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.
 
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
 
                     REPORTER'S TRANSCRIPT
                (Trial to Jury:  Volume 160)
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
         Proceedings before the HONORABLE RICHARD P. MATSCH,
Judge, United States District Court for the District of
Colorado, commencing at 8:35 a.m., on the 7th 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, 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 8:35 a.m.)
         THE COURT:  Be seated, please.
         May I have counsel at the bench.
    (At the bench:)
    (Bench Conference 160B1 is not herein transcribed by court
order.  It is transcribed as a separate sealed transcript.)


    (In open court:)
    (Jury in at 8:40 a.m.)
         THE COURT:  Members of the jury, good morning.
         JURORS:  Good morning.
         THE COURT:  As I indicated to you yesterday afternoon
when I recessed your deliberations for the day, I would today
answer the question which you gave me late yesterday about a
quarter to five.
         Before addressing that directly, I want to sort of
review where we are in the case.  You, of course, heard the
trial in this case, heard the evidence at the trial, and on
December 23, returned your verdict.  And your verdict was
guilty on Count One, charging the conspiracy to use a weapon of
mass destruction; not guilty on the Count Two, use -- actual
use of a weapon of mass destruction by Mr. Nichols, and not
guilty on Count Three, the destruction by explosive count.
         You also on the Counts Four through Eleven, charging
first-degree murder, returned verdicts of not guilty of
first-degree murder, not guilty of second-degree murder, and
guilty of involuntary manslaughter.
         Now, because the offense of conspiracy to use a weapon
of mass destruction under Count One does by statute provide
that a person found guilty of that crime could be sentenced to
death, it was required of you that you proceed to the hearing
of additional information, because you also found in your
verdict that deaths did result and that these deaths were
foreseeable.  And that was what under the statute made possible
the imposition of the death sentence.
         So the information that you heard primarily dealt with
consequences of the bombing of the Alfred P. Murrah Building;
and in addition, of course, you heard things about the
defendant, Mr. Nichols, and things regarding his character,
background, and so forth.
         And then I instructed you with respect to how you must
approach the sentencing decision with instructions that outline
for you how you should analyze these questions and told you
that you had three choices, a choice among three options.
Those include death, a sentence to life imprisonment without
the possibility of ever being released, and any lesser sentence
provided by law to be decided by the Court.  And I told you
also that before considering the aggravating and mitigating
factors that were presented to you, information about them, you
must -- and before weighing them, you must focus on the
question of intention and told you that there were two criminal
intents to be considered.  And those were defined in the
instructions; and also, the verdict form directed that you
first go to Section I and first decide on intent.
         Now, this focus on intention is required by first of
all the -- what is the federal death penalty statute.  There is
a statute that deals specifically with the procedures to be
followed before a death sentence can be imposed in federal
court under federal law, regardless of the underlying crime for
which a death sentence is possible, so that in this case, the
underlying crime is this conspiracy to use a weapon of mass
destruction.  But then we turn to another statute, the federal
death penalty statute, that prescribes the procedures that must
be followed before such a sentence can be imposed.  And it is
that statute that says that there must first be a finding of a
requisite intent, which essentially is different forms of an
intention to kill.
         Now, that's required not only by statute but by the
Constitution of the United States, because there are really two
provisions in the Constitution of the United States that come
into focus when we're talking about the ultimate penalty of
death.  One is the Eighth Amendment, prohibiting cruel and
unusual punishments, and in these terms, when we're considering
sentencing, that has been interpreted by the Supreme Court to
preclude the possibility that someone would be sentenced
arbitrarily or capriciously or without a reasoned, rational,
moral response; and also the Fifth Amendment, providing that,
of course, no person can be deprived of life without due
process of law.  And the due process of law involves the
procedures that are necessary.
         Well, due process of law also requires that the
Government has the burden of proof on these questions of intent
and that the standard is beyond a reasonable doubt.
         So putting those things together, what the law
requires and what I instructed you on is that before you even
proceed with this matter of weighing the aggravating and
mitigating factors, or finding them and then weighing them, you
must focus on this issue of intention:  Was there proved to you
beyond a reasonable doubt, all of you, that Terry Nichols
intended to kill, using one of these two intentions as
