The Oklahoma City Bombing Trial Transcripts
Terry Nichols
Friday, January 2, 1998 (morning)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal Action No. 96-CR-68
UNITED STATES OF AMERICA,
Plaintiff,
vs.
TERRY LYNN NICHOLS,
Defendant.
REPORTER'S TRANSCRIPT
(Trial to Jury: Volume 151)
Proceedings before the HONORABLE RICHARD P. MATSCH,
Judge, United States District Court for the District of
Colorado, commencing at 8:30 a.m., on the 2d day of January,
1998, in Courtroom C-204, United States Courthouse, Denver,
Colorado.
Proceeding Recorded by Mechanical Stenography, Transcription
Produced via Computer by Paul Zuckerman, 1929 Stout Street,
P.O. Box 3563, Denver, Colorado, 80294, (303) 629-9285
APPEARANCES
PATRICK RYAN, United States Attorney for the Western
District of Oklahoma, and RANDAL SENGEL, Assistant U.S.
Attorney for the Western District of Oklahoma, 210 West Park
Avenue, Suite 400, Oklahoma City, Oklahoma, 73102, appearing
for the plaintiff.
LARRY MACKEY, SEAN CONNELLY, BETH WILKINSON, GEOFFREY
MEARNS, JAMIE ORENSTEIN, and AITAN GOELMAN, Special Attorneys
to the U.S. Attorney General, 1961 Stout Street, Suite 1200,
Denver, Colorado, 80294, appearing for the plaintiff.
MICHAEL TIGAR, RONALD WOODS, ADAM THURSCHWELL, REID
NEUREITER, and JANE TIGAR, Attorneys at Law, 1120 Lincoln
Street, Suite 1308, Denver, Colorado, 80203, appearing for
Defendant Nichols.
* * * * *
PROCEEDINGS
(In open court at 8:30 a.m.)
THE COURT: Be seated, please. Good morning.
Mr. Tigar, you have a motion?
MR. TIGAR: Yes, your Honor.
DEFENDANT'S MOTION TO TERMINATE PENALTY PHASE
DEFENDANT'S ARGUMENT
At this time, your Honor, the Government, having
concluded its evidence -- we move to terminate the penalty or
sentencing phase of this proceeding. There is no precise
authority in Rule 29 for this; however, the statute
contemplates that the Government has a certain burden of proof,
a three-stage burden, and that two of those three burdens must
be met beyond a reasonable doubt before anyone gets to
weighing.
Under the Eighth Amendment, as well as what we can
glean from the statute, the Court has not only the power but,
we would respectfully suggest, the duty to make sure that were
the jury to return a verdict directing that Mr. Nichols' life
be taken that that verdict be one that would be consistent with
the statute and the Eighth Amendment.
In that context, we suggest that the Court's prior
opinion indicates that the Court has the same discretion with
respect to this as it has with respect to the admission and
exclusion of information; that is to say, one is not bound
strictly by the Rule 29 standard, but the Court would look at
the entire situation and ask whether or not the Eighth
Amendment and statutory standards are satisfied.
Second, your Honor, this is a weighing statute. The
Government convinced the Court to strike from the indictment
the allegations of intent to kill. In a weighing statute, the
important decisions about death worthiness are made at the
second stage, and that is the characteristic of such a statute,
as distinct from one that narrows at the so-called "guilt
phase."
In this proceeding, we have seen 55 witnesses. By the
Government's own count, that is a dozen more than testified in
the McVeigh case. That cannot be because Mr. Nichols was
convicted of more serious crimes, because in fact he was
acquitted of 10 of the 11 capital counts that were charged
against him and on eight of those counts also acquitted of the
lesser-included offense of second-degree murder.
The only non-impact witness presented was Mr. Dilly,
and your Honor will recall that the effort to turn Mr. Dilly's
nearly 10-year-old observations into something came a cropper.
And I don't need to remind the Court about what the
cross-examination was there.
What has the Government done instead, your Honor? On
Tuesday, we came to the bench at the end of the day and
suggested that the testimony elicited had gone far beyond what
the Eighth Amendment permitted and indeed beyond what the
Court's orders were. The Court made certain comments at the
bench at that time. On the morning of Wednesday, we received a
promise in the form of a letter from the Government's lead
counsel that this would not happen again.
Then, of course, the Court will recall the testimony
of Mrs. Treanor. We have filed this morning a motion revealing
that exactly the same kind of thing happened in the McVeigh
case, leading Time magazine to say that the Court might as well
have tried to adjudicate a monsoon. We have shown that the day
after that performance in the McVeigh case, Mrs. Treanor went
on the "Today" show and said that she knew that she had caused
everyone to cry: "I looked around, and everyone's eyes were
red-rimmed."
We also recall the testimony of Ms. Ice, whose brother
was the victim of an involuntarily manslaughter, who glared at
the jurors and raised her voice and glared at Mr. Nichols.
Extraordinary precautions have been taken, your Honor,
to shield these jurors from improper influence. The Court has
had a van to bring them to and from court. I am told that the
van means that no one can see them coming and going, not the
media, not anyone.
Were someone to go to a juror's home and shout
invective at jurors, were someone to glare at jurors and shout
invective at them on their way to court, were someone to
telephone them in the night and do that, were the defendant to
confront the jurors in the courtroom and hurl invective at
them, the Court would know how to characterize such conduct and
in the case of a defendant could deprive him under Illinois vs.
Allen of the right to remain in the proceedings.
We take extraordinary precautions, and the Court has,
to shield jurors from precisely those sorts of influences; and
yet without any restraint by the prosecution and knowing full
well, as the prosecutors must, of the risks that were involved,
the prosecutors decided to make that the centerpiece of the 54
witnesses that they called to you.
Right after Mrs. Treanor was done, your Honor, a
person in the audience who we believe to be her sister, who
customarily has been seated near Ms. McDonnell, Mr. Nichols'
sister, said, "I hope they go through hell with that." This
same person had already said, loud enough for Ms. McDonnell to
hear, "Did you hear about the guy they executed? Something
went wrong, so he fried. Do you think we'll get to do that
with this guy?"
Another witness, your Honor, an employee of the
judicial branch, assaulted the jurors with a vision designed to
summon up a call for vengeance.
I raise these things, your Honor, because whatever one
calls this motion -- a Rule 29, an Eighth Amendment, or a
mistrial -- we respectfully suggest that no verdict to take
Mr. Nichols' life would be consistent with the statute and the
Eighth Amendment.
I've been doing this for 32 years. I have been in
Versailles when the Vichy collaborators were tried. I've been
in South Africa alongside my comrades in the apartheid days, as
they were tried. I have seen trials in revolutionary Cuba.
I've tried a case in a little Florida courthouse where we
worried that the deputy wouldn't protect our client from the
danger of being lynched. But I've never seen anything like
this.
I don't think that my words, your Honor, at the end of
the case would be enough, and I respectfully suggest that
despite the Court's efforts by instructions that the Court's
words would not be enough, to guide this jury from the shoals
of vengeance to the safe harbor of reason.
And for that reason, your Honor, we respectfully
request that the Court exercise the power given to it under
Article III to say to the executive branch, as has often been
the duty of Article III judges, beginning with Chief Justice
Marshall on circuit in the treason trial of Aaron Burr: This
is enough and you can't do that. And we move that the
proceedings be terminated now and the Court sentence under the
guidelines.
RULING
THE COURT: Well, I'm going to deny the motion and
rely on the jury.
Now, do we have other matters to take up before -- we
told the jury we'd start at 9 this morning; but they're here,
so we can start earlier.
MR. MACKEY: Yes, your Honor. If the Court pleases,
we have some objections to exhibits that have been noticed by
the defense. I can provide those to you and --
THE COURT: All right. Well, you may approach on
that.
(At the bench:)
(Bench Conference 151B1 is not herein transcribed by court
order. It is transcribed as a separate sealed transcript.)
(In open court:)
THE COURT: Well, I think counsel can use a little
time before 9, so we'll recess till 9.
(Recess at 8:44 a.m.)
(Reconvened at 9:00 a.m.)
THE COURT: Please be seated.
(Jury in at 9:01 a.m.)
THE COURT: Members of the jury, good morning.
We are ready to proceed now to hear and see
information provided by the defense, so we'll call for the
first witness.
MR. THURSCHWELL: Your Honor, we call Marife Nichols.
THE COURT: All right. She's being re-called under --
MR. TIGAR: Re-called, your Honor.
THE COURT: Ms. Nichols, if you'll resume the stand
under the oath you took with us earlier in this case. Please
be seated.
(Marife Nichols was re-called.)
DIRECT EXAMINATION
BY MR. TIGAR:
Q. Good morning, Mrs. Nichols.
A. Good morning.
Q. You are the wife of Terry Nichols; is that right?
A. Yes.
Q. I want to ask you about some events that -- that began in
Marife Nichols - Direct
June of 1995. That's the time period that we're going to be
talking about up to the present. Now, in June of 1995, did you
leave the United States and go to the Philippines?
A. Yes, I did.
Q. And who went with you?
A. My daughter, Nicole.
Q. Okay. And did you come back to the United States then
during the summer of 1995?
A. August.
Q. Yes. And during the time that -- and when you came back,
where was Terry?
A. He is in El Reno.
Q. And what is El Reno?
A. It's the prison.
Q. Now, did you get a chance to visit him in El Reno?
A. Yes. We did.
Q. Did Nicole get a chance to visit, also?
A. Yes.
Q. Now, were -- was the visit that you had with a glass
between you?
A. Yes.
Q. Okay. Now, did you -- did he get a chance to hold Nicole
in that visit?
A. One of the legal team asked the guards if -- if he could
hold his kid, and the guards let him.
Marife Nichols - Direct
Q. Now, did you then return to the Philippines?
A. Yes.
Q. Were you pregnant with -- were you pregnant at the time?
A. Yes, I was.
Q. Okay. Now, during the time that you were in the
Philippines, did Terry write to you?
A. Yes. He write to me once a week.
Q. And did -- was he able to telephone you?
A. No. Because we don't have a phone in the house. We have
the neighbors' phone that is where the legal team can call me,
but Terry cannot call there collect, so --
Q. And in his -- in the letters that he sent you, did he talk
about your pregnancy and how you were doing and how Nicole was
doing?
A. Yes. He was very concerned about Nicole and me. He was
advising me to eat some good food, which is -- he always does.
And he was concerned about Nicole's health. And I traveled
from Cebu to Pilar Island most of the time, so --
Q. And in connection with your pregnancy, now, where was your
next child born? In the Philippines?
A. Yes. Christian was born in the Philippines.
Q. And Christian is the name -- when was Christian born?
A. December 15 of '95.
Q. Now, did Terry in his letters give you some advice about
your pregnancy with Christian?
Marife Nichols - Direct
A. Yes. He did.
Q. What did he tell you?
A. He advised me since -- ever since I delivered Nicole and my
oldest son through natural childbirth, Lamaze -- is that what
you call it here? He advised me to -- he sent a letter to
Donna Carino, which was my midwife when I was pregnant of
Nicole, and asked if I could -- if she could assist me in my
childbirth. And Donna Carino sent him the letter that she --
she would love to, and she send me a letter, too, to invite me
to come over -- come back in Michigan and live with her through
the pregnancy and that she will assist me in my labor.
Q. Now, did Terry also at this time -- during this time try to
provide for you financially?
A. Yes. He --
Q. What --
A. He asked his mother for some money for me every month. And
he did send his money in prison, too, to me.
Q. How did that work, as you understood it?
A. It's a commissary money that he have.
Q. And he sent that to you?
A. Yes. He sent that to me, too.
Q. All right. Now, did there come a time when you decided to
move back to the United States -- to come back to the United
States?
A. Yes.
Marife Nichols - Direct
Q. When was that?
A. Late June of '96.
Q. And have you been living in the Denver area ever since
then?
A. Yes.
Q. And since you've been living in the Denver area, have you
and the children been able to see Terry?
A. Yes.
Q. How often are you able to see him now?
A. Once a week.
Q. And how -- tell the jury what -- what are those visits
like? Is he able to -- to play with the kids?
A. Now he's able to hold and play with the kids and -- and
help me in somehow discipline them and change Christian's
diaper. I used to tease about that to him.
Q. Now, in addition to that, is he able to talk to you on the
telephone now?
A. Yes. Every night, he calls.
Q. I'm going to show you --
MR. TIGAR: If I can approach, your Honor?
THE COURT: Yes.
BY MR. TIGAR:
Q. I'd just like you to look through these pictures and just
say the number and what the picture shows.
MR. TIGAR: Your Honor, I would like to offer at this
Marife Nichols - Direct
time M690, M691, M692, M694, M695, M696, M697.
MR. RYAN: If I may have just a moment, your Honor?
THE COURT: Yes.
MR. RYAN: No objection.
THE COURT: They are received.
BY MR. TIGAR:
Q. Now, could you just leaf through those and give the number
and just tell what it is.
