THE JURY SHALL DECIDE December 17, 1997 NewsHour Transcript

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The fate of alleged Oklahoma City bomber Terry Nichols rests in the hands of the jury. Phil Ponce reports.

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PHIL PONCE: The Denver jury held its first full day of deliberations today. Closing arguments were wrapped up yesterday in the federal trial against Terry Nichols, Timothy McVeigh's alleged co-conspirator in the 1995 bombing of the Oklahoma City federal building. For more on the trial we're joined by Tim Sullivan, senior Court TV correspondent; Jim Fleissner, professor at the Mercer University School of Law and a former federal prosecutor; and Dan Recht, immediate past president of the Colorado Criminal Defense Bar and a practicing attorney in Denver. Gentlemen, welcome all. Tim Sullivan, we heard earlier that the jury had requested a list of all the witnesses who had testified. Any more communications out of the jury room?

TIM SULLIVAN, Court TV: No, Phil. We haven't heard from the jury since that note came out this morning, and the judge did order that they receive a list of the 192 witnesses who testified in this trial. Those witnesses will be listed for the jury in chronological order of their appearance here. They've been deliberating now for about 10 hours between late yesterday and today, and we expect they should break in about a half hour.

PHIL PONCE: And when they break, they go home. This jury is not sequestered, correct?

TIM SULLIVAN: That's right, Phil. This jury is not sequestered, even though the jury in the Timothy McVeigh trial was. Judge Richard Matsch has not explained why he made a different decision here. What he told the jury yesterday was, "I trust you to follow my instructions, avoid the media, to avoid talking about this with anybody else, and I have no plans to sequester you. But if I see a need to do so at any point, I'll do it."

PHIL PONCE: Tim, give us a quick description of the closing arguments yesterday, emotional points on both the side of the prosecution and the side of the defense.

TIM SULLIVAN: Well, that's right, Phil. Yesterday the most emotional period came during the summation of Michael Tigar, the lead defense attorney for Terry Nichols. He was talking toward the end of his summation about Terry Nichols as a family man, Terry Nichols struggling to keep his family together, even though his wife several times left him to go back home to the Philippines. He talked about Nichols going to the Philippines to plead with her to come back. That kind of discussion brought Terry Nichols to tears. And then Michael Tigar, himself, talked about when he was a young lawyer going into the supreme court building and seeing the words "Equal Justice Under the Law" etched into the rotunda there, and he got choked up as he talked about how that principal sets the justice system in this nation apart. Michael Tigar was crying when he stood behind his client, Terry Nichols, at the defense table. He put one hand on each of Nichols' shoulders, and he said to the jury, "This is my brother, and he's in your hands." But Larry Mackey, the lead prosecutor, came back with a rebuttal argument that began just as strongly as Mr. Tigar finished. There was no break between the two. Larry Mackey got right up at the podium, and even as Michael Tigar and his client were trying to compose themselves at the defense table, Larry Mackey said to the jurors, "The people who were killed in the Murrah Building in Oklahoma City were your brothers and your sisters also. And the justice that they demand is no less in your hands."

PHIL PONCE: Dan Recht, is that unusual for a defense attorney to make such a personal kind of a connection with the defendant, the person that he or she is representing?

DAN RECHT, Defense Attorney: Not unusual. It's unusual to do it as effectively as Michael Tigar. And I think, having been sitting in the courtroom also, that it was done very effectively. The idea is this: I think Michael Tigar had the sense that through the course of the trial there were many of the jurors that have learned to trust him, to turn to him for the answers, and he was saying by that gesture to those jurors, look, you've learned to trust me, I trusted my client, hopefully--and the formula goes--you, you know--you trust in me, I trust in my client, therefore, hopefully, you'll trust in my client.

PHIL PONCE: And, Jim Fleissner, how would you assess what the key points were that the prosecution made throughout the trial and in closing arguments?

