about the facts and the law.
The process that you'll get into when you go back into
the jury room to deliberate is in three stages. The first
stage, as Counsel said, requires you to look at two findings.
And unless you are unanimous beyond a reasonable doubt as to
these, the process is over -- if you answer no; that is, there
is a reasonable doubt. You come back and the Judge sentences
on Counts One as he will on Counts Four through Eleven in
accordance with the law.
The first of these is "The defendant intentionally
participated in an act contemplating that the life of a person
or lives of persons would be taken or intending that lethal
force would be used against a person."

There was no requirement in your Count One finding
that you find intent to kill, and therefore as you consider
this, this first issue, you have the freedom given to you by
what you understand to be your verdict and by what the law is
as the Judge instructed you.
The Government has spent a great deal of time this
morning going back over the evidence in the earlier phase of
the trial. Well, I'm not going to go back over it with them,
but I heard an extraordinary thing. I heard that Government
urging you to find beyond a reasonable doubt that this happened
based on the assertion which was repeated here that Mr. Nichols
helped Mr. McVeigh build a bomb at Geary Lake on April 18,
1995. That assertion, I suggest, is like the 13th stroke of a
grandfather clock in the night: It casts doubt not only on
itself but upon everything you heard up to that point, because
the evidence was initially from Mr. Wahl -- and you'll recall
this and you'll have the chance to talk it over -- that there
was a blue or a brown pickup out there; that it was parked next
to a Ryder truck, and that was -- and Mr. Wahl had plenty of
opportunity to observe. And then all of a sudden, that theory
of the case that that -- those two trucks had been parked
together to build a bomb came crashing down around the
prosecutors' ears when it turned out that the description of
the headlights didn't match the kind of a truck that
Mr. Nichols had; that in fact you couldn't see the white line
of any kind of a camper top on the truck that Mr. Nichols had,
and most dramatically of all that for two-and-a-half years the
FBI hid from everybody the fact that when Mr. Wahl first
described the episode, he said the truck was gray.
I don't want to rehash what we argued about in the
guilt phase, but I respectfully suggest to you that this takes
you back to that evidence from the prior phase.
Then the Government spent some time in talking about
these issues, telling you about Oklahoma City. Well, most of
that evidence did come in in the trial of the earlier phase.
But you remember at this phase Mr. Norfleet, Randy Norfleet,
the Marine. He had been to a prayer breakfast at the Myriad
Convention Center near the federal building. He has a 1992
black Ranger pickup truck, a picture of which you saw; and he
was in a hurry to get to the office and so he parked in front
of the Murrah Building shortly before 9:00 and took the
elevator up. And he said he was amazed to find a parking place
in front of the Murrah Building at that hour of the morning.
Well, here we are again: How did the Ryder truck that
Timothy McVeigh was driving get a place to pull in that wasn't
already occupied in front of the Murrah Building at 9:00 in the
morning? Well, two witnesses told you that they saw somebody
with that Mercury before and shortly after the event so that
somebody could go in there and reserve or help to make sure
that that parking place would be available.
I'm not going to give my earlier summation again. You
know what you found, you know what the evidence is.
Well, then the second one: "The defendant
intentionally and specifically engaged in an act of violence."
The Judge will tell that you a conspiracy can be an act of
violence but it need not be. That's for you to decide whether
you think that's satisfied and beyond a reasonable doubt. That
lies within your discretion.
"Knowing that the act created a grave risk of death
such that participation constituted a reckless disregard for
human life." And there again, you'll go back to the verdicts
that you've already reached with respect to resulting death in
Counts Four through Eleven and you'll look at the evidence in
this case and you'll make a decision.
And, members of the jury, let me be clear again about
this: That at that point, if you -- unless you're satisfied
beyond a reasonable doubt that the Government has met that
burden, the process of deliberation is finished and the Judge
is the one that sentenced -- who does the sentencing.
Now, we did not hear in oral argument here -- maybe
we'll hear it on rebuttal -- but, you know, you heard 55
witnesses, and the Judge repeatedly cautioned you about those
things. And the only one that you heard that had anything to
do with Mr. Nichols' intent was Mr. Dilly, William Dilly, who
had been with him in the Army. And you remember Mr. Dilly. He
came and said, well, everybody looked up to Terry Nichols,
including Timothy McVeigh, although that was proof that somehow
that Terry Nichols must have controlled Timothy McVeigh and not
the other way around.
Well, cross-examination quickly revealed that
Mr. Nichols was only in the Army for a year; that after he got
out of the Army, Mr. McVeigh accelerated through the ranks and
became a leader in his own right; that he had a storage shed in
Junction City; that he bought manuals connected with bombs, and
that one of his buddies was Joel Johnson, who had been
dishonorably discharged and was also interested in bombs --
facts, by the way, that emerged only when we had produced for
us Mr. Dilly's first call to the FBI, not some later interview
that was done.
I do think it's important in considering these first
two things that evidence that you saw that -- that you didn't
see in the first part of the case could be considered; that is
to say, when you saw Mr. Nichols and heard about his relation
with his family, you might think it unlikely that he would form
such an intention, and you could consider that.
I want also to emphasize a distinction that the
prosecutors made. Lana Padilla was asked when she was here:
Isn't it a fact that Terry Nichols and his son Josh built
explosive things together? Yeah, they built pop bottle things,
is what that turned out to be, to use on the farm during the
time that they were together. To attribute that or to make
that equivalent to some plan to blow up a building, we suggest,
loses all sense of proportion.
If there had been any more to it than that, believe
me, with 30,000 interviews and thousands of agents to conduct
them, you would have heard about it. And the burden is theirs,
not ours. The burden is theirs and it's beyond a reasonable
doubt.
Think, then, back to the witnesses. Passing reference
was paid in the prosecutor's summation to the evidence that we
put on: Who was with Timothy McVeigh and Eldon Elliott and
Vicki Beemer at the Ryder rental place? Who was with Timothy
McVeigh since that wasn't Terry Nichols' truck? What about
Mr. Farley and what he saw on the evening of the 18th, all
those people and the ammonium nitrate fertilizer? What about
the scientists with the flooded laboratory? What about the
fingerprint man who couldn't count fingerprints? And I'll come
to Michael Fortier in a little while.
So we respectfully suggest -- and I won't labor it --
that the answers to the first two questions are that there is a
reasonable doubt and that the Judge should sentence on Count
One.
Then if you did get past that and say yes, you come to
Part 2; and if they don't make it past Part 2, once again it
goes back to the Judge.
What's this first aggravator? What's the first one
they want you to find beyond a reasonable doubt? During the
commission of an offense under 18 U.S.C. Section 844(d),
transportation of explosives in interstate commerce for certain
purposes. And the Judge will give you detailed instructions
about what that means, the intent with which one must act.