MR. TIGAR: Your Honor, under the Court's order, we
are not going to display these publicly because they are
pictures of the children, but the jury will have them.
THE COURT: All right. And I will explain that to the
members of the jury.
You will, of course, have the exhibits before you when
you deliberate in this matter, just as you did previously when
you deliberated after the trial. And I'm not going to publish
these exhibits in the courtroom or otherwise because they are
photographs dealing with the children, and the children have
some rights of privacy.
You may proceed.
BY MR. TIGAR:
Q. What is No. M690?
A. This is a picture of me and Christian and Nicole.
Q. Okay. What is the next one then?
A. The next one, M691.
Marife Nichols - Direct
Q. Yes.
A. This is a picture of Josh and Nicole and Christian.
Q. Now, where was that taken? In Denver?
A. In Denver, yes.
Q. Does Josh get to play with his half brother and half sister
when he's here in Denver?
A. Yes.
Q. And is he able to see Terry, also?
A. Yes.
Q. What's the next one?
A. This is a picture of me and Christian.
Q. Okay. When was that taken?
A. Summer of '96.
Q. Okay. And the next one? What's the number of it?
A. M694. Oh. It's a picture of Christian.
Q. Okay. And about when was that taken?
A. I -- it's the winter of '96.
Q. And the next one, the number?
A. M695. This is a picture of me and Nicole and Christian and
Terry.
Q. Where was that taken?
A. In the prison.
Q. Okay. What's the next number?
A. It's a -- M696.
Q. Okay.
Marife Nichols - Direct
A. It's a picture of Nicole writing his -- her ABCs and Terry
and Christian -- Terry is made those flashcards with ABCs in it
for Nicole to learn.
Q. Where was that taken?
A. In the prison.
Q. Okay. M697.
A. Picture of Nicole and Christian and Terry. Terry was
holding both of them.
Q. Okay. And where was that taken?
A. In the prison.
Q. Now, you mentioned some flashcards. How old is Nicole now?
A. She's four years old now.
Q. Does she go to school?
A. Yes. She goes to the Jewish Community Center.
Q. Now, you mentioned some flashcards. I'm going to show you
now what I've marked as Defendant's M258. Are those the
flashcards that Terry made?
A. Yes. These are the flashcards that Terry made for Nicole.
MR. TIGAR: All right. We offer them, your Honor.
M258.
MR. RYAN: No objection.
THE COURT: Received.
BY MR. TIGAR:
Q. Now, I'm going to put these up. Where did Terry make
these?
Marife Nichols - Direct
A. In the prison.
Q. Okay. And what are they made out of?
A. File folders.
Q. Okay. There it says "flashcards." On the back, we can see
28 cards, the ABCs, and there's the file-folder label. And in
the picture that you showed us, is he working with the
flashcards with Nicole and Christian?
A. Yes.
Q. Okay. And here's one. That's the A. And then -- whoops.
And on the back --
A. Apple.
Q. -- apple. And the B. On the back is the bunny?
A. Bunny.
Q. And does it then go all through the alphabet?
A. Yes.
Q. And did -- did Terry draw all the pictures and -- and do
the whole thing?
A. Yes, he did.
Q. Then that's the label there for Nicole and Christian;
right?
A. Yes.
Q. Now, in addition to making these items, did Terry also make
cards to send?
A. Yes, he did.
Q. Okay. I'm going to show you now what I've marked as M298,
Marife Nichols - Direct
which is dated 13 March 1997. For you. Is that a card that he
made for you?
A. Yes. That's a card that he made for me.
MR. TIGAR: We offer M289, your Honor -- excuse me.
M298.
MR. RYAN: No objection.
THE COURT: All right. Received. May be shown.
BY MR. TIGAR:
Q. Now, I'm going to put this up. This is a card with a note
and so on. But what's it made of?
A. It's made of file folders.
Q. File folders?
A. Yes. And he uses toothpaste to paste it.
Q. Okay. And the envelope, is that -- is that a regular
envelope you can buy in the store, or is that a handmade
envelope?
A. That's a handmade envelope, too.
Q. And the white we can see here, the paste, what does he use
to paste that with?
A. Toothpaste.
Q. I'm going to show you now what I've marked as M299, which
is a copy. Did Terry make that?
A. Yes, he did.
Q. Do you know about when he made that?
A. April of '96. I think this is the Easter.
Marife Nichols - Direct
Q. And who did he make it for?
A. For Nicole and Christian.
MR. TIGAR: We offer M299, your Honor.
MR. RYAN: No objection, your Honor.
THE COURT: Received. May be shown.
BY MR. TIGAR:
Q. That's a picture that Terry drew?
A. Yes.
Q. I'm going to show you what I have marked as Defendant's
M300, which is a card dated March 30, 1997. Did Terry make
that for you?
A. Yes.
MR. TIGAR: We offer M300, your Honor.
MR. RYAN: No objection, your Honor.
THE COURT: Received. May be shown.
BY MR. TIGAR:
Q. That's an Easter card again made out of file folders?
A. Yes.
MR. TIGAR: Your Honor, I have a number of these
cards. If I could approach, we could -- we could put them all
in a group.
THE COURT: All right.
BY MR. TIGAR:
Q. Let me show you first -- why don't you read through each
one and briefly --
Marife Nichols - Direct
MR. TIGAR: Let me do it this way to save time. We
offer M301, M303, M304, M306, M308, M309, and that's it, your
Honor.
MR. RYAN: No objection to any of those, your Honor.
THE COURT: All right. They are received.
BY MR. TIGAR:
Q. Mrs. Nichols, could you just leaf through those and just
tell the jury briefly what each one of them is.
A. M301, it's a card for me that Terry made -- made. It's --
a welcome-back card. When I went to Philippines.
Q. And is it made in the same way as the other ones?
A. Yes.
Q. Okay. All right. The next one.
A. M303. He made a card for Nicole, "Daddy's little angel."
M304, he made me a card. I think this is a
Valentine's card. It says he loves me.
M306, he made a -- what do you call it? Kootchie -- I
don't know -- how do you call it in English?
Q. A cooty-catcher?
A. A cooty-catcher.
Q. Is that folded paper with numbers on it for kids to use?
A. Yes.
Q. Okay.
A. M308, he made a card for Nicole, "You are my sweetheart
Valentine."
Marife Nichols - Direct
M309, he made a card for Christian to say hello and
put numbers and ABCs in it.
Q. And so -- and during the time that you've been in Denver,
have you -- has the family been able to be together with Terry
and the kids at least once a week?
A. Yes.
Q. And has he continued as a father to try to work with them
and teach them and have as normal a family life as possible?
A. Yes, he did.
MR. TIGAR: No further questions, your Honor.
THE COURT: All right. Do you have any questions?
Proceed.
MR. RYAN: Thank you, your Honor.
CROSS-EXAMINATION
BY MR. RYAN:
Q. Good morning, Mrs. Nichols.
A. Good morning.
Q. Now, you have told the jury about a number of things that
Mr. Nichols has prepared; is that correct?
A. Has made, yes.
Q. These are flashcards and notes to you and notes to the
children?
A. Cards for the children, yes.
Q. All of these cards, all of these notes, all of these
materials have all been made since Terry Nichols has been in
Marife Nichols - Cross
prison?
A. That's right.
Q. All have been made while Terry Nichols knew he was facing
these charges?
MR. TIGAR: Objection, your Honor.
THE COURT: Sustained as to what he knew.
BY MR. RYAN:
Q. All of these materials were made while Terry Nichols was
pending charges in this case?
MR. TIGAR: Objection, your Honor.
THE COURT: Overruled.
BY MR. RYAN:
Q. Did Terry Nichols ever prepare any flashcards before he was
arrested in this case? For Jason, or for Nicole?
A. He never made one, but he bought one.
Q. Did Terry Nichols ever prepare and make a Valentine's card
for you and send it to you in the Philippines in February of
1995?
A. He prepared -- I'm sorry.
Q. Did he ever hand-make a Valentine's card for you and send
it to the Philippines?
A. On '95?
Q. Yes. Before the bombing.
A. I think he bought some.
Q. Did you bring it with you?
Marife Nichols - Cross
A. Some were in my apartment.
Q. Did he make you an Easter card on April 16th, three days
before the bombing?
A. No. He didn't because we were together.
MR. RYAN: That's all I have, your Honor.
THE COURT: Any redirect?
MR. TIGAR: We have no questions.
THE COURT: All right. You may step down.
MR. TIGAR: Thank you, Mrs. Nichols.
THE WITNESS: Thank you, your Honor.
THE COURT: Next witness.
MR. THURSCHWELL: Call Suzanne McDonnell.
THE COURT: Thank you.
THE COURTROOM DEPUTY: Would you raise your right
hand, please.
(Suzanne McDonnell affirmed.)
THE COURTROOM DEPUTY: Would you have a seat, please.
Would you state your full name for the record and spell your
last name.
THE WITNESS: Suzanne Marie McDonnell,
M-C-D-O-N-N-E-L-L.
THE COURTROOM DEPUTY: Thank you.
THE COURT: Mr. Thurschwell.
DIRECT EXAMINATION
BY MR. THURSCHWELL:
Suzanne McDonnell - Direct
Q. Good morning, Mrs. McDonnell.
A. Good morning.
Q. Mrs. McDonnell, what's your relationship to Terry Nichols?
A. I'm his sister.
Q. And how many other siblings do the two of you have?
A. Two other brothers.
Q. I want to show you --
MR. THURSCHWELL: Show the witness what's been marked
as Defense Exhibit M66.
BY MR. THURSCHWELL:
Q. Can you identify the people in that photograph?
A. Yes, I can.
Q. Who -- who are they?
A. There's myself and two of my brothers and actually one of
my cousins.
MR. THURSCHWELL: Okay. We move the -- we move M66,
your Honor.
MR. MEARNS: No objection, your Honor.
THE COURT: Received. Maybe be shown.
BY MR. THURSCHWELL:
Q. Can you identify the people for the jury, starting from the
left.
A. The little girl is myself, and then it's Terry there and my
cousin Dale and then my brother James.
Q. Now, Mrs. McDonnell, where do you presently live?
Suzanne McDonnell - Direct
A. I live in Holly, Michigan.
Q. And where is that in relation to Detroit?
A. To -- it's north of Detroit an hour, hour and a half.
Q. Okay. Where did you grow up?
A. In Lapeer, Michigan.
Q. And where is Lapeer, Michigan, in relation to Detroit?
A. It's a good hour and a half north of La -- more straight of
Detroit than Holly is.
Q. Straight north?
A. Yeah.
Q. Is -- is it in the area of Michigan known as the Thumb?
A. Basically, yeah.
Q. Now, let me turn to your parents. Before I do that, are
you currently employed?
A. No.
Q. No. Who -- what was your father's name? What is your
father's name?
A. Robert Nichols.
Q. I want to show you what's been marked as Defense Exhibit
M69. Can you identify the individuals in this photograph?
A. Yes, I can.
Q. Who are they?
A. In front there is my brother James. To the left --
THE COURT: Well --
MR. THURSCHWELL: We move the exhibit -- move M69.
Suzanne McDonnell - Direct
MR. MEARNS: No objection.
THE COURT: Received. Now it may be shown, and you
may proceed to identify who's in it.
MR. THURSCHWELL: Thank you, your Honor.
THE WITNESS: Up front is my brother James, and then
to the left is Terry, and my father is sitting in the chair and
myself behind them all.
BY MR. THURSCHWELL:
Q. Now -- and what is your mother's name?
A. Joyce Nic -- Joyce Wilt.
Q. Are your parents divorced?
A. Yes, they are.
Q. Did she remarry?
A. Correct.
MR. THURSCHWELL: Okay. I want to show the witness
what's been marked as Defense M70.
BY MR. THURSCHWELL:
Q. Mrs. McDonnell, do you recognize the individuals in this
photograph?
A. Yes, I do.
MR. THURSCHWELL: We move the admission of M70.
MR. MEARNS: No objection.
THE COURT: Received. May be shown.
BY MR. THURSCHWELL:
Q. And can you tell the jury who we see in this photograph.
Suzanne McDonnell - Direct
A. That's my older brother Les to the left and then Terry next
to him and James and myself and then my mother.
Q. Now, what was your mother's maiden name?
A. Joyce Walton.
Q. Walton. And do the Waltons have a history in the Michigan
Thumb?
A. Yes.
Q. Do you know how far back -- how long the Waltons have been
living in the Thumb?
A. I -- from what we've -- it's about -- well over 100. I
think it goes back to the 1830's. 1840's. Somewhere.
Q. And do you know what the Waltons have been doing in the
Thumb during that time?
A. Farming.
Q. Farming. I'm going to show you what's been marked as M578.
Do you recognize the people depicted in this
photograph?
A. Yes.
MR. THURSCHWELL: And, your Honor, we move M578.
MR. MEARNS: No objection.
THE COURT: Received. May be shown.
BY MR. THURSCHWELL:
Q. Who do we see here?
A. That's my mother's whole family there, her brothers and
sisters and her mother and father.
