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Deadlocked: The Terry Nichols Trial

January 7, 1998 at 12:00 AM EDT

PHIL PONCE: Now joining us from Oklahoma City Governor Frank Keating and Oklahoma County District Attorney, Robert Macy. Gentlemen, thank you for joining us. Governor Keating, your reaction to the jury’s decision to let the judge handle it.

GOV. FRANK KEATING, (R) Oklahoma: Well, I was stunned and disappointed. I was stunned because the jury at least handled this matter up to the guilt or innocence phase. We didn’t agree with the result they found, but at least they accepted the responsibility to do that–but disappointed that they were not able to come together on the sentencing phase. It appeared that there were 12 different opinions. They basically dissolved, and failed in their responsibilities as a jury. I certainly support the jury system, but I do not support this jury.

PHIL PONCE: Governor Keating, we just heard from some of the relatives who were in Denver this morning. Would you say that they reflect the sentiment of most people in your state?

DAVID KEATING: Absolutely. The reality is those people sat just like the jury in Denver and listened to the evidence. There is no vendetta or vengeance here. These people–our friends and neighbors who lost their parents and their children–the 168 people who were killed–all of the relatives want to identify, try, convict, and execute those that created this mayhem, this agony in Oklahoma City. Nobody’s desirous of convicting an innocent person. In this case it was astonishing that Nichols could be found guilty of conspiracy, found guilty of involuntary manslaughter, and yet everybody basically thought that he shouldn’t be punished. That’s absolutely incredible.

PHIL PONCE: Governor Keating, there’s a possibility that Judge Matsch could sentence Terry Nichols, in effect, to a life term. Is that any comfort?

DAVID KEATING: It is comfort. As a matter of fact, the two sources of comfort we have tonight are, one, the fact that Judge Matsch, who is a moral, decent, intelligent, honorable man, who looked at the evidence, is in a position to sentence this individual to life in prison. And secondly, Bob Macy, our courageous district attorney here, has made it clear that he intends to try this individual in Oklahoma. That gives comfort to us as Oklahomans that the system can work.

PHIL PONCE: Mr. Macy, your reaction to what happened in federal court.

ROBERT MACY, Oklahoma County District Attorney: Well, this jury convicted Terry Nichols of conspiracy to commit the crime of the century–a horrible crime–the death of 168 people. Yet, when it came time to hand out the sentence, they stepped back and handed it off to the judge. Like the governor, I hope that this judge does take his responsibility very seriously. But he cannot hand down the sentence that should have been handed down. That could have only been done by the jury. They had the ability to hand down a death sentence; they had ability to hand down a sentence of life without parole; they elected to do neither, but to turn it over to the judge.

PHIL PONCE: And, Mr. Macy, your plans in state court.

ROBERT MACY: I have every intention of bringing both Nichols and McVeigh back to Oklahoma. I’ll file charges against each of them for 160 counts of first degree murder, put them on trial in front of an Oklahoma jury.

PHIL PONCE: And just a very basic legal question. Why is it that the Oklahoma prosecution would not constitute double jeopardy?

ROBERT MACY: Because you have two separate sovereignties involved: the sovereignty of the United States, the sovereignty of the state of Oklahoma. And they’re being brought–charges are being brought under different laws. The elements of the crimes that are being brought are different.

PHIL PONCE: Mr. Macy, you heard the jury forewoman talk about some of the concerns she had as to the quality of the case that the federal prosecutors brought. What are you going to be doing differently in Oklahoma City?

ROBERT MACY: Well, the first thing I’m going to be doing differently is taking a very close look at a jury. This lady would not have been allowed to sit on any of the sixty or more capital murder cases’ juries that I have selected. There are several things she said that should have been brought out on voir dire–her animosity towards the federal government, her animosity towards the FBI. These, plus some other things that she said, made it very clear that this is not someone who should be sitting on a death penalty jury.

PHIL PONCE: And just a quick clarification. The definition of voir dire, the term you used.

ROBERT MACY: Jury selection.

PHIL PONCE: One of the things that occurs to observers of this trial is the extent of resources. For example, if the federal government has resources to generate evidence, to track down witnesses, what resources does the state of Oklahoma have to try and do, in effect, what will be a better job?