That's an aggravating circumstance that the Government must
either prove Mr. Nichols did directly or that he aided and
abetted. The definition of "aiding and abetting" is the same
one that you had in Counts Two and Three and Eight and Four,
Five, Six, on through Eleven in the first part of your
deliberations. So it's exactly the same definition.
What is the transportation of explosives that is
alleged here? Well, is it from Kansas to Arizona? Oh, yes,
says the Government. That's Kansas to Arizona. And what is
the evidence of that? Why, Michael Fortier, of course.
Or it's from Arizona back to Kansas? And what is the
evidence of that? Michael Fortier, of course -- but
contradicted by the phone records because the Government's
theory was that Mr. Nichols came, got a key from Michael
Fortier, got the explosives, and met Tim McVeigh somewhere.
And the timing Michael Fortier described was absolutely
contradicted by the phone records that show that Mr. Nichols
had, at the time Mr. Fortier said he was handing him a key,
been calling from Las Vegas, Nevada, which is 90 miles away.
The other evidence: transportation of nitromethane.
You heard the evidence, and I'm not going to tell you what to
think about it. That was, as I said in opening statement, the
man who didn't recognize a pickup truck and said that he sold
nitromethane to someone who looked like a possum.
With respect to the events shortly before April 19 --
that is, the three days -- again, you're going to have to
consider the relationship between that and the findings you've
already made with respect to Counts Two and Three.
Let's look at Michael Fortier for a minute, because
it's going to be relevant to some of the things we're talking
about here. Did Michael Fortier say no? The Judge instructed
you that one can become a member of the conspiracy without any
formal kind of agreement or a handshake. Michael Fortier
stored explosives, discussed the use of explosives, helped find
a storage shed, had explosives, wrapped up explosives in
Christmas paper, went to Oklahoma City, cased the building,
helped make a false ID, transported stolen weapons, committed
theft, had plastic barrels -- I mean, you remember that even on
redirect examination Government counsel said, "Well, you didn't
have any plastic barrels, did you?"
"I had three of them, three 55-gallon ones I had for
my trash."
We're not here to judge Michael Fortier. Michael
Fortier will be sentenced to a term of imprisonment by a
federal judge, not Judge Matsch, not a judge in Oklahoma, for
the things that the Government asked him and required him to
plead guilty to. That's what's going to happen to him.
But for the Government to come in here and suggest
that beyond a reasonable doubt you should find that Mr. Nichols
committed some other crime or aided and abetted it based on the
testimony of Michael Fortier is subject, we suggest, to all of
the objections that we made the last time that I stood before
you and made a closing argument.
Then the second: "The defendant in the commission of
the offense knowingly created a grave risk of death"; that is
to say that this defendant specifically knowingly wanted --
knowingly created this grave risk of death to others. It isn't
simply the risk of death was created -- and let me stop here
and say again what I've said, I think, since the first time I
stood here: We know what happened in Oklahoma City. We know
the devastation that it caused. We were always and have always
been prepared to acknowledge that fact to you. There isn't any
question about that. And if you happened to look over at us
while we were watching this evidence and think that maybe our
reactions weren't what you would have expected, we've seen all
the tapes. We've seen all the photographs. We've read all the
victims' interviews. For two-and-a-half years, we have dealt
on a daily basis with that reality and understood it.
That is not the issue. Anytime you get to an issue in
this case that requires you to find that there was devastation,
that there was harm, that there was injury, I don't think the
evidence permits you to hesitate. But that is not the finding
you're being asked to make here. You're being asked to make a
finding about Mr. Nichols' relationship to that harm that we
all concede existed.
And then the third: "The defendant committed the
offense after substantial planning and premeditation to cause
the death." The word "premeditation" has been before you
before. You have confronted it in your verdict on Counts Four
through Eleven.
I'm not going to suggest to you that there is any
particular result that is required by your verdict. You know
what you decided, and I'm not going to insult you by telling
you what you decided. But the Government is asking you to find
that beyond a reasonable doubt, and we say to you that there is
at least a reasonable doubt as to that.
And so if you do not answer yes unanimously to these
three, once again, the matter comes back to Judge Matsch, who
sentences Mr. Nichols along with his sentence on Counts Four
through Eleven in accordance with the law.
Well, then we get to Part 3. Suppose that you did
answer yes beyond a reasonable doubt to the questions on 1.
Suppose that you did answer the questions yes beyond a
reasonable doubt on Part 2, all three of them -- or any of the
three, rather, and you got to this third decision, the weighing
process.
Well, Judge Matsch will tell you that although we
sometimes call it weighing, that's probably a mistake, because
as I said in opening statement, you will be asked to make some
decisions and then to reach inside yourselves to go to a place
that you have never been, perhaps, and to make a decision. And
because it's a place that is so deep inside you, it's not one
that I or anyone else is permitted to be. Because it is a
decision described as one of morals and conscience, it's one in
which I don't think that I or anyone else is permitted to try
to instruct you or to guide you or to suggest to you.
These are decisions that you will make. And the
interesting thing about them is that when you look at these
things, this is something that with respect to mitigating
factors, if one juror finds a mitigating factor to have been
shown, for that juror, for that one of you, you'd say, I find
that and I vote it and I weigh it and that's going to be part
of my decision. So unlike this process of looking for some
sort of unanimity or uniformity, individual decision is the
watchword. And you'll see that on the form.
And if you get that far, it will be clear that there
were 168 people that died. Whether you find causation -- that
is to say that his actions caused it or resulted in it --
that's for you to find.
"The defendant caused serious physical and emotional
injury." No question there was injury. The question of
causation is for you to find.
"By committing the offense, the defendant caused
severe injuries." The question of causation is for you to
find.
I don't know what to say about the evidence that was
introduced here, the 54 people who testified beyond what you
already saw. The proceedings were interrupted several times by
the Judge reminding us that the evidence that we saw there
could only be considered with respect to the third set of
decisions, the final set of decisions you were going to reach.
And it wasn't -- isn't even relevant for the most part to the
earlier decisions that you're going to confront on the verdict
form that's in front of you.
And then even if you thought that it was important or
relevant for those, it only goes to the question of what harm
was caused and not on the question of what Mr. Nichols' role or
responsibility or participation was.
I feel now when I think about that evidence as though
I'm standing before you and trying to sweep back a tide of
anger and grief and vengeance. And I'm given pause by the fact
that I feel that way, and I wonder if sometimes you might feel
that way. But when I think that, then I think also of the
instructions that the Judge is going to give you, because those
instructions, as we contemplate this tide of anger and grief
and vengeance, can get us all to higher ground, because the
instructions will tell you that neither anger nor grief nor
vengeance can ever be a part of a decision reached in a case of
this kind.
I am, when I say this, not attacking these victims.