Suzanne McDonnell - Direct
Q. Okay. Can you point out your mother in this picture?
A. Yeah. She's up at the top -- actually, at the front of the
tractor, the last one to the -- to the right.
Q. Okay. And did -- where did your mother stand in relation
to her siblings?
A. She was the youngest of ten.
Q. Young -- by the way, where do you stand in relation to your
siblings?
A. I'm the youngest.
Q. Okay. Who is the oldest?
A. Les is.
Q. And then who is after that?
A. It's Les and then James and Terry and myself.
Q. Now, did you grow up on a farm --
A. Yes, I did.
Q. -- as well?
A. Uh-huh.
Q. Let me show you what's been marked as M629. Do you
recognize what's depicted in that photograph?
A. Yes, I do.
MR. THURSCHWELL: We move M629.
MR. MEARNS: No objection.
THE COURT: Received. May be shown.
BY MR. THURSCHWELL:
Q. What does the jury see here?
Suzanne McDonnell - Direct
A. That's actually where I grew up, the brick house where I
grew up -- all of us grew up at. And that's where my mother
currently lives.
Q. And is that -- is that the house in the background?
A. Pardon?
Q. Is that the house in the background?
A. Yes. The brick house is the house.
Q. And what do we see in the foreground?
A. That currently now is the shop. But it used to be the
original house where my mother and father started out.
Q. Okay. Did all four kids live in the house at one time with
your parents?
A. Yeah. Just for a real short time, but -- or that I did,
anyway.
Q. Okay. You built the new house shortly after you were born?
A. Right. Right. Correct.
Q. You say you grew up on a farm. What did you grow on the
farm while you were growing up?
A. Let's see. While we were growing up, corn and wheat. And
then real early, early years, I remember my mother doing a
little bit of sugar beets, but mainly, it was corn and wheat.
And then as it progressed, we got into beans later and -- later
in time.
Q. Okay. I want to -- and -- let me ask you this, you were --
where -- how much older was Terry than you?
Suzanne McDonnell - Direct
A. He was about four years older than I.
Q. Four years -- so and how -- can you describe what Terry was
like as an older brother.
A. As an older brother. He was -- he was a great teacher. He
taught me many things. I -- I remember him the most of all my
brothers growing up because we, I think, had the most time to
spend together since we were the closest and we worked a lot
together, too.
Q. Okay. What kind of work did you do together?
A. Well, since we were the younger ones, we got the jobs that
weren't really the most appealing or the -- kind of the -- so
we got -- we got to pick rocks. We picked a lot of rocks
together.
Q. And let me stop you there. What -- what is picking rocks?
A. You have to go out in the fields and pick the rocks to
remove them so that your -- when you run your equipment over
the ground, that it doesn't damage them and then you have
breakdowns and so you -- we'd spend many days out on -- in the
tractor and loader and picking rocks, and he and I worked out
great together. He drove the tractor, I picked the rocks. And
we knew our hand signals, and we just -- I don't think too many
people could say that they had fun picking rocks together, but
Terry and I always did. We made it fun, you know. It was like
whistle while you work, and we -- we had fun while we worked.
Q. Did you -- did you do any other unpleasant tasks with
Suzanne McDonnell - Direct
Terry?
A. Yeah. We -- we got the job most of the time of shoveling
corn. We had thousands and thousands of bushels of corn, and
one particular area that I really remember enjoying with Terry
is every couple of weeks in our wet holding bin, we would have
to empty it and to do that, you had to sit in this bin for
hours and hours and just shovel and shovel and have a little
break. And on these breaks, especially in the nighttime, we
would sit there and we'd have a flashlight and we'd be doing
puppets -- shadow puppets, you know, and just laughing and
making all kinds of these figures up on this wall in there and
just, you know, having a good time, throwing corn at each other
and -- you know.
Q. Okay.
A. Making the best of it.
Q. Did you do other -- did you build your own buildings on the
farm while you were growing up?
A. Yes. Yeah. We -- we built a -- I believe it was a
60-by-100 grain-storage building, and it was all steel. And we
built -- I know of at least two grain bins that I've helped my
brothers to -- to build.
Q. Okay. And let me -- let me ask you, this -- well, when
you -- strike that.
Did Terry go to college?
A. He did for a short time. Yes.
Suzanne McDonnell - Direct
Q. Did anyone else in your family go to college?
A. No.
Q. What's your highest level of education?
A. To the 12th grade. My mother encouraged me big time to go,
but I was -- I -- my heart was farming. And I just enjoyed
learning on the job rather than going -- I was kind of scared.
I didn't want to be off with other people, really.
Q. Okay. Terry went away to college?
A. Yes, he did.
Q. Did your other siblings graduate from high school, as well?
A. Yes.
Q. And where -- where did he go to college?
A. He went to Central Michigan in Mount Pleasant, Michigan.
Q. And about -- do you remember when he went?
A. I believe it was in the fall of '73.
Q. Okay. Now, did your family start having some hard times
around that time period?
A. Yes.
Q. And what were those hard times?
A. Well, my -- my mother and father, they had filed for
divorce, so the divorce proceedings had started at that time.
Shortly after he left.
Q. Was that a fairly bitter divorce?
A. It was, yes.
Q. Okay. Was there another traumatic incident around the same
Suzanne McDonnell - Direct
time period?
A. When it actually -- the divorce came around, yeah, then my
brother Les, he had gotten burned severely.
Q. He had a severe -- he was severely burned in an accident?
A. Yes. He spent close to six months in the hospital in the
burn unit.
Q. Okay. Now, when did Terry come home from college?
A. He spent like a -- one term or one semester, I believe it
was. So it was early '74.
Q. Okay. And do you know why he came home after one semester?
A. Well, that was about the time that my mother and dad got
divorce -- the actual divorce was coming about. It was almost
finished. And it was getting to be springtime, and my mother
had asked my brother James if he wanted to farm. And she knew
that was in his heart, that James was -- that was his whole
life, and so she agreed to start back up in the farming
operation with him and, you know, welcomed Terry back into the
scene if he wanted -- if he wanted to.
Q. Okay. Did -- tell me what happened to the family after the
divorce.
A. Well, I -- my brother Les went to farm with my dad.
Q. He was the oldest?
A. Yes. He was the oldest.
Q. Okay.
A. And then -- because he got like 200 acres of land. They
Suzanne McDonnell - Direct
split the farm. And my mother got the 160 with the house and
buildings on it. And then -- so the rest of us decided to stay
with my mother, James and Terry and myself.
Q. Did you, with your mother and the other kids, continue
farming?
A. Yes, we did.
Q. Were you successful?
A. I would say so, yes. We were -- I felt really proud. I
was really proud that --
Q. Did you win any awards?
A. We were usually -- there's an elevator in town, and we were
one of the biggest -- between, you know -- it used to be the
Nicholses were like the biggest farmers in the Lapeer County
area. And then as it split up, now there were two. So at the
elevator, they would have the top ten farmers of the year, and
I know that my dad and -- and my -- my brothers, we were both
in that top ten for a number of years.
Q. Okay. Did you get any community recognition in addition to
that?
A. Oh, yeah. Yeah. We did. I -- I do remember that.
Q. Was there, in fact, a newspaper article?
A. Yeah.
Q. Okay. That recognized you. Do you remember when that was?
A. I'm thinking around -- I'm thinking -- I'm not quite sure.
It's either '76 -- between '76 and '78.
Suzanne McDonnell - Direct
Q. I want to show you what's been marked as Defense Exhibit
M95. Do you recognize that?
A. Yes, I do.
Q. And what is that?
A. That's a picture of my brother James, myself and Terry.
Q. Well, what's the whole -- the whole --
A. It's an article in the -- in the Lapeer County Press, which
is the only -- you know, the major paper that's in the area.
MR. THURSCHWELL: We offer M95.
MR. MEARNS: No objection.
THE COURT: Received. May be shown.
BY MR. THURSCHWELL:
Q. And it doesn't quite fit on the ELMO here, but read the
headline for the jury there.
A. "Farming Nicholses Just Hang in There."
Q. And zooming in a bit. Can you identify the people in the
photograph?
A. Yes.
Q. Starting from the left?
A. That's my brother James, myself, and then my brother Terry.
Q. Now, did your mother eventually start expanding the farm?
A. Yes, she did.
Q. And how did she do that? What did she --
A. She started purchasing other farm parcels.
Q. Okay. Where were these other farm parcels?
Suzanne McDonnell - Direct
A. I know one was just 5 miles away from her house, and then
she purchased some up in -- what we call the Cass City, Decker
area.
Q. Okay. And did one of those parcels have a farmhouse on it?
A. Yes.
MR. THURSCHWELL: I'm showing the witness what's been
marked as M519.
BY MR. THURSCHWELL:
Q. Do you recognize that picture?
A. Yes, I do.
MR. THURSCHWELL: We move M519.
MR. MEARNS: No objection.
THE COURT: Received. May be shown.
BY MR. THURSCHWELL:
Q. Could you tell the jury what they are looking at there.
A. Yeah. That's what we call the "farmhouse," and that's
where my brother James currently lives.
Q. Okay. And was this -- was this the farmhouse on the parcel
of land in the Decker area?
A. Yeah. She had bought like two parcels of land and that --
we bought one at an auction, and then we bought this at a
private -- private sale.
Q. About how much -- about how much land in the Decker area
did you end up with?
A. Oh, gosh. Now?
Suzanne McDonnell - Direct
Q. Well, at that time -- at that -- when did your mother buy
the Decker property?
A. There's 160 acres there. There's another 58 -- the first
parcel we purchased was 58 acres, and then we purchased the
160, and I know we had another 40. And I know -- I keep saying
"we" because --
Q. When did your -- when did your mother first purchase the
Decker-area property, including the one with the house?
A. Sometime -- I'm thinking -- I know it's in between '76, '78
time period.
Q. Okay. And did you all work that farm area, as well as the
one in Lapeer?
A. Yes, we did.
Q. Okay. How did you manage that?
A. It was kind of tough, but the ground in Lapeer was always
drier sooner in the springtime, so we would work and we -- we
worked like a total of about -- between 12- and 1500 acres.
And so we would work all the ground in Lapeer first, get it all
worked up, planted, and then we would load up the big tractors
on the trailer and transport those up 40 miles away to the farm
and then haul up the -- it would take us two, three days to get
the equipment up there, and then we would set up, work -- and
we would work up the ground up there and travel back home,
usually to spend, you know -- to stay at night.
Q. All right. Was that -- was that the four of you in the --
Suzanne McDonnell - Direct
your mother and the --
A. Most of the time. Sometimes she didn't always come, but a
lot of times.
Q. So it was the either --
A. Three or four.
Q. Or the three kids?
A. Yeah.
Q. Okay. Now -- and Terry worked the farm there with you,
too?
A. Right.
Q. This was in the '76 to '78 time period?
A. Right.
Q. At some point during that time period, did Terry move to
Colorado?
A. Yes, he did.
Q. Okay. Do you recall when he did that?
A. Yeah. It -- I had graduated in '77, so he left sometime
in -- like the summer -- May or June of '77.
Q. Okay. And do you know why he moved to Colorado?
A. I think it was kind of stressful for him, and he kind of
wanted to get out and do -- kind of be independent, find
something that he kind of wanted to do, too. Something else.
Q. Something on his own apart from the family farm?
A. Yeah.
Q. Why was it stressful for him?
Suzanne McDonnell - Direct
A. Well, we'd had a -- had a lot go on, you know, with the
divorce and then with Les being burnt and -- and you work day
in and day out with not really a whole lot of time off, and you
worked pretty close, and sometimes it wasn't under the best of
conditions.
Q. Let me -- did you get paid for your farm work?
A. No. We didn't get paid. No. We just -- we just all
worked together and, you know, mother made sure we had the
things that we needed.
Q. Now, do you know what Terry did while he was in Colorado?
A. Yeah. He -- he eventually got a real estate license.
That's what he was kind of going for. He kind of enjoyed that
aspect.
Q. Okay. And did -- and do you recall when he came back from
Colorado?
A. It was somewhere in the winter of '77, '78. Like between
December -- November, December, January, February, somewheres
in that area.
Q. Six to eight months after he left?
A. Yeah. He was only gone a short time, really.
Q. And when he came back, did he continue to work on the farm?
A. Yes, he did. My mother said, you know, he was welcome to
come back.
Q. Did he do anything else for work?
A. He also did real estate, and then he did work at a John
Suzanne McDonnell - Direct
Deere dealership.
Q. Was Terry interested in investments during that period?
A. Yes.
Q. What kinds of investments was he interested in?
A. Real estate buying and selling, buying a house or buying a
parcel and trying to make some money, you know, trying to make
a -- what do you -- I lost the words there.
Q. And did he read The Wall Street Journal during that period?
A. Oh, yeah.
Q. Was he interested in the stock market?
A. Yes.
Q. How far back did his interest in the stock market and
investments go?