ROBERT MACY: Well, it won’t take that much more because the investigation has been pretty well completed by the FBI and the federal agencies. And they’re in the process of turning all that information over to us at this time. We’ve estimated that we can try this case for less than $850,000. We’re confident we can do that. Our legislators make that money available to us, and the governor has approved it. So we feel very comfortable with financing we have available.

PHIL PONCE: She talked about some specific issues, though, for example, the fact that the FBI hadn’t tape recorded some conversations and that sort of thing. Are those kinds of issues of concern to you?

ROBERT MACY: Sure. They naturally concern me, and they are things that we’ll be talking about in our jury selection. There are things we will be talking about in our closing arguments, and so forth, to try to explain to–I mean, she accepted an awful lot of the things the defense said on face value, without ever really looking behind what really laid behind them.

PHIL PONCE: Governor Keating, to what extent do you think, as the day goes on and as the news spreads throughout your state, to what extent do you get the feeling that people feel that justice is simply not being done?

DAVID KEATING: Well, I think people felt that justice was being done in the McVeigh case. The government presented a very good case. Obviously, the government takes the evidence as it comes. You don’t have videotapes of everything. You don’t have confessions or direct evidence of everything. You can’t suborn perjury or perjure the testimony. You take it as it comes. And we felt that that was a fair case presented and a fair resolution. In this case I know that the evidence was not as strong. This individual did not light the fuse, but the evidence clearly suggested that this individual did conspire–the jury found that–participated in the background and the development of, as Mr. Macy said, the facts that led to the crime of the century, the agony, the mayhem that was around this city in April of 1995. We, obviously, want to see if anyone else was involved, and the government’s case is not inconsistent with that. We want to provide whatever resources are necessary to get to the bottom of any other unfinished allegations; but we are confident that the case that was presented by the government was sound; and we’re confident that, when presented to an Oklahoma jury, the facts will be viewed differently.

PHIL PONCE: Mr. Macy, one of the reasons that the federal trial was moved to Denver was because of concerns of a fair trial in Oklahoma. How will you address those concerns? Is that still an issue?

ROBERT MACY: Well, it will be an issue raised by the defense, I’m sure. For one thing, by the time we get to trial three years will have passed since the time of the bombing. There will not have been near–the public won’t have been exposed to near the media coverage that there was. Besides that, it wouldn’t surprise me if we end up being–having a change of venue to Lawton or to Tulsa or to someplace like that, which would remove it a little bit further. I don’t think we’ll have any trouble at all seating a jury in either Lawton or Tulsa or any other city outside of Oklahoma City. And we could probably seat one in Oklahoma City.

PHIL PONCE: But even in those cities you just mentioned, presumably, the publicity surrounding this trial has been pretty pervasive, yes?

ROBERT MACY: Yes, it has been, but, again, a fair juror doesn’t necessarily–that doesn’t necessarily mean they don’t know anything about the case. What it means is that they will agree they’ll try the case on the basis of the evidence they hear in the courtroom and disregard what they heard outside the courtroom. So I feel very comfortable we can pick a jury whatever forum we end up in.

PHIL PONCE: Governor Keating, how does a community, how does a state go through trial after trial after trial?

DAVID KEATING: Well, with a lot of patience, with a lot of prayers, with a lot of agony, and with a lot of difficulty. Let me say something in response to Bob Macy’s last comment. I went to Tulsa two weeks after the tragedy to a National Conference of Christians & Jews banquet. All of us in Oklahoma City were wearing our purple ribbons in mourning for those lost. There was not one ribbon on anybody’s chest in Tulsa; not that the people of Tulsa were not anguish-stricken and grief-stricken over what happened and angry at what happened, but it was as if something terrible happened in Houston, could a Dallas jury hear that case fairly–I think the clear answer is yes, and I think the clear answer here would be yes as well. The families want closure, but they also want justice. It is their view–it is my view that the case here against this second defendant is a case that deserves to result in a–at the very least–a life sentence–at the most appropriate level, the death penalty.

PHIL PONCE: Governor Keating, Mr. Macy, I thank you both.