Newsreal: Judgment day for Terry Nichols

What were the strongest elements of the prosecution's case? They came down to a couple of pieces of paper and too many storage lockers. A receipt with McVeigh's fingerprint was found in Nichols' home in a place, quite frankly, where McVeigh couldn't have put it. That was driven home when Nichols' wife, Marife, helpfully told the prosecution that McVeigh had never even been in their Herington [Kan.] home, eliminating the "McVeigh framed him" defense. Nichols also had enough aliases to make up a whole baseball team. Ten aliases, and that's about 10 too many. It isn't just that they were phony names. The Mike Havens alias was used to purchase ammonium nitrate in large quantities. There's also storage lockers that were rented at very inopportune times. Marife Nichols leaves for the Philippines on Sept. 22, 1994, and on that same day McVeigh, posing as Sean Rivers, rents a storage locker in Herington. Eight days later is the first purchase of a ton of ammonium nitrate. This is followed by the quarry break-in, followed by Nichols using a pseudonym at a storage facility in Council Grove. The next day another ton of fertilizer is purchased. Then there's the so-called robbery of gun dealer Roger Moore, followed two days later by another Council Grove rental by Nichols, under yet another assumed name. Motel records show Nichols used names similar to Mike Havens pseudonyms all the time. You put all that together and you've got a real tough situation for the defense, even though when all these storage lockers or sheds were originally searched there was no sign of explosives residue. What about the defense? It put on a very good showing attacking many aspects of the prosecution's case. But why didn't they attack other aspects? Probably because they didn't have a way to do it. No one's ever explained, for example, how the ammonium nitrate receipt is in Nichols' home. Why is the quilt owned by the girlfriend of Roger Moore (the Arkansas gun enthusiast whom star prosecution witness Michael Fortier has said Nichols burgled to raise money for the bombing) in Nichols' home? The hardest thing to explain is why Nichols has Roger Moore's Florida safe deposit box key and his quilt. Although the people accusing Nichols of the robbery ain't too believable either. And anyway, it's not even necessarily connected, because unlike the theft of explosives, there's another possible motivation for Nichols to commit this crime without having been involved in the bombing -- and that's greed. How damaging was the testimony of Marife Nichols to the defense? It was quite damaging, for what she said and for what she didn't say. She tied down that McVeigh was never in their Herington home, she established that Nichols left quickly after getting a call from McVeigh on Easter Sunday, and she provided no alibi for him on April 18, the day of the Geary Lake scenario. She provided no explanation for all the aliases. Couldn't the defense have foreseen this? Sure. But somebody had to testify as to Nichols breaking off of his relationship with McVeigh. Someone had to testify that he packaged ammonium nitrate and sold it at gun shows for enormous profit, and not necessarily to bomb people. Somebody had to show the jury that this was a married man who had children and people out there who cared about him. Unfortunately, sometimes we have to make bad choices as lawyers. Using Marife Nichols to act as Terry Nichols' surrogate was one of them. What other bad choices did the lawyers make? Well, there was bad personnel choice. Several of the prosecutors were seemingly cowed by Michael Tigar (the lead defense attorney) and the judge's seeming lack of warmth for them. There were some witnesses who probably would have come off a lot better if other prosecutors had handled them. There were bad luck decisions for the defense. They could not present their case in chronological order because of witness problems. But that's about it. This is not a case in which major blunders were made. In fact, part of the reason that so many people said that calling Marife was a mistake was that to that point it appeared that nobody had done anything terribly wrong. There was no Chris Darden getting O.J. Simpson to try on the blood-stained gloves. How do you think it looks for Terry Nichols? He's going to get convicted of conspiracy because of the ammonium nitrate receipt and the lack of alibis and all that. The real question is, are they going to get him on any substantive counts, and that comes down to whether the jury can understand the concept of complicity -- that is, aiding and abetting a criminal act. For example, buying ammonium nitrate could be aiding and abetting as long as you knew what the ultimate objective was. But that's a little more complex, because the indictment talks about constructing a bomb of mass destruction and detonating it. And there is no evidence that works that Nichols mixed the bomb. So ...? He'll possibly be found guilty on the substantive counts. The odds are stacked against Nichols because of the number of deaths and because of the victim impact testimony. Still, he's got a much better chance than McVeigh of avoiding lethal injection. Do you think he'll avoid it? This is a man with two kids, a wife, who is portrayed, whether it's true or not, as someone who was basically pressured, cajoled, pushed, threatened by Tim McVeigh to go along with this bizarre and disgusting plan. You can so easily depict him as a sheepish follower that he has a decent chance of avoiding the death penalty. The problem is that 168 is an awful lot of deaths.

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