A. I remember getting The Wall Street Journal delivered at our
house and it was specifically for Terry for a number of years.
Probably -- probably almost since he got out of college.
Just -- not college, but high school. You know, at least '76,
if not '74.
Q. Okay. Now, I want to go back and ask you some question --
more specific questions about Terry, but first, I want to ask
you, did you -- while you were growing up, did you have pets?
A. Yeah. We had a number of different kinds of pets.
Q. What kind of pets did you have?
A. Well, besides having lots of cats, kittens, dogs, I think
our first experience was with a little baby deer.
Suzanne McDonnell - Direct
Q. Okay.
A. And we had an owl and a hawk and --
Q. You had --
A. We had a raccoon, we had a skunk.
Q. Did you -- now, were those pets that you bought in the pet
store?
A. No. Actually, when you're out working in the fields, you
come across them. Sometimes you hurt -- you run them over by
accident. You don't -- you don't know it. I know I had that
happen to me.
Q. Let me -- was -- and did Terry take care of these pets?
A. Yeah. Especially -- the deer, we all kind of did, but
Terry especially. The owl and the hawk, those were his -- we
always -- he and I always tried to get a fox, but we never did.
Q. I want to show you what's been marked as M73. Can you --
do you recognize this photograph?
A. Yes, I do.
MR. THURSCHWELL: We move M73.
MR. MEARNS: No objection.
THE COURT: Received. May be shown.
BY MR. THURSCHWELL:
Q. What is the jury looking at here?
A. That's my brother Terry feeding our baby deer, Jeanie. We
named her Jeanie.
Q. Okay. Now, was Jeanie fully domesticated?
Suzanne McDonnell - Direct
A. No. We -- the only reason we got her basically is because
my brother was out -- James was out plowing and he hit the
deer, and it -- either hit it or it was so new it couldn't
walk, and we looked around for the mother. And so we brought
it home and we got it -- nursed it back to -- to health, and so
we raised it. But we always let it outside, but it did come
inside, too.
Q. Okay.
A. And we'd many occasions have it in the house.
Q. Let me show you what's been marked as M615. Do you
recognize this photograph?
A. Yes, I do.
MR. THURSCHWELL: We move M615.
MR. MEARNS: No objection.
THE COURT: Received.
MR. THURSCHWELL: Publish? Thank you.
BY MR. THURSCHWELL:
Q. What's the jury looking at here?
A. That's my mother in the red, and that's our deer, Jeanie,
and myself down in the lower part. And I don't recall what
she's feeding her there, but she loved apples. And on Sundays,
she always came to the house and had pancakes and applesauce
with our Sunday breakfast. We always had pancakes and
applesauce and sausage on Sunday morning.
Q. And the deer got the benefit of that?
Suzanne McDonnell - Direct
A. Oh, yeah, she had -- she would knock on the window. The
popular song was "Knock Three Times on the Ceiling," and she
would come to our front window and knock three times on the
window and, "Let me in, let me in," and we would feed her.
Q. Let me show you what's been marked as Defense Exhibit M512.
Do you recognize that photograph?
A. Yes, I do.
MR. THURSCHWELL: We move M512.
MR. MEARNS: No objection.
THE COURT: Received.
THE WITNESS: That's my brother. My brother Terry
with the owl.
BY MR. THURSCHWELL:
Q. And is that the owl that he domesticated?
A. Yeah. They all -- all the animals, you know -- we didn't
keep them caged up or anything. We let them roam around. They
had their free will to go wherever, but they always returned
and -- but survived on their own.
Q. Did you say Terry took care of the deer along with the rest
of you and the birds were his special --
A. Yeah. Terry had -- the hawk and the owl were really
Terry's because, like I say, James got the deer and we all --
it was just really an amazing thing. We had the whole town
come out. Our bus would pull in and they would -- kids would
get off and pet the deer and see the deer.
Suzanne McDonnell - Direct
Q. Let me turn to another area. Did you get a chance to
observe Terry with kids after you were -- became adults?
A. Yes.
Q. Okay. Did you have -- do you have a child?
A. Yes, I do.
Q. Okay. Did Terry -- Terry relate -- how -- tell me how
Terry got along with your child. Is that Natalie, your
daughter?
A. My daughter Natalie.
Q. Okay. How did Terry relate to Natalie?
A. She was the first niece for any of my brothers. And I
remember Terry -- I think my brother James visited first of all
at the hospital, but Terry, I believe, was the first one that
came out to my house and held my -- my daughter, and he was
always really good.
Q. I want to show you what's been marked as M45. Do you
recognize that photograph?
A. Yes, I do.
MR. THURSCHWELL: We move M45.
MR. MEARNS: No objection.
THE COURT: Received. May be shown.
BY MR. THURSCHWELL:
Q. And what do we see here?
A. That's my brother Terry about -- I would say and my
daughter Natalie, it was either December of '80 or January
Suzanne McDonnell - Direct
somewheres of '81. Shortly after she was born.
Q. Shortly after she was born. Did -- does Terry have a son
named Joshua?
A. Yes, he does.
Q. Did you get a chance to see how Terry related to Josh?
A. Yes.
Q. Can you just tell the jury a little bit about what you
observed.
A. Oh, he -- he just always tried to -- to make things and do
things. He was really creative at making things. And he
was -- he was always there. I know he took care of Josh for
many, many years.
Q. Took care of Josh as a single parent, as a matter of fact?
A. Yes. Yes.
Q. Let me show you M63.
MR. THURSCHWELL: And, Judge, we would ask that this
be subject to the order that applied to the other children, as
well.
THE COURT: All right. Any objection to its receipt?
MR. MEARNS: No. No objection, your Honor.
THE COURT: All right. It'll be received.
BY MR. THURSCHWELL:
Q. And do you -- what does the jury -- what will the jury be
looking at here when they look at this?
A. That's my brother and his son Josh.
Suzanne McDonnell - Direct
Q. Okay. And where are they sitting?
A. At my mother's favorite picture-taking spot in her house at
the fireplace.
Q. Okay. Now, you've mentioned that Terry was creative. Did
the Walton family -- that is, your mother's family -- have an
annual tradition?
A. Yes. Every -- every Christmas, I don't know how many
years, but there was like the Sunday before Christmas, we --
the whole Walton family would get together. They had to rent a
hall. There would be at least 100 of us. And, you know, bring
food. And the aunts would all prepare the turkey and take care
of all the meals, and they also had Santa Claus that would come
for the little kids and pass out presents.
Q. Now, did Terry make any contribution to that party over the
years?
A. Yeah. As we got older, you know, all of us little cousins
grew up and it wasn't really as much fun to go to these parties
and -- and when Terry had kids, you know, we started having
kids and Terry had Josh -- Terry and Lana had Josh, he arrived
one Christmas party -- I believe it was like '83 -- and he had
made a pinata.
Q. Let me show you what's been marked as M49. What are you --
do you recognize that picture?
A. Yes, I do.
MR. THURSCHWELL: We move M49.
Suzanne McDonnell - Direct
MR. MEARNS: No objection.
THE COURT: Received.
THE WITNESS: That's my brother Terry with his first
pinata. He made that Santa Claus all from scratch,
papier-mache -- newspapers and papier-mache, and did all the --
you know, trimmings there and stuffed it full of candy for the
kids.
BY MR. THURSCHWELL:
Q. Now, I want to show you what's been marked as M50. Ask if
you recognize this photograph.
A. Yes, I do.
MR. THURSCHWELL: We -- we move M50.
MR. MEARNS: No objection.
THE COURT: Received.
THE WITNESS: That one -- that one, I believe, is the
second one. I think it was '94 -- '84. That's my daughter and
then my brother Terry and my mother there. And the pinata,
that Christmas pin -- Christmas tree pinata that he made.
BY MR. THURSCHWELL:
Q. And showing you M61. Do you recognize what's depicted in
this photograph?
A. That's -- yes. I do.
MR. THURSCHWELL: Okay. We move M61.
MR. MEARNS: No objection.
THE COURT: Received.
Suzanne McDonnell - Direct
BY MR. THURSCHWELL:
Q. And what is the jury looking at here?
A. That's Terry again with another -- another year probably --
yeah. '86, '85, '86. Another -- a bell pinata.
Q. Is that the -- the area where the party was held that we're
looking at?
A. Yeah. That's the area where Terry set up the pinatas, and
he would -- he had a string on it so that he could move it up
and down for the kids, depending on the height of the child
that was swinging the bat.
Q. I want to show you what's been marked as M76. What -- do
you recognize what's depicted in this photograph?
A. Yes. Yes, I do.
MR. THURSCHWELL: Okay. We move M76.
MR. MEARNS: No objection.
THE COURT: Received.
BY MR. THURSCHWELL:
Q. And what are we looking at there?
A. That's Terry, and his son Josh is right in front of him
there, the little one. And the snowman pinata. That was
another one that he had made, another year. And actually, I
think that's my daughter's arm there, swinging the bat. I
recognize the dress.
Q. And is -- why is his hand raised in the picture?
A. Because he would swing it back and forth and try and make
Suzanne McDonnell - Direct
it either easier -- because sometimes, he'd make these pinatas
and the kids couldn't break them. They -- they had a ball. He
kind of gave all the -- almost all the kids, especially the
little ones, a chance to -- to get a chance at the bat to -- to
try and swing it, and the kids just looked so forward -- after
the first year, those kids just -- they couldn't wait for Terry
to show up, "Is he coming with the pinata," you know, because
it's something that had never happened when we were growing up.
Q. Okay. I want to show you what's been marked as M52. Do
you recognize that photograph?
A. Yes, I do.
Q. What is that?
MR. THURSCHWELL: We move M52.
MR. MEARNS: No objection.
THE COURT: Received.
THE WITNESS: That's another -- that's the snowman
pinata and then all the little kids around. I think Josh's
head is -- is right there in the front -- you know, looking at
the snowman. He just -- he loved that. One time, he wanted
to -- he wanted -- when it opened, he went around, grabbing all
the candy, and his dad, Terry, had to tell him, "No, no, you've
got to share. You have to share."
He didn't like that idea too much. He did. There was
enough for all of them.
BY MR. THURSCHWELL:
Suzanne McDonnell - Direct
Q. Mrs. McDonnell, have you stayed in touch with Terry since
he's been in jail?
A. Yes, I have.
Q. Okay. How have you stayed in touch with him?
A. By phone and by letters. And visits.
Q. Okay. Now, I want to show you -- oh, I'm sorry. Did he
stay in touch with other members of the family, to your
knowledge?
A. Yes, he did. My mother, I know; and I know he called my
father when he could. And Les. But he's -- Les is hard to get
a hold of. But yes, he basically kept -- kept in contact
with -- with all of us.
Q. I want to show you M621. And ask, first of all, do you
recognize the handwriting?
A. Yes, I do.
Q. Whose handwriting is it?
A. It's Terry's.
Q. Okay. Have you seen this letter before?
A. Yes, I have.
MR. THURSCHWELL: We move M621.
MR. MEARNS: No objection.
THE COURT: Received.
MR. THURSCHWELL: May I approach, your Honor?
THE COURT: Yes.
BY MR. THURSCHWELL:
Suzanne McDonnell - Direct
Q. Mrs. McDonnell, what's the date on that letter?
A. It's Thursday night, 4th May, '95.
Q. Is that shortly after Terry's arrest?
A. Yes.
Q. I -- could you please read the first page of that letter.
A. I'll try to do my best. I'm sorry. I've kind of lost my
voice here so --
"Mother: This is the first chance I've gotten to
write a letter to anyone. I would like to have you or Sue to
call and talk to Marife and see how she is doing. I would like
to know if she could stay with Sue at her home. It would be
better than staying alone with Nicole in a strange motel in a
strange town where she knows no one and she" cannot -- "she
can't go outside. I can't remember Sue's address, so that's
why I'm writing to you. Please try to help Marife and Nicole.
I'm thinking about them in a motel room stuck with no place to
go. Marife does not yet a drivers' license, so she can't
drive. I would like someone perhaps Joe & Sue to come down and
pick her up. That way, she could also hopefully get some of
her, Nicole, and maybe some of my things out of our house. I
think there are some things left at the house. I'm sure Marife
could use more of her clothes and Nicole's, too. Also some
toys and dolls for Nicole. I know that Nicole loves her Sesame
Street book and the little pull choo-choo train, and her little
yellow ladies. The train might be in the box in the basement
Suzanne McDonnell - Direct
yet.
"I know Marife would like to go back to the
Philippines at this time, and Nicole would" like -- and go with
Nicole with her. "I have no problem with that" as "that would
be the best thing at this time because I have no idea how long
this will take. She would be probably safer home and it would
be better for her to be near her family and friends. The last
time (and first) that I have talked to Marife, she thought the
FBI would give her money back to her. I certainly hope so. So
that she can take care of Nicole. If you can help her -- let's
see. See if you can help her by --" oh "-- by talking to Agent
Scott Crabtree, FBI, Salina, Kansas, (913) 823-6787, and try to
keep me informed as to where they are and how they are doing."