We know their sacrifice. But we know that with the centuries
of our civilization piled so high that we have come a very long
way from justice based on vengeance and blood feuds.
This trial was moved from Oklahoma City because, I
submit to you, it was thought that even the neighbors of those
who lost so much would not do to sit in judgment. And to them,
therefore, we can only say when we hear their grief and their
anger and their desire for vengeance, "Bless those in need of
healing."
But when I talk about this process, I want to say that
I believe something else. And I don't want to say it in an
effort to reach into a place that I'm not entitled to be but to
share with you some thoughts about a concept of justice, to
share with you some thoughts that suggest that if you come to
this point you would turn your face towards the future and not
towards the past.
We presented to you only nine witnesses. We could, as
I suppose the other side could for theirs, have presented to
you many, many more. But they told you about Terry Nichols,
the son of Robert and Joyce, the brother of Susie and James and
Les, the father of Christian and Nicole and Joshua, the husband
of Marife, the friend who had helped save the farm of Lyle
Rauh. Each of these witnesses lives in a community. And we
were trying to give you a picture of what Terry Nichols was
like, this -- his life that we're presenting to you.
And I was interested to see the reaction of the
prosecutors to that, because I respectfully submit to you that
it really wasn't fair. You remember when Donna Carino
testified, the midwife, about the home birth, and the
prosecutor took out an exhibit that the defense had but didn't
offer about whether or not the midwife had signed a form saying
there was no chromosomal damage, suggesting to you that maybe
there is something irresponsible about having a home birth with
a midwife because how could she know that.
Well, I submit that that's not fair. 35 years ago
when my son was born at home and the midwife attended, I didn't
think I was doing anything wrong; and if I was ever tried for
anything, I wouldn't suggest that that is something that ought
to be held against one.
MR. MACKEY: Judge, let me interject and object to
personal rendition.
THE COURT: Overruled.
MR. TIGAR: Of course, my son did turn out to be a
public defender, and maybe that's something other than what one
would hope.
MR. MACKEY: Same objection.
THE COURT: Proceed.
MR. TIGAR: I don't think that's fair.
Letters: The prosecutor tells you he went away to the
Philippines and he didn't even think about Josh; all he thought
about was Tim McVeigh. Nonsense. Nonsense. You heard the
evidence. You heard the evidence that early in November, Lana
Padilla wrote him a letter and said, "There is a problem with
Josh," and he dropped everything, he went home, he took Josh,
they went camping, he spent all that time with him.
You heard that he had been away from Marife for less
than two months, and he couldn't stand the fact that he was
away from her, so he changed the power of attorney on his
stock, changed the life insurance, put everything in storage,
went to the Philippines, and surprised her. You heard the
evidence.
And then they say that even in the letters he left
behind there was no concern for Josh. Well, members of the
jury, you'll have the letters. You just have to ask for them.
They won't all be in the room again for you to look at, but you
can get them. But you remember them.
What does he say to Tim? The storage sheds are going
to be -- the rent was up in February, not April, nothing to do
with April. The pickup truck -- that's for Josh. Make sure
that Marife gets the money. Give Josh this money. Give Josh
that money. Here's the money I left behind the counter. I
mean on and on for pages, members of the jury.
Why is it necessary if you're going to ask 12 people
to sign a piece of paper that says go get him someday and take
him and put him on a gurney and put poison in his veins -- why
do they have to exaggerate? Why do they have to do that?
Terry Nichols: Did he trust too much? Did Terry
Nichols trust too much? Did he make that mistake? On the 4th
of May, 1995 -- M621 -- the first letter he wrote after he was
in jail. Now, mind you, all of this has happened. Here he is,
he goes in, he talks to the FBI, they've recorded -- he doesn't
know it -- they've recorded his conversation with his momma,
they've got him in jail, and he writes a letter: "Mother --"
and he asks her to make sure that Marife is taken care of. And
who does he ask her to turn to even at that moment? "See if
you can help her out by talking to Agent Scott Crabtree, FBI,
Salina, Kansas." On the 4th of May, 1995, Terry Nichols still
thinks that Scott Crabtree could be his friend, at least so far
as helping Marife Nichols.
Well, I cannot instruct you, as I say, on the moral
choice. I can remind you that every one of the Judge's
instructions from the prior phase applies here, including the
one about no inference being drawn, no discussion of the fact
that Mr. Nichols did not take the stand. That's something that
is between Mr. Nichols and his counsel, a decision that with
further proceedings hanging over him, he might reasonably make.
MR. MACKEY: Objection.
THE COURT: Overruled.
MR. TIGAR: But it is something about which the Judge
is going to instruct you.
Now, if you get there, you're going to find a list of
mitigators at page 5 of your jury form and then after that, a
place to consider all of these things, each individually, and
then a place to sign that says do you think it's death, life
without possibility of parole, or some lesser sentence to be
decided by the Court, which sends it back to Judge Matsch to
consider in accordance with the law which binds us all here,
and along with those counts on which you found him guilty of
involuntary manslaughter.
Mitigator 1: That Terry Nichols' participation in the
offense was relatively minor. The term "relatively" is for you
to define. I've already read out the excerpt from the Judge's
instruction on Count One, which permitted you to find him
guilty of conspiracy even if you found he only played a minor
role. That's for you.
Second, that another defendant or defendants equally
culpable in the crime will not be punished by death. Michael
Fortier -- Michael Fortier was not asked to take a count that
would carry a death sentence. He wasn't even asked to do that.
His wife, Lori, is home with the kids. You heard what Michael
Fortier did. You heard his relationship with Timothy McVeigh;
and without suggesting for a moment that you should decide, try
to dictate to you one way or another, because again this is
bound up with what you did before -- you know what you thought
about that. That mitigator is in there for your consideration.
Duress. Why is that in there? Well, that's in there
because at one time Michael Fortier (sic) said, "I'm going to
force Terry Nichols to do it." I don't know what you thought
about that statement of Michael Fortier's made at a time when
he himself was carrying a gun because he was frightened, but
it's in there for your consideration.
No prior criminal record. Of course.
A concerned and loving son.
A concerned and loving father.
A devoted and loving husband.
These are by a preponderance, by the way. No one is
requiring you to find or asking you to find that he was a
perfect any of these. That is a standard, I suggest, that none
of us could meet.
Concern for the welfare of his family, even in
difficult circumstances, to the point where when his mother
would send him money to buy things that they don't give you
when you're in the prison, his commissary money, he would turn
right around and send that to Marife in the Philippines.
That he's a caretaker for others including those not
related to him by blood: Lyle Rauh, Simpson, Walsh.
A creative person, who has tried to use his creativity
for the benefit of others.
A positive impact on the lives of many people.
Committed to self-improvement.
Served honorably in the United States Army.
