T A B L E+T A L K Is Terry Nichols toast? Join the debate in Headlines. D A I L Y+Q U O T E Mother from the grave R E C E N T L Y The white negro By Joan Walsh Governor Moonbeam is back. And he has black Oakland's vote (12/15/97) Still in the balance By Mark Hertsgaard The global warming treaty may save Al Gore, but what about the rest of us? (12/12/97) The graveyards of hope By Jonathan Broder Why it took us so long to believe that the new "great hope" of Africa may be responsible for terrible massacres (12/11/97) Not ready By Jeff Stein "We're not going to have a Desert Storm here. We're going to have a chemical or biological Oklahoma City" (12/10/97) Bring back J. Edgar Hoover By Jonathan Broder As far as the Clinton administration is concerned, anyone would be better than Louis Freeh, even a cross-dresser in pumps (12/09/97) - - - - - - - - - - - - - - - - Browse the Newsreal Archives - - - - - - - - - - - - - - - -
		J U D G M E N T_D A Y_F O R __________ terry nichols __________A DEFENSE ATTORNEY SAYS IT LOOKS LIKE __________TIMOTHY MCVEIGH'S ALLEGED CO-CONSPIRATOR __________WILL BE FOUND GUILTY, BUT HAS A DECENT __________CHANCE OF ESCAPING THE DEATH PENALTY. BY ROS DAVIDSON | The fate of Terry Nichols will soon be in the hands of the jury. The conventional wisdom, before the trial began on Sept. 29, was that the case against Nichols was weaker than the one against convicted Oklahoma City bomber Timothy McVeigh. After 98 prosecution witnesses and 92 defense witnesses, will the jury see it that way? Salon spoke with Scott Robinson, a Denver defense attorney who has been writing a column about the trial for the Rocky Mountain News. How strong was the prosecution case against Nichols? It was a potpourri of evidence, which I think the prosecution presented with mixed success. Some of the elements were proved pretty definitively and are very important to the prosecution's case. Some of the elements were not even close to being proven beyond reasonable doubt. What were the key elements of the prosecution case? There were basically six major prosecution contentions connecting Nichols to the bombing. One was the break-in at a quarry in Marion, Kan., from which Tovex explosive, blasting caps and detonating cord were taken. Second was the robbery of gun collector Roger Moore in Arkansas. The third was the purchase of two tons of ammonium nitrate fertilizer from a farm co-op in McPherson, Kan. A fourth would be Nichols driving McVeigh from Oklahoma City to Junction City on Easter Sunday. Fifth, that Nichols helped build the bomb at Geary Lake (State Park). And finally, that he did a bunch of other stuff including making phone calls to get plastic barrels for the explosives. What was the weakest? The Geary Lake evidence. I don't think the prosecution came close to convincing the jury that Nichols personally helped McVeigh mix the bomb on the morning of April 18, the day before the bombing. For good reason. There wasn't enough time. There was too much to do. There were too many other sightings of Ryder trucks, it just wasn't compelling evidence. Why is that so important? Because if Nichols can't be shown to have been involved in mixing the bomb, the other incriminating activities of Nichols could be explained away as being done unknowingly or without recognizing the probable intent of McVeigh. But in federal conspiracy cases, the defendant need not know the intent of the conspiracy to be liable. You can't mix a bomb innocently. But you can place telephone calls innocently to plastic barrel manufacturers or to racing fuel people. You could even buy a ton of ammonium nitrate fertilizer. You can explain that away innocently. You can explain the use of aliases to a certain extent. That's why April 18th was so important, and that's where the prosecution came up a little short. That doesn't mean they won't get a conviction, but it's also important because if there is a conviction, lack of personal involvement in making the bomb will be a major statutory and case-law factor in whether the death penalty can be imposed. Why? Under the applicable federal law, if the jury finds Nichols guilty, they then consider a number of statutory aggravating and mitigating factors. Mitigating factors include that the individual played a relatively minor role in the whole crime, and that others who were equally or more culpable do not face the death penalty. So if someone else other than Nichols mixed the bomb with McVeigh and those people have never even been arrested, that's a statutory mitigator. There's also case law from the Supreme Court indicating that, while having deliberate indifference to the value of human life is enough of an intent requirement, you cannot impose the death penalty if the individual's participation in the overall crime is relatively minor compared to others. So jurors would have to believe Nichols was McVeigh's right-hand man? The key thing is that he be shown to be something other than a minor participant. The longer that Nichols is actively and knowingly involved in the conspiracy, the more chance of that. So if he can cut off his involvement with McVeigh on the morning of the 18th when he loaned him a truck, or perhaps on the 16th when he drove him from Oklahoma City to Junction City, well, that would help Nichols at sentencing. N E X T+P A G E+| What could sink Nichols