Q. Do you know who Agent Scott Crabtree is?
A. Yes.
MR. THURSCHWELL: Now, your Honor, may I approach
again?
THE COURT: Yes. I thought you said the bench.
MR. THURSCHWELL: Oh, I'm sorry.
BY MR. THURSCHWELL:
Q. Mrs. McDonnell, before I ask you about that letter, Terry
in the last letter asked about you possibly being able to do
something for Marife. Did he ever ask you to do something
personally for Marife?
A. I know he -- he wanted me to have her stay at our house.
Suzanne McDonnell - Direct
Q. Okay. Did he ask you to try to get her money by selling
stock for him?
A. Yes.
Q. Okay. What -- what happened? Tell the jury how that
happened.
A. He contacted me and wanted me to get the penny stocks that
he had had from Marife, and so I had to send for those, and
Marife sent me -- the stocks to me. We had to go through
getting the power of attorney to sell the stocks, so he gave me
his power of attorney to -- to sell the stocks.
Q. Okay. Now, turning to the letter in front of you, M106, do
you recognize the handwriting on that letter?
A. Yes, I do.
Q. Have you seen that letter before?
A. Yes.
Q. That's a letter addressed to you?
A. Correct.
MR. THURSCHWELL: Okay. We move M106.
MR. MEARNS: No objection.
THE COURT: Received.
BY MR. THURSCHWELL:
Q. Mrs. Nic -- Mrs. McDonnell, could you read the first
paragraph of that letter to the jury.
A. Sure. It's dated 2 January, '96, Tuesday.
"Dear Sue: Just wanted to write you for a quick note
Suzanne McDonnell - Direct
to thank you for the Christmas card and all that you and your
family have done for me. Tell Natalie thanks for her letter
and that I will write her shortly. As I am sure you've heard,
Marife has given birth to Christian on the 16th December, '95,
at 8:31 a.m., Saturday, 8 pounds, 6 ounces. I talked to Rose
on Friday, 29th December, '95, and Rose said that Marife had
called and talked to her. Rose said all was well. I hope so.
I hate not being there and at least not being there and able to
talk to Marife directly. Anyhow, I've decided to try to write
more often. I hate writing. It takes so long. To keep your
phone bills down and mother's, too. Marife needs the money
that you, mother (everyone) are sending her" for more than I --
"are sending her more than I need to make any collect calls. I
can write a letter. That only costs 32 cents, a lot cheaper
than a collect call. And I don't want to give anyone extra
phone expenses and jeopardize any money that is being sent to
Marife. She needs to know she can count on it, and I will do
what I can to help her. (Marife didn't tell me this.) I'm
sure" -- in parentheses. "I'm sure the extra days in the
hospital were the results of forced labor." In parentheses.
(I'll know more once I get a letter from Marife.) That caused
the extra loss of blood. Marife had no problems with Jason or
Nicole. (She was 9-pounds-plus.) But we had the good
assistance of a midwife then. The hospitals and doctors don't
like to wait. Time is money to them and anything extra they
Suzanne McDonnell - Direct
can do, the more money they make. (Force labor, C-section,
etc.) Marife was not overdue, but I wasn't there to help her
through it, either. So anyhow, I should be writing more and
calling less."
Q. Okay. Did you get any cards from Terry in addition to
letters?
A. Yes, I did.
Q. Showing you on the ELMO what's been marked as M103. Is
this one of the cards you received from Terry?
A. Yes, I did.
MR. THURSCHWELL: We move M103.
MR. MEARNS: No objection.
THE COURT: Received.
BY MR. THURSCHWELL:
Q. And do you know if he sent cards to other members of your
family?
A. Yes.
Q. Did he send any to your mother?
A. Yes, he did.
Q. Did she show them to you?
A. Yes.
Q. Showing you what's been marked as M583. Is this one of the
cards that he sent to your mother?
A. Yes, it is.
MR. THURSCHWELL: We move the admission of M583.
Suzanne McDonnell - Direct
MR. MEARNS: No objection.
THE COURT: Received.
BY MR. THURSCHWELL:
Q. Have you visited Terry in prison?
A. Yes, I have.
Q. Has that been recently?
A. Yeah. Throughout the trial here, and then several times
during the past two-and-a-half years.
Q. Have you had a chance to observe him with Nicole and
Christian?
A. Yes.
Q. Can you describe some of the things he's done with them in
your -- that you've observed?
A. On the weekends, I take -- it's either my mother or I. We
take Nicole, Marife, and the kids in to see Terry. And I pick
them up and I say, "Are you ready to go see Daddy?" And they
are -- they are all excited, ready to go see him. And we get
in there and they give big hugs and kisses to Daddy. And he
plays with them. Puts them on his shoulders. And Christian
especially likes to be swung like a clock. He's -- "Clock,
clock." He doesn't really talk a lot yet, but he can get that
word "clock" out, and Daddy knows what it means. And it's like
a pendulum. And -- and we also make things with him, too.
MR. THURSCHWELL: No further questions.
THE COURT: Do you have some questions, Mr. Mearns?
MR. MEARNS: May I have a moment, your Honor?
We have no questions, your Honor. Thank you.
THE COURT: All right. You may step down.
THE WITNESS: All right.
THE COURT: You're excused.
MR. THURSCHWELL: We call Leslie Nichols.
THE COURT: All right.
THE COURTROOM DEPUTY: Would you raise your right
hand, please.
(Leslie Nichols affirmed.)
THE COURTROOM DEPUTY: Would you have a seat, please.
Would you state your full name for the record and
spell your last name.
THE WITNESS: Leslie Allen Nichols, N-I-C-H-O-L-S.
THE COURTROOM DEPUTY: Thank you.
DIRECT EXAMINATION
BY MR. THURSCHWELL:
Q. Good morning, Mr. Nichols.
A. Good morning.
Q. Mr. Nichols, where do you live?
A. 1400 Grosbeck Road in Lapeer.
Q. Is that the house you grew up in?
A. Yes, it is.
Q. Okay. And are you Terry Nichols' oldest brother?
A. Yes, I am.
Leslie Nichols - Direct
Q. All right. Let me ask you -- oh, are you working?
A. Yeah. I'm a self-employed truck driver.
Q. Self-employed truck driver?
A. Yes.
Q. Okay. Let me ask if you remember the first house you grew
up in.
A. It was a small house: living room, bedroom. Oh, bathroom.
And a washroom. All six of us slept in one room.
MR. THURSCHWELL: Your Honor, I want to show the
witness what's been marked as M573.
THE WITNESS: That's the house.
MR. THURSCHWELL: We move M573.
MS. WILKINSON: No objection.
THE COURT: Received.
BY MR. THURSCHWELL:
Q. Mr. Nichols, how many bedrooms were there in the house?
A. Only one.
Q. Now, where did you sleep?
A. We all slept in bunk beds.
Q. You -- when you say "we all" --
A. Terry, James, and I had bunk beds.
Q. Okay.
A. Susie had a crib, and mother and Dad had their bedroom --
had their bed.
Q. Their bed. Now, were you all in the same room, or were you
Leslie Nichols - Direct
in different --
A. All in the same room.
Q. Okay. How long -- how old were you when you moved out of
that house?
A. I was probably about eight years old.
Q. All right. And had Susie recently been born?
A. Yes.
Q. You built a new house next door?
A. In '58 -- '59 and '60.
Q. Okay. And then you moved in there?
A. Right.
Q. Where did you go to elementary school?
A. I started out in Barringer School, and then I went later to
Slater School when they closed the Barringer School.
Q. Let me show you what's been marked as M197. Before --
before I ask about this, how many rooms in that schoolhouse?
A. Just one room.
Q. One-room schoolhouse. And how -- did all of you attend at
one time?
A. Yes, we did.
Q. I want to now ask you to look at your monitor. And do you
recognize this?
A. Yes. James and Terry and me.
MR. THURSCHWELL: Before you say, your Honor, we move
M197.
Leslie Nichols - Direct
MS. WILKINSON: No objection.
THE COURT: Received.
BY MR. THURSCHWELL:
Q. Is this -- Mr. Nichols, is this a photograph of the -- the
school in 1960, 1961, the students in it?
A. Yes.
Q. And can you just point out -- you can reach under -- well,
could you take your pen -- there's a light pen that's attached
to a -- to a thing and reach underneath the desk, and could you
just circle first yourself.
A. Right here.
Q. Okay. And then James.
A. James up here.
Q. And then Terry.
A. And Terry.
Q. Thank you. Now, let me turn to your life on the farm. Did
you -- all you kids work on the farm?
A. Yes, we did.
Q. And about how old were you when you began working in the
fields?
A. I started driving tractor when I was three years old.
Q. You actually were driving a tractor?
A. Just steering it.
Q. Steering it. Practicing?
A. I couldn't touch no pedals.
Leslie Nichols - Direct
Q. When did you actually start driving it out in the field
itself?
A. Probably about eight or nine.
Q. Let me show you what's been marked as M200. Do you
recognize that photograph?
A. That's me.
MR. THURSCHWELL: We move M200.
MS. WILKINSON: One moment, your Honor.
THE COURT: Yes.
MS. WILKINSON: No objection.
THE COURT: Received.
BY MR. THURSCHWELL:
Q. And is that you on the tractor?
A. Yes, it is.
Q. How old are you there; do you know?
A. Probably three or four.
Q. All right. That's when you're practicing?
A. Yeah.
Q. Okay. And you said you started around the age of eight or
nine?
A. Right.
Q. Was that true of Terry, as well?
A. Basically, yes.
Q. Okay.
A. We all took our turns.
Leslie Nichols - Direct
Q. Let me show you what's been marked as Defense Exhibit M566.
Ask if you recognize this photograph.
A. That's my mother and Terry.
MR. THURSCHWELL: Okay. We move M566.
MS. WILKINSON: No objection.
THE COURT: Received.
BY MR. THURSCHWELL:
Q. And tell the jury who they are looking at there.
A. My mother and Terry.
Q. Okay. And is -- there's a date on the side that says
"April, '66." Is that about the right date, to your knowledge?
A. Yes. Yes, it is.
Q. Now, apart from working, what did you do for fun as kids?
A. We played baseball, football, played games, like Monopoly
and cards and euchre and poker. Learned a lot of card games.
Q. Did you -- did you play organized baseball with a league?
A. No.
Q. Why not?
A. We didn't have time. We didn't have no way to get there.
Q. When you say you "didn't have time," what were you doing?
A. We was on the farm, working.
Q. All right.
A. Our folks didn't have time to take us.
Q. Okay. Fair to say that you did -- the work was hard and
long at the farm?
Leslie Nichols - Direct
A. Yes.
Q. Okay. Now, did you do anything -- any other kinds of
sports as -- as kids?
A. Oh, we snow skied, sleigh ride, water-skied.
Q. Okay.
A. Played football.
Q. Did you go hunting?
A. Went hunting, fishing.
Q. Let me show you what's been marked as Defense Exhibit --
MR. THURSCHWELL: Excuse me one moment, your Honor.
M568. I'm sorry. Well -- I'm sorry, your Honor.
BY MR. THURSCHWELL:
Q. Do you recognize this photograph?
A. Yes, I do.
MR. THURSCHWELL: We move M568.
MS. WILKINSON: No objection.
THE COURT: Received.
BY MR. THURSCHWELL:
Q. What -- who is the jury looking at here?
A. James and Terry.
Q. Okay. With their fishing rods. And again, the -- the date
on the side there says, "April, '58"?
A. '58.
Q. Do you think -- is that accurate, to the best of your
knowledge?
Leslie Nichols - Direct
A. Yeah. I would say so, yes.
Q. Okay. Were you in the Boy Scouts?
A. Yes, I was.
Q. All three of you?
A. Yes, we was.
Q. All right. Did you used to go -- did you ever go to school
dances?
A. Yes, we did.
Q. Okay. How often?
A. Probably twice a year.
Q. All right. Let me show you what's been marked as M472. Do
you recognize this photograph?
A. Yes, I do.
MR. THURSCHWELL: We move M472.
MS. WILKINSON: No objection.
THE COURT: Received.
BY MR. THURSCHWELL:
Q. And could you tell the jury who they are looking at there.
A. That's Terry right there.
Q. Okay. Terry with that -- is he going to a prom?
A. I think it was the prom. Dance.
Q. Okay. Mr. Nichols, what -- what was Terry like as a kid?
A. Just an ordinary farm boy growing up.
Q. Do you -- do you have any specific memories of him doing
anything athletic?
Leslie Nichols - Direct
A. Yeah. We played sports. He climbed. He was like a
monkey. He was always in the trees, climbing around, hanging
from his knees.
Q. I'm going to show you what's been marked as M608. Do you
recognize that photograph?
A. Yes, I do.
MR. THURSCHWELL: We move M608.
MS. WILKINSON: No objection.
THE COURT: Received.