And then one that may give you pause, if you get
there, No. 14: That Terry Nichols is a human being. Well,
you'll find it, I suggest; but this emphasizes the
individuality of the decision that you're to reach, the
decision that says that for each individual deliberating juror,
the weighing, how much of it goes into this process of decision
is for you; that ultimately, when the matter is in your hands,
you're going to decide what feels for you to be this
conscientious response, this reasoned moral response.
Now, what if you get back there and somebody says: An
eye for an eye? Well, you could start by saying: Wait a
minute. Let's read the instructions. Shall we? Because there
is no place for vengeance of that character in the decision
that all of us here took an oath to administer.
You took an oath with respect to the questionnaire,
another oath when we had you here to talk to you back and forth
and asked all of those questions, and another oath to well and
truly try. And all of those oaths dealt with the necessity and
importance of following the Judge's instructions.
But, of course, even then, an eye for an eye,
conscience of the community? Well, the words do appear, I
know, in the Old Testament. They appear at a time when God is
instructing the people of Israel about a system of blood feud
and vengeance. But later on even at that time when a court was
convened to decide who should live and who should die, called a
Sanhedrin, it was decided that a judgment of death could only
be pronounced in the Temple. And so the Sanhedrin stopped
meeting in the Temple. And why? Because in the earliest
stages of the development of our cultural tradition, it was
recognized that when the law in its solemn majesty directs that
life be taken, that can be crueler than deliberate vengeance
because it teaches, because it is a voice that comes from a
place that is at war with a reasoned and compassionate system
of social organization.
I suggest to you that the Government wants to drag you
back to a time of vengeance. I suggest to you that the FBI
agent who said to Lana Padilla on the 21st of April, 1995,
before a jot of evidence was in his hand, "Those two guys are
going to fry," symbolized a rush to judgment that is at war
with what the conscience of the community ought to do and ought
to think about.
I submit to you that to surrender your deliberations
to vengeance is to turn your back on lessons that we have all
learned with great difficulty and a great deal of pain.
Nobody knows the depths of human suffering more than
those who have been the systematic victims of terror; and yet
in country after country, judicial systems are saying that in
each case, the individual decision must triumph over our sense
of anger. Even the Supreme Court of Israel freed from a death
sentence a man found to have no direct participation in the
deaths of people that he had been accused of killing.
In South Africa, when Mandela was released from
prison, it was decided that it would be very, very difficult
despite the record of violence against the black majority to
obtain a death sentence and that a system would be put in place
to make sure that acts of vengeance and anger were not carried
out in the name of the law.
Well, I've gone through the form and I've gone through
the instructions. And if I've said anything that makes you
think that I'm trying to tell you what you already decided or
what you ought to think in terms of your deepest convictions,
please disregard it.
The last time I spoke to you in a closing argument, I

said some things. Let me finish now by noting: The
recommendation you're going to make, if you get to the point of
choosing one of those three things, is binding on the Judge.
If you get to that point, you've got those three choices and
that's what's going to happen: death, life without parole, some
other sentence.
When I concluded my earlier summation, I walked over
to Terry Nichols and said, "This is my brother." And the
prosecutor got up and reminded all of us, thinking that he
would remind me, that there were brothers and sisters and
mothers and fathers all killed in Oklahoma City. Of course,
when I said, "This is my brother," I wasn't denying the reality
of that. I hope I was saying something else. I was talking
about a tradition that goes back thousands of years, talking
about a particular incident, as a matter of fact. You may
remember -- most of us learned it I think when we were young --
the story of Joseph's older brothers, Joseph of the
many-colored coat, now the "Technicolor Dream Coat" in the MTV
version. And they were jealous of him, cast him into a pit
thinking he would die, and then sold him into slavery. And
years later, Joseph turns out to become a judicial officer of
the pharaoh, and it happens that he is in a position to judge
his brothers. And his brother Judah is pleading for the life
or for the liberty of the younger brother, Benjamin; and Joseph
sends all the other people out of the room and announces, "I am
Joseph, your brother." That was the story, that was the idea
that I was trying to get across; that in that moment, in that
moment of judgment, addressing the very human being, his older
brother Judah, who had put his life at risk and then sold him
into slavery, he reached out, because even in that moment of
judgment he could understand that this is a human process and
that what we all share looks to the future and not to the past.
Members of the jury, we ask you, we suggest to you,
that under the law, your judgment should be that this case go
back to Judge Matsch and that he reach the just and appropriate
sentence under the law and under the verdict that you've
already reached.
I won't have a chance to respond to what the
prosecutor says, but I know that after your 41 hours of
deliberations on the earlier phase, you're all very, very
accustomed to thinking up of everything that could be thought.
My brother is in your hands.
THE COURT: Mr. Ryan . . .
REBUTTAL ARGUMENT
MR. RYAN: Thank you, your Honor.
May it please the Court . . .
THE COURT: Counsel.
MR. RYAN: . . . members of the jury, good morning.
Nine weeks ago, we began this process. As
Ms. Wilkinson told you earlier, you've heard a lot of evidence,
seen a lot of witnesses, over 150, 160 witnesses, seen many
exhibits. You've deliberated. And I'm confident you've heard
more about the Oklahoma City bombing and its effects than you
really wanted to know, information that I told you when we
began this process would be painful for you to hear. And
finally, you've heard information about the defendant, Terry
Nichols. In the months and years ahead, the witnesses, even
the important witnesses, the exhibits, your memory will begin
to fade.
But there is one thing that no one of us will ever
forget, and that is that a tragedy befell Oklahoma City on
April 19, 1995, a terrible, terrible tragedy. And unlike other
tragedies in history, this was no act of God. This was not an
earthquake or a flood. It was not a ship running into an
iceberg. It was not a disease or a tornado or a plague. This
was an act that resulted from the conspiracy of two men,
Timothy McVeigh and Terry Nichols. It was an act of injustice.
Injustice.
Now, there is nothing you can do as a jury to bring
back to life those who died. There is nothing you can do to
make whole the bodies who were maimed --
MR. TIGAR: Your Honor, I'm going to object to
improper rebuttal.
THE COURT: Overruled. You may proceed.
MR. RYAN: -- or the injuries that so many people
received, and there is nothing you can do to mend the broken
spirits of those who remain. But it is your responsibility to
write the final chapter in the history of the Oklahoma City
bombing. It's your duty. It is your responsibility.
And that chapter should read history -- should record
that history reflects that justice was done in this trial.
You've been selected by both the United States and the
defense to act as the conscience of the community in this case,
and you've seen it. You've seen what occurred and you've seen
the tragedy that resulted in Oklahoma like few people in this
world will ever see.
If this had been a case involving a conspiracy to
result in the death of a single person, you know, there is no
question that that family member, family member from that
deceased, should be brought before you to tell you about the
impact of that crime. I hope we did not offend you by bringing
you 39 members of 39 deceaseds' families. Please remember that
129 families had to be told that they could have no one testify
in this case.