described in some detail?
         And, of course, due process of law means also that all
12 jurors must be convinced beyond a reasonable doubt that the
proof was there.  Each individual must decide that based on the
evidence that was presented, but all must agree upon it; and
the unanimity on that issue is, of course, a fundamental
requirement of the law.
         You then on Monday undertook your task of deliberation
and discussed this matter all afternoon.  You then sent to me a
communication.  And this was fairly late in the afternoon.  In
substance, the communication was that some of you questioned
whether you'd already decided intention and what difference was
there.
         I answered that question here in court when I excused
you for the day, recessed your deliberations for the day, by
explaining that I couldn't give a direct answer to that.
That's not one of those questions where I could just say yes or
no.  It's sort of a "not necessarily" or "it all depends" type
of answer, because as I attempted to explain to you, it depends
somewhat on the jury's view of the evidence that supported the
verdict.
         And of course, you were not required to explain in
detail the way in which you decided that.  And you're still not
required to; never will be.  But I did not want to in my answer
in some way assume anything about the view that each one of you
had with respect to the evidence and what it did or did not
show with respect to intention.
         Now, that answer, I'm sure, is not very satisfactory
to you, because, of course, it would be more comforting for you
to -- me to tell you something more specific.
         But, as good citizens, you went to work and
deliberated more yesterday.  And what I did ask you to do is to
take a close look at the original instructions that I gave you
with respect to the elements of the offense of the conspiracy,
so that you could focus on just what was required for your
decision there and that also take a close look, on the
instructions that I gave you, with respect to these particular
specific intentions that must first be proven to your
satisfaction.  And I'm satisfied that you did that and carried
on your deliberations.
         And, of course, I'm sure that when you did that, you
saw by comparing them that there was a difference and that the
instructions with respect to what must be proved beyond a
reasonable doubt to find the defendant guilty of conspiracy did
not include the specific intentions that are required for a
finding of what you may say is the possibility of a sentence of
death.
         You then sent to me a second communication yesterday;
and in substance, again, without reading it now, it amounted to
telling me that there was -- well, that you were at a stage of
something of an impasse with respect to answering on these
intent questions.
         And I gave you a written response to that question.
In that, I attempted to go a bit beyond what I told you in
court Monday afternoon and explained to you that your verdict
on Count One did not require you to answer these two questions
in any particular way.  And I said that this might be helpful
to you again to have a little more definite answer; that you're
not really required of what you decided in your verdict to make
a decision on these two questions in any certain way and that
you should consider your answers to these questions based upon
everything that you have heard, including the information that
was provided since the return of the verdict.
         You did then late yesterday afternoon send to me a
communication that says that you are not, after all of these
deliberations, unanimous in your view as to whether all that
you have heard satisfied you beyond a reasonable doubt that the
Government met its burden of proof with respect to these
necessary specific intentions.  And, you know, that was shortly
before the ordinary time for recess.  And I told you then when
I recessed, I'd talk to you some more about it this morning.
And that's where we are.
         Now, you used a phrase through your foreperson that if
you are required to be unanimous, yes or no, on the two
questions that are these really principal questions that have
to be decided by intention that you are "hung."  And, of
course, I'm sure you've heard of a hung jury; and that's the
phraseology, which means a jury that can't decide.
         Now, this is, you know, different from a hung jury in
the sense that it is used, which means a jury that is not able
to decide whether the evidence proves the charges.  You weren't
a hung jury there.  You did decide that, and you returned a
verdict.  And a hung jury in that sense results in what is
called a "mistrial" and requires another trial, the selection
of another jury, presentation of the evidence with respect to
the charges, and so forth.  So it sort of wipes away the trial
and requires a new trial.
         Well, it's different when a jury is in this position,
as you are, and that is a sentencing jury.  You have disposed
of the charges.  You have made a final decision with respect to
the charges.  That was what your verdict was on December 23.
         Here, now, when these questions are put to you, well,
what sentence should be imposed, using these three options,
when you are not all convinced and all in agreement that the
information and evidence presented to you satisfies you beyond
a reasonable doubt that Terry Nichols acted with either or both