BY MR. THURSCHWELL:
Q. And what is the jury looking at there?
A. Terry on top of a swing set.
Q. Is that something he used to do often?
A. Yeah.
Q. And the date on the side there says, "October, '59." Is
that accurate, to the best of your knowledge?
A. Yes, it is.
Q. Show you what's been marked as M587. Do you recognize this
photograph?
A. Yes, I do.
MR. THURSCHWELL: We move M587.
MS. WILKINSON: No objection.
THE COURT: Received.
BY MR. THURSCHWELL:
Q. And who are -- who is the jury looking at there?
Leslie Nichols - Direct
A. James and Terry.
Q. Did Terry have any special talent in terms of standing on
his hands?
A. Yeah. He could walk down the hall without touching the
floor.
Q. Okay. Let me show you what's been marked as M72. Do you
recognize that photograph?
A. Yes, I do.
MR. THURSCHWELL: We move M72.
MS. WILKINSON: No objection.
THE COURT: Received.
BY MR. THURSCHWELL:
Q. And what is the jury looking at there?
A. That's Terry riding his unicycle to town.
Q. And he was riding his unicycle to town. Did he do that
frequently?
A. Yeah. Quite often. Probably once a week, every other
week.
Q. And how far was town?
A. 5 miles to town.
Q. So he'd ride it there and back?
A. Right.
Q. Okay. Now, Mr. Nichols, you had a fairly severe accident
in 1974; is that correct?
A. Yes, it is.
Leslie Nichols - Direct
Q. Could you briefly tell the jury how that happened.
A. I was welding on a diesel fuel tank, quit and went to
lunch, started welding again.
Q. Just slow down. Slow down a little bit.
A. I was welding on a diesel fuel tank, and I quit and went to
lunch. Come back about an hour and a half later and started
welding again, and it blew up.
Q. Okay. And were you badly burned?
A. Yes, I was.
Q. How badly?
A. Third -- third-degree burns.
Q. Okay. How long were you in the hospital?
A. Five-and-a-half months.
Q. Now, did this accident have an impact on your family?
A. Yes, it did.
Q. Did it have an impact on Terry, to your knowledge?
A. Yes.
Q. Did Terry do anything as a result of the accident?
A. He offered to offer blood and skin.
Q. Offered blood and skin?
A. Yes.
Q. Did you actually get blood and skin from Terry?
A. No, because it was not an identical twin.
Q. Okay. So the doctors told him he couldn't donate. All
right.
Leslie Nichols - Direct
Now, Mr. Nichols, have you kept in touch with Terry
since he was arrested?
A. Yes, I have.
Q. And how have you kept in touch with him?
A. Oh, letters and cards, phone calls.
Q. All right. Let me show you what's been marked as Defense
Exhibit M192. Do you recognize what's shown there on the
screen in front of you?
A. Yes, I do.
MR. THURSCHWELL: We move M192.
MS. WILKINSON: No objection.
THE COURT: Received.
BY MR. THURSCHWELL:
Q. What is this?
A. Birthday card.
Q. Birthday card from Terry?
A. Yes.
Q. I just want to focus in a little bit on the card itself.
There's some other words, Peterbilt, GMC, Ford, Navistar
written on there. What are those?
A. Those are just different truck makes and models.
Q. Different types of trucks?
A. Yes.
Q. Finally, Mr. Nichols, did you get a chance to observe Terry
in his role as father?
Leslie Nichols - Direct
A. Yes, I did.
Q. When was that?
A. Oh, when he had Josh born. When Josh was born.
Q. Okay. Do you remember what -- about what time period that
was?
A. I don't remember exactly when Josh's birthday was. No, I
don't.
Q. Was it in the early 80's?
A. Mid 80's there.
Q. Okay. And how would you describe Terry's relationship to
Josh?
A. He was a good father. Teaching father.
Q. What did he teach him that you observed?
A. Basics. You know, if his toys broke down, how to fix them.
You know, how to read and write. How to build -- you know, if
his toys broke, how to fix them, put them back together.
Q. Did you -- how old Josh when he was trying to teach him to
read and write?
A. Probably about two, three years old.
Q. Okay. So he was not in school?
A. No. He wasn't in school, no.
MR. THURSCHWELL: No further questions, your Honor.
THE COURT: Ms. Wilkinson, do you have questions?
MS. WILKINSON: Yes, your Honor.
CROSS-EXAMINATION
Leslie Nichols - Cross
BY MS. WILKINSON:
Q. Good morning, Mr. Nichols.
A. Good morning.
Q. You told us a little bit about your relationship to Terry.
Can you tell us, was he the second brother, or the third
brother in order?
A. He's my third -- well, second brother.
Q. Okay. So James is younger than Terry?
A. No. James -- James is between Terry and I.
Q. What's the age difference between you and James?
A. Two years.
Q. And what's the age difference between James and Terry?
A. One year.
Q. Since Mr. Nichols has been in jail, have you been able to
visit him?
A. Yes, I have.
Q. And has your brother James been able to visit him?
A. Yes, he has.
Q. And during these visits, are you and your brother able to
talk to Terry about whatever issues you want to talk to him
about?
A. Yes, we have.
Q. Now, while you were growing up, were you close to
Mr. Nichols?
A. Yes, I believe so.
Leslie Nichols - Cross
Q. And was he close to your brother James?
A. Yes.
Q. Did you know and did you keep in touch with Terry when he
lived on the farm in Decker, with Marife Nichols and his
daughter?
A. On and off different times, we did.
Q. And did you see him with your brother James?
A. Yes. Because we -- I did.
Q. Did you also see Mr. Nichols with Timothy McVeigh at the
farm in Decker, Michigan?
A. Yes.
Q. Now, during that time, did you talk to Terry and James
about their political views?
MR. THURSCHWELL: Objection, your Honor. Beyond the
scope of direct.
THE COURT: Sustained.
BY MS. WILKINSON:
Q. You told us that you and James have been able to visit
Mr. Nichols in prison; is that right?
A. Right.
Q. And are you aware of your brother's conversation -- James'
conversations with Mr. Nichols, Terry Nichols?
A. No, I'm not.
Q. You've never been present when they have had any
discussions?
Leslie Nichols - Cross
A. No, I'm not.
Q. If I could, I'd like to ask you just a few questions about
your recovery from the accident that occurred in -- 1974; is
that right?
A. Yes, it is.
Q. Was Terry Nichols with you and did he visit you in the
hospital?
A. Yes.
Q. And was he -- did you discuss with him what had happened to
you?
A. No. Not at first.
Q. But eventually, when you recovered?
A. Right.
Q. Did you and he discuss the blast?
A. Yeah. Yes, we did.
Q. Okay. And during your time on the farm when you were
growing up, did you and your brothers become aware of ammonium
nitrate and fuel oil and those uses to blow out stumps on
farms?
A. Not exactly that way.
Q. Okay. In what way did you?
A. Well, just fertilizer and dynamite was all.
Q. And --
A. We was pretty young at the time.
Q. All right. At some point, did you learn how to use those
Leslie Nichols - Cross
to blow out stumps on your farm?
A. I never did, no.
Q. Did Terry?
A. I don't believe so when I was on the farm.
Q. Did you ever tell the FBI that you had become aware of how
to use diesel oil and ammonium nitrate to blow out stumps?
A. Yes. I'm aware of it.
Q. And you know that a small quantity of that can blow a stump
out and cause a great deal of damage; isn't that right?
A. Yes.
Q. And Terry Nichols was also aware of that; isn't that right?
A. Yes.
Q. Now, when you were recovering from your accident, he saw
what had happened to you; correct?
A. Yes.
Q. And he was very concerned about you?
A. Yes.
Q. And he knew that that was the result of the blast --
A. Yes.
Q. -- of fuel oil; correct?
MS. WILKINSON: I have no other questions, your Honor.
THE COURT: Do you have any follow-up?
MR. THURSCHWELL: Nothing further, your Honor.
THE COURT: All right. I take it he's excused?
MR. THURSCHWELL: He's excused.
THE COURT: You may step down. You're excused.
THE WITNESS: Thank you.
THE COURT: We'll take our morning recess at this
time, members of the jury, for the usual period of 20 minutes
with the usual cautions, of course, of avoiding discussion
about the issues before you, waiting until you've heard it all
and you've been instructed to begin deliberations and, of
course, avoiding anything outside the evidence and keeping open
minds until you've heard it all.
So you're excused now. 20 minutes.
(Jury out at 10:25 a.m.)
THE COURT: We'll be in recess. 20 minutes.
(Recess at 10:25 a.m.)
(Reconvened at 10:45 a.m.)
THE COURT: Be seated, please.
MR. TIGAR: May we approach, your Honor?
THE COURT: Yes, sure.
(At the bench:)
(Bench Conference 151B2 is not herein transcribed by court
order. It is transcribed as a separate sealed transcript.)
(In open court:)
(Jury in at 10:47 a.m.)
THE COURT: All right. Next, please.
MR. THURSCHWELL: Call Lyle Rauh.
THE COURTROOM DEPUTY: Would you raise your right
hand, please.
(Lyle Rauh affirmed.)
THE COURTROOM DEPUTY: Would you have a seat, please.
Would you state your full name for the record and
spell your last name.
THE WITNESS: Lyle Duane Rauh, R-A-U-H.
THE COURTROOM DEPUTY: Thank you.
THE COURT: Proceed.
DIRECT EXAMINATION
BY MR. THURSCHWELL:
Q. Good morning, Mr. Rauh.
A. Good morning.
Q. Mr. Rauh, where do you live?
A. 1378 Lapeer, Michigan (sic).
Q. And what do you do for a living?
A. I'm a custom-home builder in Lapeer.
Q. And you build and develop houses and housing tracts?
A. Yes, I do. Developer as well. I've done about 200 homes.
Q. Okay. How do you know Terry Nichols?
A. We grew up together and we were neighbors. We lived about
Lyle Rauh - Direct
2 miles away from each other. Our family farmed as well as his
family farmed, and I would say basically I first met him like
in kindergarten, first grade. We went to a one-room school, so
we seen him all the time every day, even though we were in
different classes and --
Q. All right. And you said you worked together?
A. Yes, we did.
Q. Did you actually farm -- did you farm -- families actually
farm together during a certain period?
A. Yes. It was about two years that we farmed together.
Their family was a cash-crop farmer. Our family was a dairy
farmer, and we had an opportunity to -- that Terry's dad wanted
to save the straw that they was leaving behind the combines,
and so we baled not only the straw and then resold it as well
as the hay. We sold about -- somewhere between 80- and 90,000
bales of hay and straw during two summers, late 60's, early
70's, like '70, '71, in that time span.
Q. Let me show you what's been marked as Defense Exhibit 702.
A. Yes.
Q. Do you recognize that photograph?
A. Yes, I do. I took that photograph.
MR. THURSCHWELL: We move M702.
MR. ORENSTEIN: No objection.
THE COURT: Received.
BY MR. THURSCHWELL:
Lyle Rauh - Direct
Q. What's the piece of land we're looking at there?
A. That is a piece of land just outside of Lapeer, Michigan.
It was owned -- it was land that we rented.
Q. When you say "we," who are you referring to?
A. A couple years, Terry's mom and dad rented the farm; and
then there was different years that my mom and dad rented the
farm.
Q. So this was land that you shared?
A. That is correct.
Q. Okay. And did you -- did you farm it at that time?
A. Yes. Yes, we did.
Q. And what do we see here? When was this photograph taken,
by the way?
A. This photograph was taken on November 26, 1994.
Q. And how is the land being used now?
A. The land is being developed. Actually, my dad and I and
some friends are developing that land that Terry and their
family, we, used to farm, which now we're putting up homes in
the 2- to 500,000 range.
Q. And is this -- focusing in on the home there, is that a
home that you built?
A. Yes, it is.
Q. Mr. Rauh, what was it like working with Terry Nichols?
A. You could depend on him. He was always there for you.
Unfortunately, he always got what you -- would be referred to
Lyle Rauh - Direct
as the crappy jobs, because he was the youngest of three
brothers. He was as well younger than myself, and there was --
Terry's two older brothers, Terry, myself and both dads and
Joyce worked together. Terry, being the youngest of everybody,
got the worst-desirable job; but what was enjoyable with
working with him was the fact that he never complained and he
was always there. If you had work to be done and you wanted
him to do it, he would drop what he was doing, help you, and go
back and finish what he was to do.
Q. What kinds of work did you do together? You said you were
out there in the fields.
A. We baled hay, worked up the fields, combine, cut hay, raked
hay, loaded a lot of semis, trucks, because not only was we
baling the hay and things, but we also was putting it into the
barns, which was lot of times where Terry was stuck because it
was hot and humid, the worst job, and then reloading the semis
because we were selling to individual brokers who wanted the
hay and straw.
Q. Let me show you what's been marked as Defense Exhibit M699.
Do you recognize this photograph?
A. Yes, I do.
MR. THURSCHWELL: We move M699.
MR. ORENSTEIN: No objection.
THE COURT: Received.