If an occasional witness became angry or showed
emotion, please set aside that display of emotion but don't
disregard the scope and extent of their loss.
Judge Matsch advised you early in this proceeding
there were three choices that you have with respect to a
sentence. The first was a choice of the death penalty, a
choice to be made by the jury. The second option was life
imprisonment, again an option only available as a sentence by
the jury. And the third option is a lesser sentence, some
lesser term of years than life to be decided by Judge Matsch.
MR. TIGAR: Objection, your Honor.
THE COURT: Overruled.
MR. RYAN: Now, I know it must be tempting to refer
the matter for sentencing to Judge Matsch. I'm sure you feel
that he's a wise man, a wise judge with many years of
experience. But that's not the question of who imposes the
sentence or who decides the sentence. The question is do you
want Terry Nichols to receive a punishment of less than life.
If you do, then the option is Judge Matsch.
THE COURT: Well, that's an incorrect statement of the
law. The Court can impose a life sentence.
MR. RYAN: I'm sorry, your Honor. I misunderstood
your instructions to us last week.
THE COURT: Proceed.
MR. RYAN: But before I proceed one moment longer, let
me urge you that in a crime that resulted in the deaths of more
people that can fill this entire courtroom at this moment, a
sentence of less than life would be an unconscionable result.
It would be simply unconscionable.
MR. TIGAR: Object, your Honor.
THE COURT: The objection is overruled.
Let me just say now to you, members of jury, that I
will be telling you that if you choose to have as your decision
in here a sentencing to be done by the Court, the Court would
sentence according to law and include all of the options that
are available, and there are certain guidelines that the Court
would follow. I'm not going to go through all of those
guidelines with you. But, of course, that can mean a sentence
of less than life.
MR. RYAN: I would urge you, members of the jury, that
the only real choice in this case is the choice between life
imprisonment and death. The facts and circumstances of this
case simply do not warrant the option of a sentence of less
than life. For a crime of this nature with these results, a
sentence of less than life would never, ever be the moral
conscience of the American community.
Now, defense counsel spoke to you earlier about these
steps that the Court will instruct you upon. And the first
step that was discussed with you by Mr. Tigar was the step with
respect to the intent of the defendant in entering into this
conspiracy. Now, when you get a -- back in the jury room after
the Court has instructed you, you'll receive a special findings
form for you to examine. And contrary to what defense counsel
said to you moments ago, you will not find the words "murder"
or "kill" or "intent to murder" or "intent to kill" or "malice"
or "malice aforethought" anywhere in that verdict form.
And it's not like premeditation that you were
instructed on with respect to the murder counts. You're not
being asked to respond with respect to the intent to commit
murder. You've already done that. And that's why those words
are not in this instruction.
These instructions deal with issues such as was it
contemplated when this conspiracy was entered into that death
would result. That's the intent element.
The second hurdle, according to the defense, is the
question of the statutory aggravating factors. Those were
discussed with you briefly this morning, and I won't repeat
that. I will simply note defense counsel gave short shrift of
that aggravating factor that deals with did this conspiracy
pose a grave risk of death to others.
I intend to speak to you some this morning about how
you might look at the mitigation that was offered in this case
by the defense, the perspective that you might bring to that
mitigation.
At the outset, let me make it clear we don't contest
many of these factors that are offered in mitigation. We don't
contest that Terry Nichols is a human being or that he was
committed to his own self-improvement or that he was in the
Army for a year or that he is a creative person.
But please consider this: Don't think the fact that
Terry Nichols is a human being or that he made Christmas
pinatas or he drew pretty pictures while he's been in prison is
some type of real mitigation, is some sort of justification for
this crime. If you give that any weight, it should be very
little, particularly when you place that up against -- side by
side with the aggravating factors shown in this case through
the evidence that you've heard.
The defense has put on a good deal of information
about the life of Terry Nichols, called several witnesses, told
you about that life; that he came from a good family, he had
loving parents, parents and a family that were so nice they set
aside what they were doing to go help a neighbor who was
needing his cows to be milked. A respected farm family,
according to his sister.
He had one few criminals have. He had a good home, he
had loving parents, and he had supporting siblings, supportive
brothers and sisters.
This is not a reason or a justification for conspiring
with Tim McVeigh to use a weapon of mass destruction against
the Murrah Building.
They also presented information to you about the fact
that Terry Nichols is intelligent; that he was educated; that
he was creative; that he was artistic. They showed you a Terry
Nichols who had the financial means to take his family snow-
skiing, water-skiing, to vacation in Florida. Clearly, Terry
Nichols had all the advantages.
But when you think about this -- and the perspective
that I ask you to approach this information with is, is this
information mitigation? Does it really mitigate the offense?
Terry Nichols did not grow up in a crime-ridden
neighborhood. He didn't have a mother who was on crack
cocaine. He didn't have an absent father when he was a child.
He wasn't born with fetal alcohol syndrome. He wasn't taught
to hate. He wasn't deprived of moral guidance. He wasn't born
with some type of mental defect or learning disorder.
The facts I've just mentioned -- they might be real
mitigation for some crimes, but that's not the information that
you've heard.
If anything, the information you heard makes it more
difficult to comprehend and understand what would make someone
enter into this type of conspiracy, a conspiracy with no
parallel in American history.
Surely the defense is not suggesting that it's okay to
execute someone who comes from a ghetto or from a lower class
than to treat someone with all the advantages differently,
better, to spare his life.
In this country, we have, or we should have, equal
treatment for all. And I urge you to reject this type of
emotional bond that the defense has tried to build that Terry
Nichols is like us, he's not so horrible, he's just like one of
us.
Terry Nichols is not like one of us. Terry Nichols
conspired to use a weapon of mass destruction, a truck bomb,
against a building in a downtown metropolitan community.
Give him equal treatment. Don't give him the
advantage of his advantages.
The remaining mitigating factors that you heard about
Mr. Tigar discussing this morning, or many of them, revolve
around the notion that Terry Nichols was a loving son, a loving
husband, and a loving father. Was he a loving son?
You heard that Terry Nichols went to Michigan where
his mother lives in April of '95 to attend gun shows. While he
was in the area, he stopped by her house only to find that she
was in Florida.
You received a great deal of information, stacks and
stacks, sheets, about phone records made by Terry Nichols.
You'll not find a record there where Terry Nichols called his
mother, Joyce Wilt.
Was he a loving father? Mr. Tigar reminded you this
morning about that call between Lana Padilla and Terry Nichols
in November of 1994, a couple of days after the Roger Moore
robbery. Lana Padilla didn't know how to find Terry Nichols.
She had to write a mail drop in Manhattan, Kansas, to ask him
to please call home so she could talk to him about Josh.