of these two intentions, that, itself, a decision.  It is
really the jury's choice of the third option, which is
sentencing by the Court.
         Now, when that happens, the question then becomes:
Well, should we take that as a final decision from the jury?
And the answer to that depends upon assessing the jury's
deliberations:  Has the jury had an adequate, reasonable amount
of time to talk it over and to make the decision after
exchanging views; and, of course, an assessment of has the jury
used that time and worked at it.
         Well, I've discussed that aspect of the case with the
lawyers in the case, and Mr. Nichols had an opportunity to
participate in that as well.  And we have decided -- I have
decided after discussion with them but without real
disagreement here that in assessing your work that you have had
an adequate opportunity to discuss it, to deliberate, and to
decide.  And we know that you've worked at it.  There is no
question about that in anybody's mind.
         So having determined that there has been what is a
reasonable and adequate opportunity to decide, I am not going
to require you to go further.  I am, in short, going to
discharge you.
         But I want to reemphasize that in doing so, I'm
accepting that being unable to get unanimity that there has
been proof beyond a reasonable doubt on these necessary
specific intentions that amounts to your decision that there is
no unanimity on that; and therefore, you've decided that the
sentencing in this case should be done by the Court under
sentencing guidelines and applicable law.  And that is what I
will do.
         Now, what I want to say to all 12 of you and to
everybody in this courtroom and to the public as a whole:  You
have done your job in this case.  I do not want you to feel
that you have in any way failed to meet your responsibilities,
because you have.  And you know, the result here will be
subject to comment by many, as indeed your verdict of
December 23 will be and has been.  There will be some who will
criticize it and this outcome.  There will be some who will
praise it.  There will be some who understand it, and there
will be some who do not understand it; and there will be others
who even though they do understand it will mischaracterize it.
         You know that you are answerable to no one for your
decisions.  You have no obligation to explain your decisions to
anyone -- not to me, not to the lawyers, or not -- nor to
anyone else.
         You may not impeach your verdict; that is, none of you
can walk away from what you've decided.  And it can't be
exchanged.  This is a final decision, both with respect to your
verdict on the charges and with respect to the -- what amounts
to the decision that the specific intent has not been proved to
the satisfaction of all 12 of you beyond a reasonable doubt.
Therefore, there can be no death sentence.
         You came together here.  You were selected through a
very careful selection process to be the jury to decide in this
case.  You were called away from your personal lives, from your
work.  You made financial sacrifices in addition to the time
that you have spent with us on this case.  You were in this
courtroom at a difficult time, because there was during that
time, as normally, a holiday spirit in the air, a lot of people
off from work enjoying family and friends and traditional
holiday activities.  And you were called away from that.  You
met your obligations every day in sometimes difficult weather,
always were here on time.  You paid careful attention
throughout the trial.  You served.
         You know, during the jury selection process where --
and, of course, that was individual with each of you -- there
were times when I referred to this as somewhat analogous to
military service, a call to your country's need; come and
serve.  And each one of you did that.  Each one of you answered
the call.
         And I believe now that you're entitled to know that
your service is recognized as that.  And you have served
honorably and you have served well, and you should take pride
in your service.  And as I have said before, you should not
consider that this end result is in any way a dereliction of
your duty or failure of your answering the call.
         Members of the jury, I am now going to discharge you
from this service.  And of course, that means that you are no
longer subject to the orders of the Court in this matter.  You
return to your lives as they were before, although I'm sure
they will never -- you will never forget this.  And your lives,
I'm sure, have been affected by the things that you have seen
here, heard here, and your participation with the other jurors.
         I will ask you to remain just a few minutes after the
Court recesses, because I want to talk briefly with you on a
more personal level and more private level.
         But with this ruling that I have made, you are now
discharged as the jury in this case.  You're excused from the
courtroom.
    (Jury out at 9:05 a.m.)
         THE COURT:  Well, this results in the jury's verdict
now becoming a final verdict for purposes of the application of
the Federal Rules of Criminal Procedure dealing with post-
verdict motions.
         Mr. Tigar . . .
         MR. TIGAR:  Yes, your Honor.  In that regard, we do
move -- renew our motion under Federal Rule of Criminal
Procedure 29, we move under Rule 33, and we move under Rule 37.
And we would ask for February 9, 1988 (sic) for the filing of