BY MR. THURSCHWELL:
Lyle Rauh - Direct
Q. What are we looking at here?
A. In this picture, you're looking at Terry and myself. Also
during the time that we worked together, his mom and dad built
a large grain building. I don't know the size but
approximately probably the size of this room, I would say.
Q. And where was that located?
A. That was located right at their farm.
Q. And did the family with your help put it up?
A. Yes. Terry -- their family and our family put the building
up for them so as to be able to put it up as economical as
possible.
What you're seeing in the picture is Terry and I are
actually mixing cement.
Q. Which is you and which is Terry in this picture?
A. I'm the one without the shirt on.
Q. Okay. Did there come a time when your family needed some
extra help farming?
A. Yes.
Q. When was that?
A. 1969, my dad had a bad accident.
Q. What happened?
A. Actually, he was milking cows; and one cow got spooked and
fell on him, doubled him up. Actually collapsed both lungs and
pulled all his muscles. He was laid up for just short of a
year. We had a --
Lyle Rauh - Direct
Q. Did -- were you able -- were you able to continue the
farming operation at this point?
A. Well, that was a decision that we had to make immediate,
because we was in the dairy farm, which meant the cows had to
be milked every morning, every night. I do have three older
brothers who had all left because they were older and in
college. And so I was in school. Dad tried to find help,
trying to think of who would be dependable. He couldn't think
of anybody.
At school that day, I talked to Les and the Nichols
boys, and they offered -- they volunteered and helped us out.
They came every morning and every night and helped us on those
cows.
Q. That was before and after their own day of work?
A. We started milking at 5 in the morning, which meant they
had to have been up by 6 -- or by 4, 4:30. We milked the cows,
went to school, after school. They helped. They saved us.
Q. And was that all three of the brothers?
A. At different times, yes.
Q. Les, Terry, and James.
A. Yes. They -- between the three of them, they were there
every morning and every night.
Also, they helped plant all our crops because my dad
was still laid up.
Q. Was that in your experience of them -- was that
Lyle Rauh - Direct
characteristic of the Nichols boys?
A. Yes.
Q. Willing to help when needed?
A. Yes.
Q. You were in high school at the same time as Terry; is that
right?
A. He was two grades younger than I was. Yes.
Q. Did you socialize with him at that time?
A. Yes. We would see each other as well as we rode to and
from school together, as well as we went as families and
things -- we had like hay rides for the kids in the
neighborhood and also like the teachers, future teachers clubs
and the library clubs and the Girl Scouts, and so we put on hay
rides.
Q. Let me stop you. Let me ask you about the hay rides. What
were those hay rides?
A. Hay rides, you'd have a tractor and a couple wagons and
straw and invite your friends over and take them for a
couple-hour ride on a hay ride; and it was things that Terry
and I and everybody pitched in to help after chores, and we
would do them in the evenings.
Q. And who had the hay rides?
A. All of us. In other words, Terry, James, myself, or in
situations like where I was in the future teachers club at
school and library clubs, they would put it on and Terry and
Lyle Rauh - Direct
myself and James, whoever was there, would help get everything
ready and help out.
Q. Was that on the Nichols farm?
A. Both farms, either our farm or their farm.
Q. I want to show you what's been marked as Defense Exhibit
M618, ask if you recognize that scene?
A. Yes, I do.
MR. THURSCHWELL: We move M618.
MR. ORENSTEIN: No objection.
THE COURT: Received.
BY MR. THURSCHWELL:
Q. What are we looking at here?
A. We're actually looking at the Nichols farm. It's our two
wagons. There is about half-a-dozen people on the wagon, and
the deer is -- when we was farming also during the summers of
cutting hay and things, one day there was a deer there out in
the field; and we didn't want to hurt it, so we picked it up so
it wouldn't get into the hay 'bine and took it home. And Susie
and Terry and the family nursed it, and I'm not sure exactly,
but had it for about a year, year and a half. It was just like
a pet. It would come into the house, sleep at night in front
of the fireplace. During the day it ran out just like any
other deer. And what you see in there is the deer is licking
the gentleman's hand right there.
Q. Let me ask you: You knew Terry as an adult as well; is
Lyle Rauh - Direct
that right?
A. Yes, I did.
Q. Did you know him about around the time that he was deciding
to marry Lana Osentoski, now Lana Padilla?
A. Yes, I did.
Q. Did you talk to him about that?
A. Actually, one night Terry asked if he could come over and
see me and came up and talked to me for a while because
actually Joyce had advised not to -- not for him to marry Lana;
and Terry -- I was sort of like an older brother to him because
his older brothers pick on him like every older brother. And
he wanted my opinion: What do you think -- because we had not
only with the farm, we had gone ski trips together and river
canoe trips and Cedar Point and different things -- we've done
a lot of different things together, and he wanted my opinion.
And my answer was -- because he had told me first that
Joyce had a different opinion and it was because that Lana had
been married before. And my opinion was: Terry, if you love
her, then yes, marry her.
Q. And do you know that he did marry her?
A. Yes.
MR. THURSCHWELL: No further questions, your Honor.
THE COURT: Any questions?
MR. ORENSTEIN: No questions, your Honor.
THE COURT: All right.
MR. THURSCHWELL: The witness is excused.
THE COURT: You may step down. You are excused.
Next witness, please.
MR. THURSCHWELL: Call Susan Simpson.
THE COURTROOM DEPUTY: Would you raise your right
hand, please.
(Susan Simpson affirmed.)
THE COURTROOM DEPUTY: Would you have a seat, please.
Would you state your full name for the record and
spell your last name.
THE WITNESS: Susan Kay Simpson, S-I-M-P-S-O-N.
THE COURTROOM DEPUTY: Thank you.
DIRECT EXAMINATION
BY MR. TIGAR:
Q. Good morning, Ms. Simpson.
A. Hi.
Q. Hi. Where do you live?
A. Lapeer, Michigan.
Q. How long have you lived in Lapeer, Michigan?
A. Oh, probably 20 years.
Q. And do you know Terry Nichols?
A. Yes.
Q. When did you meet Terry Nichols?
A. '75.
Q. How did you come to meet?
Susan Simpson - Direct
A. I worked at the Cheese and Wine there --
Q. Let's stop just a minute. What is the Cheese and Wine?
A. I'm sorry. The Cheese and Wine shop is a party store, and
I worked there.
Q. And where? In Lapeer?
A. Yes.
Q. Okay. And do they sell -- cheese and wine I guess, but
what else?
A. It's a small store, and they used to do cheese plates and
meat plates and parties and things like that.
Q. And you were working there?
A. Yes.
Q. When did you start working there?
A. I believe it was '75, the summer of '75.
Q. Who was the owner of the Cheese and Wine store?
A. Rem Currell.
Q. And go ahead -- how did you come to meet Terry Nichols?
A. Terry had been evidently coming in and helping out there
before I started working there, and so he would come in at
night and help close the store and help out when Rem wasn't
there. He was there quite a bit.
Q. And did Rem have some particular concern that led him to
want somebody to be there at night when it was being closed up?
A. Well, the store had been robbed before I started working
there, which is kind of unusual for that area at that time, but
Susan Simpson - Direct
it had been robbed a couple of times. So most of the time, one
of the girls would be left there alone at night, so Terry would
come in a lot and just help out, help close the store.
Q. Did he get a salary for this?
A. No, I don't believe so. It was just a helping out.
Q. How did he work it out with Rem, the owner? What was the
arrangement as you observed it?
A. He -- if Rem went to Florida or something, sometimes the
boys would come in and help out. Maybe he compensated them
then, but otherwise it was just -- it was just a helping-out
situation.
Q. Now, at the time that you met Terry, was the Nichols family
going through some problems?
A. It was, I believe, after his parents' divorce and after
Les's burn incident.
Q. And what -- what was -- did you know that Terry had been to
college?
A. Yes.
Q. And he had come back home?
A. Yes.
Q. And when he wasn't working with you, closing up the Cheese
and Wine shop, what was he doing, having come back from
college?
A. He came back home to help on the family farm.
Q. Have you grown up in farm country?
Susan Simpson - Direct
A. Yes.
Q. And did you observe his relationship with the other members
of his family?
A. Yeah. He was close with his family.
MR. TIGAR: Thank you very much, Ms. Simpson.
I have no further questions.
MR. GOELMAN: No questions.
THE COURT: All right. You may step down. You're
excused.
MR. THURSCHWELL: Call Lana Padilla.
THE COURT: All right.
If you'll resume the stand, you're being recalled
under the oath earlier taken.
THE WITNESS: Okay.
(Lana Padilla was re-called.)
THE COURT: Mr. Woods.
MR. WOODS: Thank you, your Honor.
DIRECT EXAMINATION
BY MR. WOODS:
Q. Good morning, Ms. Padilla.
A. Good morning.
Q. You have testified here earlier in this trial. Is that
correct?
A. Yes.
Q. And you were subpoenaed by the Government to testify?
Lana Padilla - Direct
A. Yes.
Q. And on cross-examination, we went into the information
about you and Terry, the period of your marriage; is that
correct?
A. Yes.
Q. And the employment and the activities of Terry during that
period. That's already been covered; correct?
A. Correct.
Q. What I want to do today is confine my questions to Terry's
role as a father. You had a son; is that correct?
A. Yes.
Q. And the son is Josh?
A. Joshua.
Q. What year was he born? What was his birthday?
A. August 11, 1982.
Q. And the period of your marriage was January, '81, to
December, '89. Is that correct?
A. I'm sorry?
Q. What day were you married on?
A. January 29, 1981.
Q. And your divorce was in December, '89?
A. Yes.
Q. How old were you when you married, Ms. Padilla?
A. I think I was 31.
Q. Okay. And do you recall how old Terry was?
Lana Padilla - Direct
A. I think he was 25 or 26.
Q. And you had two children at that time. Is that correct?
A. Yes.
Q. And the two children were Troy and Barry?
A. Yes.
Q. And what ages were they at that time of the marriage?
A. Barry was 11, and Troy was -- '74 -- seven.
Q. I want to show you what has been marked for identification
purposes as M338 and ask if you have seen that photo -- photo
before.
A. Yes.
MR. WOODS: We would offer into evidence M338.
MR. MACKEY: No objection.
THE COURT: Received.
BY MR. WOODS:
Q. Now, what is the jury seeing here, Ms. Padilla?
A. Terry holding Josh when he was first born.
Q. And that's -- this is in August of '82?
A. Yes.
Q. Now, you mentioned that you had two other sons, and I want
to show you what has been marked for identification purposes as
M397.
MR. WOODS: We would --
BY MR. WOODS:
Q. You recognize that picture?
Lana Padilla - Direct
A. Yes.
MR. WOODS: We would offer into evidence M397.
MR. MACKEY: No objection.
THE COURT: Received.
BY MR. WOODS:
Q. Tell the jury what is depicted in this photograph.
A. That's in the backyard of my grandmother's home in Ubly,
Michigan, and that's Terry playing with Barry and Troy.
Q. Now, these are your two sons from a previous marriage?
A. Correct.
Q. And when you got married to Terry, did the two sons live
with you?
A. Yes, they did.
Q. Would you describe for the jury what Terry's role was in
relation to the two sons that was living with you? Was he
acting as a father, a caring and loving father with them?
A. Yes. Terry was very supportive in his role as a stepfather
with Barry and Troy and tried to instill in them right and
wrong.
Q. Tried to give guidance and teach them things?
A. Very much.
Q. Now, I want to show you what has been marked as M449. Do
you recognize that photo?
A. Yes.
MR. WOODS: We would offer M449 into evidence.
Lana Padilla - Direct
MR. MACKEY: No objection.
THE COURT: Received.
BY MR. WOODS:
Q. Would you tell the jury what they're seeing in this
photograph.
A. It's a vacation in Florida, and it's Josh and Natalie and
me and Terry.
Q. All right. Now, who is Natalie?
A. Natalie is Terry's niece.
Q. Is that Natalie Fisher?
A. Yes.
Q. And that's the daughter of his sister, Susie?
A. Yes.
Q. How old is Josh there?
A. Oh, I don't remember exactly, but probably about a year --
a year. Year and a half.
Q. And this is in Florida?
A. Yes.
Q. Did you take vacations in Florida more than once?
A. Yes. We visited Terry's family and my family occasionally.
Q. After you were married to Terry Nichols, did he expose you
to outdoor activities that you had not participated in before?
A. Yes.
Q. Would you tell the jury what changes you experienced in
your life upon marrying Terry.
Lana Padilla - Direct
A. Well, having been raised on a dairy farm, we didn't do a
lot of family-type outing activities. But when I met Terry, he
was very much into family functions and activities, and he took
me snow skiing the first time -- didn't know how, but I
learned; took me water-skiing, which I didn't know how and I
didn't learn; took me canoeing, volleyball playing, did a lot
of outdoor activities.
Q. And did he involve your two sons in this, Barry and Troy?
A. Yes.
Q. Did he teach them to ski?
A. Yes, and my little brother and sister.
Q. Now, you had some younger brothers and sisters; is that
correct? You were the oldest in the family?