And you remember that testimony when she said when he
called and she was wanting to talk about the welfare of Josh,
Terry Nichols was wanting to talk about an uprising against the
government.
The defense called Lana Padilla to say what you would
expect the mother of his child to say. And it wasn't moments
later they called witnesses to trash her.
And remember that one of the skills that Terry Nichols
taught his son, his 11-year-old son, was how to make an
explosive. It was belittled today as a small explosive. And
remember how Terry Nichols when he went to go to the
Philippines in November of '94 -- how he left 200 pages of
antigovernment rhetoric with Barry Osentoski with one request:
Please teach this information to Josh Nichols.
MR. TIGAR: Objection, your Honor. This misstates the
evidence.
THE COURT: Well, the jury knows the evidence and can
consider whether it's a misstatement.
Proceed.
MR. RYAN: Remember -- was he a loving husband?
Remember how Terry Nichols sent Marife and his daughter to the
Philippines so he could go be with Tim McVeigh? And remember
when defense counsel -- when Marife was on the stand and
defense counsel said there is 117 calls from Terry Nichols to
Marife during the six months she was in the Philippines? They
neglected to tell you that only a tiny fraction of those calls
were ever completed. Five. Five calls for a total time of
less than an hour and a half.
This is a man, a husband, who got up from Easter
dinner three days before the bombing, left his family, went to
Oklahoma City to be with his friend, Tim McVeigh, who lied to
his wife about where he was going, lied to his wife about what
he was doing the week before the bomb, a man who only now
prepares Valentines and Easter cards knowing that one day they
would be exhibits in a hearing.
Would a loving son, husband and father commit an act
of terrorism and leave his family to pick up the aftermath?
You know, I say these things to you about him, Terry
Nichols, as a son and a father and a husband not because he
deserves the death penalty for the way he treated his family,
simply to point out that that's not really mitigation. His
actions towards his family are not mitigation. We're asking
for the death penalty because of the crime he committed, an act
of terrorism.
The nine witnesses the defense called attempted to
tell you the story of Terry Nichols; but you know they didn't
tell you the whole story, not by any means. There were no
photographs, there was no testimony about what occurred the
year before the bombing, how he treated his family during that
year. You know at some point in his life something went
terribly wrong; and when something went terribly wrong in his
life, it went terribly wrong for 168 people in Oklahoma City.
Terry Nichols is a product of his choices, as
Ms. Wilkinson reminded you. He chose to leave the family farm
in Michigan, he chose to leave the Donahue farm in Kansas to be
with Tim McVeigh, and he chose to enter into this conspiracy.
Now it's time -- it's time for Terry Nichols to accept
responsibility for his actions.
One of the mitigating -- claimed mitigating factors
mentioned by the defense this morning was that there is another
defendant who is equally culpable to Terry Nichols who didn't
get the death penalty. As Ms. Wilkinson pointed out, we can't
charge someone that we can't identify, so you must disregard
all of that information about whether or not there is someone
out there. If there is someone out there and they're found,
they'll be prosecuted.
What he's referring to is Michael Fortier. But before
I respond to that argument, let me make one thing very clear:
We are not here to defend Michael Fortier. Michael Fortier, as
Ms. Wilkinson reminded you, could have picked up a telephone,
called the police, and most likely prevented this tragedy.
What he failed to do is indefensible. His omission is
unforgivable.
But Michael Fortier is not as culpable as Terry
Nichols. Michael Fortier did not rent two storage lockers in
Council Grove, Kansas, to store bomb components. Terry Nichols
did that.
And Michael Fortier did not clean out Terry -- Tim
McVeigh's locker in Herington the day after the Oklahoma City
bombing. Terry Nichols did that.
And Michael Fortier did not steal explosives in
Marion, Kansas, and transport them to Arizona. Terry Nichols
did that.
And Michael Fortier did not go to Ennis, Texas, to buy
nitromethane with Tim McVeigh. Terry Nichols did that, too.
And Michael Fortier did not sell gold coins to finance
the purchase of the nitromethane. Those were the acts of Terry
Nichols.
And Michael Fortier did not buy 4,000 pounds of
ammonium nitrate, the main charge of this bomb. Terry Nichols
did that.
And Michael Fortier did not obtain the Bridges credit
card under an alias name and share it with Tim McVeigh, a
call -- a card that was used to make telephone calls to acquire
bomb components. That was a card that Tim McVeigh shared with
Terry Nichols.
Michael Fortier did not rob Roger Moore, and Michael
Fortier did not knowingly and intentionally drive five hours
each way on Easter Sunday to help Tim McVeigh stash the getaway
car. And central Kansas is a place that Michael Fortier was
nowhere near in April of '95. That was Terry Nichols'
backyard.
The next factor, mitigating factor, the defense claims
is that Terry Nichols' role in the conspiracy was a minor one.
I want to remind you with respect to this that this burden,
unlike the other burdens in this case, is on the defense. They
must prove to you by a preponderance of the evidence that Terry
Nichols had a minor role in the conspiracy.
And I ask you when you analyze this question of minor
role, please remember that you're analyzing his role and the
crime for which you found him guilty, conspiring to use a
weapon of mass destruction against the Murrah Building.
You are not -- and I emphasize not -- analyzing what
his role was in taking the truck bomb to Oklahoma City and
igniting the bomb. That's not the crime. The Court will
instruct you on this. It's the role in the conspiracy.
And, you know, who is to say how this conspiracy got
started, who influenced who. Whose idea was it: Was it Terry
Nichols', or Tim McVeigh's to bomb the Murrah Building?
The evidence is that both of these men were upset with
the government. And you remember the testimony of Marife. She
was so concerned about Terry Nichols' antigovernment views that
she called Terry Nichols' mother to ask for guidance.
Both these men were upset over Waco, both had
antigovernment material, both shared antigovernment feelings.
And remember, please, when you deliberate that Terry Nichols is
12 years older than Tim McVeigh. You heard from Dave Dilly.
Mr. Tigar talked about him this morning. The one thing that
came out clear from his testimony is that as between the two
men, Terry Nichols was the leader, Tim McVeigh the follower.
You've heard how intelligent Terry Nichols is. You've heard
how he was the platoon leader the entire time these men's
company was being in Army training.
And you heard how Tim Mc -- excuse me -- and you heard
how Terry Nichols knew how to make an ammonium nitrate bomb
well before he ever met Tim McVeigh. By your verdict, you've
already found that Terry Nichols knowingly and deliberately
entered into this conspiracy. You have found that it was
foreseeable that death would result from this conspiracy. And
you know all of the actions that Terry Nichols took right up
until the end. These were not minor actions.