the written version of those motions, it being clear that the
motions are made within the time set by the Federal Rules of
Criminal Procedure and the Court having the authority to extend
the time, provided the motions are timely made.
         THE COURT:  What date did you suggest?
         MR. TIGAR:  I asked for February 9, 1998, your Honor,
which is a Monday.
         THE COURT:  Any objection to that extension of time?
         MR. MACKEY:  That's agreeable, your Honor.
         THE COURT:  All right.  That order is entered.  The
time is granted to February 9.
         I do intend, however, to proceed under Rule 32 and to
proceed as I told the jury with court sentencing, utilizing the
sentencing guidelines provided by the sentencing commission.
And, of course, that requires the preparation of a presentence
report.  And I've asked our chief probation officer for the
court, who is present, Richard Miklic, to himself prepare the
presentence report for this case.
         Now, there has been a procedure followed in this
district for presentence reports, but I'm going to modify it
with respect to it as to that part of the report that deals
with victim impact statements, and so forth.  I believe that
that's been satisfied.  I've been in the courtroom during the
testimony here.  But, of course, all of this is subject to
interpretation by counsel and their views of it.
         I think that rather than the usual procedure that we
followed here, which I think is probably common to most
districts, where the probation officer prepares an
interpretation of the guidelines and the application to the
facts of the case -- of course, the probation officer here,
Chief Miklic, was not present during the trial.  We have the
transcripts.  But rather than approach it in that way, it seems
to me more appropriate for counsel to submit what amounts to
statements concerning the application of the guidelines.  And
there may well be, I suspect, disagreements about it.
         Perhaps we should set times for the filing of those
applications.  What do you think?
         MR. TIGAR:  Yes, your Honor.  May I consult with my
colleagues for a moment?
         THE COURT:  Well, of course.
    (Discussion off the record among counsel.)
         MR. TIGAR:  Your Honor, in discussing with
Mr. Thurschwell, we intend to present in addition to the legal
analysis some other materials.  I don't know what schedule the
Court has in mind for that.  If it's all to be done
simultaneously, your Honor, we would ask for the 23d of
February.
         THE COURT:  Okay.  Well, I'm not sure.  You know,
ultimately, there will be a sentence hearing, of course.
         MR. TIGAR:  Yes, your Honor.
         THE COURT:  And the sentence hearing will undoubtedly
consist of the legal issues that are involved, perhaps some
factual questions that may be involved in the application of
the guideline, will also involve the right of allocution, the
opportunity for exercising the right of allocution by the
defendant personally, and, of course, statements from counsel.
So it can be, you know, a hearing that could be in multiple
parts.  I don't know.  It may be something where we want to do
did it in segments, even, and consider the legal issues
separate than from whatever may be necessary for the other
aspects of it.
         But certainly the first part of it should be, I think,
the filing of your views, respective views on how the
guidelines may be applied.
         MR. TIGAR:  If that's the -- if it's limited to that,
your Honor, we could do that on the 9th.
         MR. MACKEY:  As could the United States, your Honor.
         THE COURT:  Yes.  Well, let's call, then, for the
simultaneous filing, February 9.  And then I will not set a
date for a sentencing hearing today, because I think that all
of us need to sort of take time to think about that; and the
nature of the hearing may depend upon what you submit and my
reaction to it on these statements of your positions on
application.
         MR. TIGAR:  Yes.  In addition, your Honor, there are
some other matters as to which there may be evidentiary
hearings necessary that have been the subject of motions.
         THE COURT:  Well, I think the best we can do is to say
the next step is these filings on February 9.
         MR. TIGAR:  Yes, your Honor.  We thank you, your
Honor.
         THE COURT:  All right.
         Counsel have anything else --
         MR. RYAN:  Can we have just a moment, your Honor?
         THE COURT:  -- to be taken up now?
    (Discussion off the record among counsel.)
         MR. MACKEY:  Your Honor, for purposes of the record,
we'd like to incorporate the position we took earlier at the
bench conference.
         THE COURT:  Oh, yes.  That's preserved.
         MR. MACKEY:  Beyond that, we have nothing else.  Thank
you, Judge.
         THE COURT:  So in this matter, we'll proceed and
without setting a new date for open court until I have a chance
to review what you file.
         And the Court will now be in recess.
    (Recess at 9:12 a.m.)
                    REPORTER'S CERTIFICATE
    I certify that the foregoing is a correct transcript from
the record of proceedings in the above-entitled matter.  Dated
at Denver, Colorado, this 7th day of January, 1998.
 

                                 _______________________________
                                         Paul Zuckerman
 

 

 

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