JIM FLEISSNER, Former Federal Prosecutor: Well, in closing argument, the prosecution was trying to show how all the pieces of their circumstantial case fit together on a time line so that it's compelling not just because each piece of evidence points at Terry Nichols but because it's almost incredible, impossible that all of those clues could align and point at Terry Nichols by coincidence. The centerpiece, which was emphasized in the closing arguments, of course, was the lengthy statement that Terry Nichols made to the FBI in which he told a number of lies and a number of implausible explanations. And I think that that centerpiece will be something that will weigh heavily on the jury.

PHIL PONCE: Overall, as a former prosecutor, yourself, what kind of--what kind of an assessment--what kind of a grade would you give the prosecutors in this trial?

JIM FLEISSNER: I think the prosecutors in this trial did a fine job, as they did in the trial of McVeigh. They had to put on some evidence, though, concerning the Arkansas robbery and the building of the bomb that sprung a few leaks frankly during the case. None of those leaks, I think, are going to sink the prosecution case, but they did have some rough spots in their presentation because of effective loitering by the defense.

PHIL PONCE: And the Arkansas robbery you're referring to--that's the allegation on the part of the prosecutors that a robbery was committed to help fund the activities of the defendants?

JIM FLEISSNER: That's right.

PHIL PONCE: Mr. Recht, how good was the defense at throwing dust on the prosecution's case?

DAN RECHT: You know, again, I think that Michael Tigar was very effective, and in his closing argument to the jury, he basically said, look, there's all of this circumstantial evidence. And if you look at it from a sinister view, yeah, you'll probably find my client guilty, but if you look at it with an innocent spin, then that's what, you know, our constitutional scheme tells you to do, presume this client, there is an innocent explanation for each thing. And so, in effect, he was telling this jury treat him like you would your brother or my brother and presume him innocent. And when you look at each little piece of evidence, look at it with that kind of spin, is there an innocent explanation? Now, I don't know, but Michael Tigar did a real nice job of portraying it in that fashion.

PHIL PONCE: Mr. Recht, just to follow up with you, is there a piece of--was there some testimony that the prosecution put on that you found particularly damaging to the defense?

DAN RECHT: Well, I'll tell you what I thought I found damaging to the defense, and it wasn't any particular piece of evidence. It's much like Jim was saying. They took all of these hundreds and hundreds of pieces of evidence that they had, sort of like a jigsaw puzzle laying on the table, and in their closing argument put them together piece by piece, painting a picture that made it look real--much like this Nichols was guilty of this crime and made a difficult job for Michael Tigar to get up and rebut it, so their closing argument was very good, and put the pieces together very well.

PHIL PONCE: Jim Fleissner, in this case the defense chose not to put the defendant on the stand. Is that--from the prosecution's standpoint, is that a helpful thing to the government's case?

JIM FLEISSNER: Oh, I think the prosecution would have loved to have Terry Nichols take the stand. That he didn't is not a remarkable development at all, as Dan will probably say. Defense lawyers frequently make the decision not to put the defendant on the stand for fear of what might happen. They can't control what's going to happen. And it tends to shift the emphasis of the trial and the credibility of the defendant, rather than the government's proof. And, besides, in his nine and a half hour interview with the FBI he basically denied his guilt, so although there were a lot of implausible explanations and lies that were in that statement, they essentially had his defense put before the jury through the vehicle of that statement.

PHIL PONCE: Tim Sullivan, you sat through all the testimony. Was there a difference--a significant difference in tone between this case and the case against the trial of Timothy McVeigh?

