A Fair Trial for Terry Nichols?

Listen: Wade Goodwyn Reports on the Opening of the Nichols Trial

Terry Nichols is led into court

hide captionTerry Nichols, top, is led into court in McAlester, Okla., for a pre-trial hearing and jury selection in his state murder trial, March 1, 2004.

© Irwin Thompson/Dallas Morning News/Corbis

The state trial of Oklahoma City bombing conspirator Terry Nichols is under way in McAlester, a small town in eastern Oklahoma. Notice that I didn't use the words "accused" or "suspected" or "alleged." Normally at this stage of the legal proceedings those words would be sprinkled liberally throughout my copy whenever I wrote about the defendant or about what "law enforcement authorities said" he did. The reason NPR reporters use those words is because we have lawyers and editors who insist.

But not with this trial. I can write, "Terry Nichols, who conspired with Timothy McVeigh to blow up the federal building in Oklahoma City in 1995" with impunity. I can write about how the day before the bombing, on April 18, Nichols helped McVeigh pour jet fuel and fertilizer into dozens of 50-gallon blue barrels. They wrapped them, three by three, with detonating cord into little triangles of death packed tightly in the back of a Ryder Rental truck. And I am free to write that McVeigh and Nichols are American terrorists whose despicable crime horrified a nation. That's because in Denver in 1997, a federal jury convicted Nichols of conspiracy and second-degree murder. And with that, I am free of the necessity of "alleged," "accused" and "suspected" in my otherwise pithy prose.

So how, exactly, are 12 Oklahomans supposed to sit down in a jury box on the first day of trial and start their day "presuming" Terry Nichols is innocent? You'd be hard put to be more infamous than this guy is in Oklahoma. A jury of his peers has already found him guilty of the crimes of which is accused. He is currently serving a life sentence for those crimes. How is this not double jeopardy, trying Nichols twice for the exact same crime?

The technical answer is that the federal government prosecuted McVeigh and Nichols only for the deaths of the eight federal law enforcement officers present in the building when it blew up. That left 160 civilian murders for Oklahoma authorities to prosecute. This was all worked out before indictments were issued.

In truth, this Oklahoma trial is all about the death penalty. Terry Nichols wasn't sentenced to death the first time around. That's because the government could not tie Nichols closely enough to the actual crime. He wasn't in the Ryder truck on that sunny April 19 morning in Oklahoma.

Furthermore, federal prosecutors didn't have definitive evidence that placed Nichols at Geary Lake State Park in Kansas, where they say the truck bomb was built. Some fishermen saw something that day — a Ryder truck, several men moving around — but no witnesses could identify anybody. Prosecutors strongly suggested to the jury that Nichols was there helping McVeigh, but they couldn't prove it. They were, however, able to tie Nichols very closely to Timothy McVeigh and certain aspects of his plot. That was enough for a second-degree murder conviction and another conviction of "conspiracy to commit a terrorist act." The latter conviction enabled the federal judge to sentence Nichols to life without parole.

There is little surprise then, that prospective jurors in the pool for Nichols' state trial in McAlester, Okla., reported overhearing their colleagues confide to each other that they were going to lie to the judge in order to be picked to serve on the jury. Why? To make sure that Terry Nichols gets a death sentence. Any pretense that Nichols can get a fair trail in Oklahoma is fragile indeed. Nine years ago U.S. District Court Judge Richard Matsch quickly dismissed that as a possibility and moved their trials to Colorado. His decision came as no surprise. It was going to be difficult for McVeigh and Nichols to find a jury that wasn't poisoned by pre-trial publicity anywhere in the nation, in Oklahoma simply impossible.

If and when Terry Nichols is convicted by state authorities in Oklahoma, it will again be the federal courts who ultimately decide if he got a fair trial the second time around.

NPR's Wade Goodwyn reports on national affairs in Texas, Louisiana and the Southwest. He has been reporting for NPR since 1991.

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