You know, minor role might be someone who gave the
plans of the Murrah Building to his co-conspirators or
suggested a place to rent a truck where they wouldn't ask for
identification. But a minor role is not someone who
deliberately and knowingly planned the attack, purchased and
stole the components and stored them in lockers and stashed a
getaway car days before the bombing. The defense has not met
its burden of proving that Terry Nichols had a minor role.
The final mitigating factor raised by the defense was
that Terry Nichols was under some sort of unusual or
substantial duress. Defense counsel didn't talk long about
that and for good reason. There is not much to say. He picked
out a line that Michael Fortier told you about where Tim
McVeigh said, "I think I can make Terry do it." This is the
same Michael Fortier that just two weeks ago the defense was
calling this crazed methamphetamine user. Either accept his
testimony or don't, but don't allow the defense to pick and
choose what they like.
The burden of duress -- proving this is upon the
defense. And they haven't met that burden. They called no
witnesses, introduced no exhibits. Who knows what Tim McVeigh
meant when he said that to Michael Fortier? Was he bragging?
Was he trying to sound like a tough guy? Was it some ploy to
recruit Michael Fortier? Who knows? But one thing is clear:
The statement that we're talking about was made in March of
1995, a time frame after which Terry Nichols had already done
quite a number of things. And you recall those things, and I
won't discuss them further with you. But the bomb components
were already in storage under aliases of Ted Parker and Joe
Kyle.
You've not heard any evidence at all, not a shred,
that Terry Nichols was ever afraid of Tim McVeigh or that Terry
Nichols was ever threatened by Tim McVeigh. And as
Ms. Wilkinson pointed out, Terry Nichols spent nine hours with
the FBI at a point in time that Tim McVeigh was well in custody
and of no possible threat, and he mentioned not a word of
duress. And he didn't mention it for a reason: There was no
duress. These were his voluntary actions.
The evidence you've heard is that Terry Nichols and
Tim McVeigh were friends. They were business partners. They
were Army buddies. They shared a calling card. They spent
time together. They spent so much time together that Marife
Nichols was jealous.
Nothing in this case, ladies and gentlemen, when you
look at all the mitigation you've heard, comes close to
minimizing Terry Nichols' participation in this conspiracy to
bomb the Murrah Building and the people inside. It in no way
lessens his responsibility for this crime, and it in no way
explains his reprehensible conduct and actions.
As you deliberate in this case and you consider these
matters of mitigation and aggravation, I ask you to think of
the lady of justice with the blindfold across her eyes and a
scale on each side. And when you think about the scale that
holds the aggravation and aggravating circumstances of this
case, think about 4,000 pounds of weight that causes that scale
to fall. And when you think about the mitigation, the
justification you've heard, think about grains of sand softly
falling on the plate of mitigation.
This trial has almost come to a close. And an irony
struck me this morning as I was preparing to come here today.
From April, 1995, until January, 1998, over two-and-a-half
years, Terry Nichols has received due process. The United
States is such a remarkable country. He has had a full and
complete trial. He's had extremely competent counsel. He's
been afforded every right guaranteed by our constitution. He
and his counsel participated in the selection of you, the jury.
He's had numerous counsel including paralegals, investigators.
And I ask you: Where was the due process for the men, women
and children of Oklahoma City, of the Murrah Building?
MR. TIGAR: Objection, your Honor.
MR. RYAN: They never had a trial. They never had a
team of lawyers. They never had a moment's warning. They
never had a chance to beg for mercy, as Mr. Tigar has so
eloquently done for Mr. Nichols today.
And the mothers and fathers of the 19 children don't
hold their babies, as Terry Nichols does every week.
I've talked to you -- I've spoken to you some this
morning about what has not been proven in mitigation. What I'd
like to talk to you in the few minutes I have remaining is what
has been proven. You learned that Terry Nichols was raised by
his family on a farm. You saw a picture of Terry Nichols and
his mother sitting on a tractor. Blake Kennedy will never sit
with his mother on a tractor on their farm in Amber, Oklahoma.
You saw -- and you heard about Terry Nichols, the Boy
Scout. Elijah and Aaron Coverdale will never enjoy scouting.
You heard about Terry Nichols who liked to climb
trees. Jaci Rae Coyne died before she ever saw the world from
the top of a tree.
You learned that Terry Nichols enjoyed walking on his
hands when he was a boy. You remember the video of Brandon
Denny, the child that you saw limping in the office of his
physical therapist. He can't even hold a bag of Animal
Crackers in his hand.
You saw a picture of Terry Nichols and his Christmas
pinatas. Antonio Cooper, Little Tone: He'll never take a
swing at a Christmas pinata. He'll never take a swing at a
ball.
You saw a picture of Terry Nichols holding his newborn
son -- excuse me -- newborn daughter. Mike Lenz will never
have a chance to coach his wife while she's pregnant, help her
in her delivery, be with that child and its mother when the
child is born; and he will never hold his son in his arms.
When you go back to deliberate and talk about the
case, consider first, if you will, please, the voluntary acts
of Terry Nichols that led to the attack on the Murrah Building;
second, consider the extreme consequences of those voluntary
acts; and third, consider the excuses that were offered to you
as justification for this crime.
And then I ask you to render a sentence, an
appropriate sentence, a sentence that reflects the moral
conscience of the community, a sentence that is appropriate for
the deaths of 168 American men, women, and children.
And I thank you.
THE COURT: Members of the jury, everyone comfortable
enough to go forward? I'd like to go forward with the
instructions.
JURY INSTRUCTIONS
THE COURT: Now, of course as I tell you in these
instructions -- and you will have a copy of the original
instructions that I gave you in detail at the close of the
evidence in the case when it was given for you to decide on the
charges in the case, and I'm not going to repeat all of them
now. You'll have that in writing. But before I begin with
these instructions, I just remind you of two things said then.
One is, of course, that these arguments of counsel are just
that. They're arguments in the case and they are not a part of
the evidence or the information to be considered. That's what
came from the witness stand and the testimony of the witnesses
and the exhibits that were received.
Also, as I said in the original instructions, it's
appropriate for counsel in the case to state in their arguments
what they believe the law may be -- and there has been some
dispute about that and I've made some quick rulings here, but I
just want to remind you that if any difference appears to you
between the law as stated by any of the lawyers in the case and
the law as I give it to you in the instructions, you are, of
course, to be bound by the law as given to you by the Court in
the instructions.
Now, Terry Lynn Nichols has been found guilty of the
crime of conspiracy as charged in Count One of the indictment.
The jury in this case also decided that Terry Lynn Nichols was
not proved guilty beyond a reasonable doubt of the crimes
charged in Counts Two and Three in the indictment and, as to
the eight counts of first-degree murder, found him guilty of
the lesser included offense of involuntary manslaughter. The
sentencing on the guilty counts on those eight counts of
involuntarily manslaughter is a matter to be determined by the
Court.