TIM SULLIVAN: Yes, Phil, it was very different in tone, and it was different on both sides. In the trial of Timothy McVeigh the tone of the prosecution's case was very much the impact of the crime on the victims, on the lives of the victims. They were extremely skillful in calling victim after victim and survivors from the bombing, spacing them out throughout their case. So you never went through it more than a day without a very emotional, compelling story from a survivor or somebody who lost a family member in the bombing. Those--those stories brought the entire courtroom to tears over and over again in the McVeigh trial. That didn't happen this time around. Michael Tigar and his team were successful in convincing the judge to limit the prosecutors to force them not to take these survivors into these long accounts of how this affected their lives, of the blood and gore and just terrible chaos that was seen at the Murrah Building. On the defense side the difference in tone was that the defense here was more aggressive than the defense in the Timothy McVeigh case. Of course, they had a lot more to work with. There was less evidence against Terry Nichols. It's entirely circumstantial evidence against Nichols, and the judge gave Michael Tigar and his team more room to maneuver than he gave Stephen Jones and the lawyers representing Timothy McVeigh. So it was a much broader defense and I think a more effective defense.

PHIL PONCE: Jim Fleissner, how about the issue of emotion, does it hurt the prosecution that the witnesses that they put on this time around were not quite as emotional regarding the--just the horror of what happened?

JIM FLEISSNER: Well, as a prosecutor, you're not really playing by the rules to play the emotion card too much. I mean, obviously, there is inherent in victim testimony a lot of emotion. But I think that the way it came out in the first trial, maybe it was the witnesses testifying for the first time, maybe it was the first time the story was being told but was much more emotional, it was hard for me even to read the transcripts some of the time. This trial, I think it was much more appropriate and fairer to the defendant in that that emotion was ratcheted down a bit.

PHIL PONCE: Dan Recht, as far as the issue of the defense counsel's demeanor in the court, Mr. Tigar, that he was more aggressive, is a more aggressive defense necessarily a better defense, or a good defense?

DAN RECHT: It's better if you do as Michael Tigar seemed to do, and that is first develop the trust of many of the jurors, so that they look to you as the voice of truth, of justice, for answering questions. Now I think Michael Tigar, as I said before, did that, and once you've done that, then, yes, you can be more aggressive, and it's effective.

PHIL PONCE: The judge, Dan Recht, allowed lesser charges in this case, but they weren't allowed in the Timothy McVeigh trial. This was a move by the defense, I take it, to give the jurors more options.

DAN RECHT: Absolutely. And it was a great victory for the defense because, of course, if he is convicted of second degree murder, second degree murder is not an offense punishable by the death penalty. So if the jury doesn't find him guilty of first degree murder and, instead, second degree murder or the other manslaughter, which they're also given as an alternative, it's really going to confuse the whole issue of whether he is subject to the death penalty. And that sort of begs the question of what's going on with the conspiracy charges. But to get those options in to the jury was a great defense victory, and we'll just have to see what happens.

PHIL PONCE: Jim Fleissner, why do you think it is that the judge went along with it in this case, where he didn't go along with it in the case against Timothy McVeigh?

JIM FLEISSNER: Well, you know, I don't know the answer to that question. And the reason I don't know is somewhat interesting in itself. And that is that the judge in this case has essentially held two trials; a public trial and a secret trial. And the secret trial has been all of the motions; the jury instruction conference, which is at issue here; and those things have been kept secret in part because the jury is not sequestered. And we won't really know until those transcripts are released exactly what's going on, but the point Dan made is very important, and that is the second degree murder and lesser included offense instructions only apply to eight of the eleven counts. They do not apply to the first three counts, and as Dan said, it's an open question what would happen even if the jury returned some second degree murder convictions.

PHIL PONCE: Dan Recht, in the very little time that we have left, do you see any advantage, strategic advance for the defense that the deliberations are happening during the holiday season?

DAN RECHT: Absolutely. I do. And let me address it quickly. I think jurors are much more careful--historically, they've been more careful in their sort of role in sitting in judgment over somebody else's life during the Christmas time, and I think that's for obvious reasons that have to do with sort of the Judeo Christian ethic. So, yes, I think that's a significant factor.

PHIL PONCE: Well, gentlemen, thank you all very much.

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