Your prior verdict acquitted Mr. Nichols of Counts Two
and Three and acquitted him of first-degree murder and
second-degree murder on Counts Four through Eleven. I instruct
you that these verdicts represent final and binding
determinations as to the issues that you necessarily decided in
reaching your decisions; that is, as I have said, no party is
entitled to ask you to change your verdict at this stage, nor
are you entitled to do so under the law.
The statute defining the Count One offense, 18 United
States Code Section 2332(a), provides that if death results
from the conspiracy, the punishment may be death, imprisonment
for life without any possibility of being released, or any
lesser sentence provided by law and decided upon by the Court.
The selection among these three choices must be made by the
jury. Even though you have found Mr. Nichols guilty of this
charge carrying a possible death sentence, the law requires
that you approach this sentencing decision with an open mind,
able to give meaningful consideration to all possible
sentences.
A copy of the indictment, a copy of your completed
verdict form, and a copy of the previous instructions given to
you at the close of the trial will be given to you for your
reference in making your findings. You will also have
individual copies of these instructions and the special
findings form.

As I have told you previously, you must decide whether
the appropriate sentence for the defendant is: (1) death, (2)
life in prison without possibility of release, or (3) some
other lesser sentence to be decided by the Court. Your
recommendation that the defendant be sentenced either to death
or to life in prison without possibility of release will be
binding on this court, and I will sentence the defendant
according to your recommendation. In the event you choose the
third option and recommend that the defendant receive some
lesser sentence, I will impose some other lesser sentence than
death or life in prison without the possibility of release in
accordance with applicable law.
As I mentioned during arguments here, that will be
done according to certain guidelines, which I'm not going to go
into you -- into detail with you now; but, of course, a
sentence to a number of years -- and there is no parole in the
federal system of sentencing. Under federal sentencing, the
sentence of whatever number of years is the number of years the
person serves. There is no parole board to release anyone
early. So, of course, given the defendant's age, a sentence to
a specific number of years could be a sufficient number of
years as to be the equivalent of a life sentence for that
person.
Now, before deciding on the appropriate punishment,
you must consider additional information about the crime and
about the uniqueness of the defendant as an individual human
being. The parties have presented information pertaining to
aggravating and mitigating factors at this sentencing hearing.
The information you may consider also includes the evidence
presented at trial and any fact findings you made in arriving
at your verdict. Thus, you may consider the testimony,
exhibits, and stipulations offered by both sides during the
guilt phase and the parties were not required to reoffer that.
Based on your consideration of evidence presented at
trial and the information presented at this sentencing hearing,
you must make a series of findings to guide you in arriving at
a reasoned moral response to Mr. Nichols' crime, background,
character, and circumstances of the crime. These findings are
to be entered on the special findings form, and you will have
this form, each one of you, a draft copy of it. And it is in
sections.
Section 1 of the special findings form asks you to
decide what the evidence and information provided to you at the
trial and at the sentencing hearing proved as to Mr. Nichols'
intentions. The Government has alleged that Terry Lynn Nichols
engaged in the conspiracy with two types of intent:
(1) That Mr. Nichols intentionally participated in an
act contemplating that the life of a person or persons would be
taken or intending that lethal force would be used against a
person or persons and the victim or victims died as a result of
that act;
Second, that Mr. Nichols intentionally and
specifically engaged in an act of violence knowing that the act
created a grave risk of death to a person or persons other than
a participant in the offense, such that participation in the
act constituted a reckless disregard for human life and the
victim or victims died as a direct result of the act.
Participation in a conspiracy involves the act of
conspiring or agreeing with one or more other persons to commit
a crime. The act of conspiracy or agreeing to use a weapon of
mass destruction against persons and property may but need not
be considered to be an act of violence.
There can be no sentence to death or imprisonment for
life without release unless all of the jurors agree that the
Government has proven at least one of these intentions beyond a
reasonable doubt. You will recall that the instructions given
at the close of the trial informed you that a reasonable doubt
is the kind of doubt that would make a reasonable person
hesitate to act in the most important of his own or her own
affairs. When you have unanimously agreed on your answers to
these two questions, the foreperson will write "yes" or "no" on
the appropriate lines on Section 1 of the special finding --
findings form for each of these two intent elements. If you
answer "no" with respect to both elements, then conclude your
deliberations, sign the certification in Section 6 of this form
and advise the Court that you have reached a decision. If you
answer "yes" with respect to either or both of these intent
elements, then continue your deliberations and proceed to
Section 2 of the form.
Section 2 of the special findings form asks whether
the Government has proved beyond a reasonable doubt three
statutory aggravating factors. An "aggravating factor" is some
circumstance that tends to support imposition of the death
penalty. A "statutory aggravating factor" is one specifically
prescribed by Congress. The Government has alleged three such
statutory aggravating factors:
(1) That the deaths or injuries resulting in death
occurred during the commission -- during the commission of an
offense under 18 United States Code Section 844(d); that is,
transportation of explosives in interstate commerce for certain
purposes.
(2) That the defendant in the commission of the
conspiracy offense knowingly created a grave risk of death to
one or more persons in addition to the victims of the offense.
(3) That the defendant committed the conspiracy
offense after substantial planning and premeditation to commit
an act of terrorism.
There are specific elements that must be established
by proof beyond a reasonable doubt for each of these three
statutory aggravating factors.
The first statutory aggravating factor alleged is that
the deaths or injuries resulting in death occurred during the
defendant's commission of another crime, the interstate
transportation of an explosive with the knowledge and intent
that the explosive will be used unlawfully to damage or destroy
any building or property. To establish this aggravating
factor, the Government must prove beyond a reasonable doubt
each of the essential elements of that crime as set forth in
Title 18 United States Code Section 844(d). This was not one
of the crimes charged in the indictment.
That section provides, in pertinent part, that:
"Whoever transports . . . in interstate . . . commerce any
explosive with the knowledge or intent that it will be used
unlawfully to damage or destroy any building, vehicle, or other
real or personal property shall be guilty of a federal felony.
There are two essential elements to this crime: First, the
defendant must knowingly and willfully have transported or
aided and abetted in the transportation of an explosive from
one state to another. Second, the defendant must have done so
with the knowledge or intent that the explosive would be used
unlawfully to damage or destroy any building, vehicle, or other
real property.
To act knowingly and willfully, a defendant must have
been conscious and aware of his action, must have realized what
he was doing, and must not have acted because of ignorance,
mistake or accident. The defendant must also be shown to have
acted with a bad purpose or evil intent; that is, he must have
transported or aided and abetted in the transportation of the
explosive with the knowledge or intent that it would be used
unlawfully to damage or destroy any building, vehicle, or other
real or personal property.
The term "explosive" means gunpowders, powders used
for blasting, all forms of high explosives, blasting materials,
detonators, and ot