A. Yes.
Q. And describe Terry's role with your younger brothers and
sisters.
A. Well, my brother and sister -- my brother was the same age
as my oldest son, Barry; and so they spent a lot of time with
Terry and I. And everything we included -- he always included
them to go with us on outings; so he was introducing them to a
little different type of social family-type outings.
Q. I want to show you what has been marked for identification
purposes as M400. Do you recognize that photo?
A. Yes.
MR. WOODS: We would offer into evidence M400.
Lana Padilla - Direct
MR. MACKEY: No objection.
THE COURT: Received.
BY MR. WOODS:
Q. Would you tell the jury what they're seeing in this photo.
A. That's Josh and Terry, and it's a Christmas party called
the Walton Christmas party, which is Terry's family. And it's
a pinata that Terry made, a Christmas tree pinata that he made
and filled with candy for the kids.
Q. Was this something that he would do every Christmas?
A. It was pretty much a tradition for Terry to do that.
Q. I want to show you a group photo -- a group of photos
marked as M430. Do you recognize those group -- that group of
photos?
A. Yes. This is another Christmas party.
Q. Okay. Let me move it into evidence first.
MR. WOODS: We would offer into evidence M430.
MR. MACKEY: No objection.
THE COURT: Received.
BY MR. WOODS:
Q. And would you explain to the jury what's depicted in this
group of photos.
A. It's the Walton Christmas party, and it's a different one.
This is where he had made a pinata, a bell for the kids, and we
were just having a -- it was a Christmas party.
Q. All right. And who is depicted in the two right photos?
Lana Padilla - Direct
A. Terry and me.
Q. Okay. And those are the children that attended the party
on the left?
A. Uh-huh, little -- I think one of them is Natalie, and then
there is a number of other little cousins.
Q. Okay. Now, I want to show you what has been marked for
identification purposes as M334. Do you recognize that
photograph?
A. Yes.
MR. WOODS: We would offer into evidence M334.
MR. MACKEY: No objection.
THE COURT: Received.
BY MR. WOODS:
Q. And would you explain to the jury what's depicted in that
photograph.
A. It was a family outing. We drove up to -- across the
Mackinaw Bridge. And that's Terry and Josh and Troy.
Q. Troy is your older --
A. Troy is the middle son.
Q. Okay. Now, Mackinaw Bridge to Mackinaw Island: Where is
that?
A. In Michigan.
Q. Okay.
A. It's north. It's probably a 5-hour drive that we took.
Q. Was this typical of the activities that you and Terry did
Lana Padilla - Direct
with your children?
A. Yes.
Q. And I'll show you what's been marked for identification
purposes as M141. Do you recognize that photograph?
A. Yes.
MR. WOODS: We would offer M141 into evidence.
MR. MACKEY: No objection.
THE COURT: Received.
BY MR. WOODS:
Q. And would you tell the jury what's depicted in that
photograph.
A. Josh.
Q. And?
A. And Terry built a snowman and the dog. And this was in our
home on Lamton Road.
Q. In what city?
A. Cass City, Michigan.
Q. And during the course of your marriage, Ms. Padilla, with
Terry Nichols, you lived in that area of Decker/Cass City the
whole time; is that correct?
A. Correct.
Q. Okay. Now I want to show you what's been marked for
identification purposes as M394. Do you recognize that
photograph?
A. Yes.
Lana Padilla - Direct
MR. WOODS: We would offer into evidence 394.
MR. MACKEY: No objection.
THE COURT: Received.
BY MR. WOODS:
Q. Tell the jury what's exhibited in this photograph.
A. This is -- I believe we were still unpacking our boxes and
moved from one home we sold. This was on the Argyle Road
80-acre farm that we bought, and Josh -- I remember him saying
to Dad, "I'm going hunting."
And he slipped on his little, red rubber boots because
he didn't have time to put on his shoes. And he ran out to the
garden, and all of a sudden he ran in and said he caught a
deer.
Q. Caught a deer?
A. "Got a deer, Dad."
Q. What happened with the deer? What --
A. Well, we got a camera and we took the picture, and then we
let the deer go back with his mother.
Q. Okay. Okay. I want to show you what's marked for
identification purposes as M425. Do you recognize this photo?
A. Yes.
MR. WOODS: We would offer into evidence 425.
MR. MACKEY: No objection.
THE COURT: Received.
BY MR. WOODS:
Lana Padilla - Direct
Q. Explain to the jury what this photo depicts.
A. This was Terry and I and my two older sons, Barry and Troy;
and there was an exchange student that worked on the farm for
my mother and father, and this was a -- going-away party for
him. And we took the kids. Josh was -- Josh was little and he
was not there. He was probably two years old. This was at
night.
Q. Where is this photo taken?
A. In the basement of a -- a restaurant in Cass City,
Michigan.
Q. And this is a family outing?
A. A family function.
Q. With you and Terry and the two sons?
A. And all of my family.
Q. Did Terry include the two sons in everything that he did
with you?
A. Yes.
Q. What is their relationship now with Terry Nichols, your two
sons, Troy and Terry?
A. Troy and Barry?
Q. Barry. I'm sorry.
A. They're -- well, whenever Terry calls and talks with Josh
or me, they like to say hello. He is -- still a very warm and
supportive role he gives them. And the kids think very highly.
And there is -- they have a lot of good to say.
Lana Padilla - Direct
Q. Do they respect and look up to Terry Nichols?
A. Yes.
Q. That is based on their growing up with his supervision?
A. Yes. I think they appreciate it a lot more as they've
gotten older.
Q. Now, when you were married to Terry Nichols, you worked
full-time except for approximately a year that you took off
after Josh was born. Is that correct?
A. Yes.
Q. And who maintained the home and kept the family functioning
and going to school, etc.?
A. Terry did.
Q. What was a typical day like in your family during those
eight years when you were working full-time? How would a day
start and end?
A. For the family, or for me?
Q. For the family that you observed. You, of course, were out
of there early in the morning, I take it. Is that correct?
A. Correct. I would be -- I commuted a lot of times. The
work I did, I might have been on the road. I would travel to
and from, but Terry would always get the kids off to school.
Breakfast was very important.
Q. Who cooked breakfast?
A. If there was -- usually Terry would cook.
Q. What did he normally cook?
Lana Padilla - Direct
A. Healthy. Oatmeal, bran cereal.
Q. Okay. Who cooked the meals by and large for the whole day
and the whole month and the whole year?
A. I would cook on weekends or holidays, but he basically did
most of the cooking.
Q. And this was during the period that you owned the rental
properties?
A. Correct.
Q. And he was maintaining those?
A. Yes, he was.
Q. Okay. Now, did Terry spend a lot of time in self-study?
A. Yes.
Q. And I believe you've already told the jury the number of
licenses that he picked up: A security license and insurance
license?
A. Yes.
Q. What else did you observe Terry do during those days that
you were married to him?
A. Well, he always made sure we had a garden and made sure
that the garden was in control. And the purpose of the garden
and canning -- we canned together usually. He took care of all
of our paperwork. He took care of my paperwork. If I, you
know -- a lot of the administrative things with what I was
doing, he was very well -- he was like my assistant, and I
would turn everything over to him with confidence that he would
Lana Padilla - Direct
take care of it.
Q. And during that time he worked at a grain elevator, managed
a grain elevator; is that correct?
A. There was a period of time, yes.
Q. And a period of time he worked with you selling securities
and insurance; is that correct?
A. Yes.
Q. Now, what did you observe his role to be with Josh, in
raising Josh, his natural son, during that period of time?
A. Full-time. He was a full-time father. He was not an
imaginary father. He was always, always in his own soft-spoken
way teaching Josh with whatever he said. He would always give
him something of substance.
Q. Okay. Now, there came a time when you encouraged Terry to
go into the Army. Is that correct?
A. We were having some difficulties, and there was an Army
recruiter office where my office was at. And I -- I'm not sure
exactly how it all happened, but whatever would make Terry
happy, if that's what he chose to do, I was supportive.
Q. And he went in the Army in May of '88. Do you recall that?
A. Yes.
Q. And then there came a time during that period when he was
in the Army where he came and got Josh so that he could have
Josh in Kansas at Fort Riley with him. Do you recall that?
A. Yes.
Lana Padilla - Direct
Q. Do you recall approximately when that happened?
A. After boot camp.
Q. Okay. Boot camp was four months. So that would be
September or October of '88? Is that correct?
A. I think so.
Q. Now, what caused that to happen, Ms. Padilla? Why did
Terry need to come and get Josh to take him to Kansas?
A. I was working a lot. I had an office that was 50 miles
from our home, and everything that was -- everything that Terry
was taking care of, I was taking care of then. And also, one
of the -- one of the main reasons was that my oldest son was
recovering from drug use, drug rehab.
Q. Okay.
A. And he didn't really want Josh around that. And also, I
was working a lot.
Q. Was this a mutual decision of you and Terry for Josh to go
to Kansas?
A. It was a difficult decision, but it was mutual.
Q. Okay. And Terry stayed in Kansas until May, '89. Do you
recall that?
A. Yes.
Q. And do you recall that he received a hardship discharge?
A. Yes.
Q. Okay. And you probably haven't seen the Army records of
that discharge, have you?
Lana Padilla - Direct
A. No, I haven't.
MR. WOODS: May it please the Court, we would offer
into evidence the military records reflecting the discharge of
Terry Nichols of May 15, '89. And that exhibit is M43, M40,
M37, M42, 41 and 44. Those are the Army records of Mr. Nichols
provided to us by the Government that we'd offered into
evidence.
MR. MACKEY: We have no objection.
THE COURT: All right. They're received.
BY MR. WOODS:
Q. Ms. Nichols, I'm not going to go through each of these.
The jury will have them for examination. But do you recall
that Terry received an honorable discharge in May, '89, and
came back to Michigan?
A. Yes.
Q. And where did he live at that time when he came back?
A. On the farm on Argyle Road, on our place.
Q. And whose house was that?
A. It was our home.
Q. And who lived with him at that time?
A. My son Troy.
Q. And Josh?
A. And Josh, yes.
Q. Now, did he raise and supervise Troy there for a period of
a year or so?
Lana Padilla - Direct
A. He -- Troy stayed with Terry pretty much until he graduated
from high school.
Q. He wanted to stay in that area so that he could continue
his schooling?
A. Yes.
Q. And Terry supervised and acted as a father to him. Is that
correct?
A. Yes, he did. Yes.
Q. During that time, did you observe that he was a loving and
caring father to Troy?
A. Yes.
Q. And what about Josh?
A. Yes.
Q. And I take it that that has been the case from '89, when
you got your divorce, up until Terry's arrest in '95 -- April,
'95. Is that correct?
A. As far as supportive of Josh?
Q. Yes.
A. Yes.
Q. And was there ongoing discussions between you and Terry
Nichols about Josh coming to Kansas in the summer of '95 to
live with Terry and Marife?
A. When Terry expressed his buying a home, there was
discussion at that point. Not a lot of dialogue but discussion
that maybe Josh could come and live with him again.
Lana Padilla - Direct
Q. And were you going to leave that decision up to Josh?
A. We were going to leave it up to Josh.
Q. What did you feel Josh would want to do?
A. Live with his father in the country, small town.
Q. And at that time, you were living in Las Vegas. Is that
correct?
A. Yes.
Q. Now, since Terry's arrest, has he kept up his contact with
Josh?
A. Yes.
Q. How has he done that?
A. Phone calls. Phone calls, letters, and visits.
Q. How many times have you been able to bring Josh to where
Terry is, either in El Reno prison in Oklahoma, or the federal
prison here in Denver?
A. We visited Terry in El Reno, and we also visited Terry in
Denver at Englewood. I don't know how many times, but yes, we
have -- we have visited him personally.
Q. And that's something you've wanted to do on behalf of Josh;
is that correct?
A. Yes.
Q. As to the phone calls, can you or Josh call Terry in
prison?
A. No.
Q. You have to receive the call from him?
Lana Padilla - Direct
A. Yes.
Q. Are those collect calls?
A. Yes, they're collect.
Q. And have you borne that cost?
A. Yes, I have.
Q. And tell the jury why you have done that and want to do
that?
A. I think it's -- it's very important because of the
relationship as far as the divorce. It's important that Terry
and Josh be able to communicate. And Josh has a separate phone
line, therefore, that Terry can call in on if he chooses, and
he doesn't really have to communicate to anybody else. But he
chooses to call on the main line and talks to all of us. But
it's important, because Terry was not an imaginary father and
Josh -- Terry is the most important person in Josh's life.
Q. How frequently does Terry call Josh?
A. On an average, a couple times a week.
Q. Okay. And has that been going on for the two-and-a-half
years since his arrest?
A. Yes.
Q. And you're aware of that because you're at the home. Is
that correct?
A. Yes.
Q. And do you often talk to Terry Nichols during that time?
A. Yes.
Lana Padilla - Direct
Q. And are you aware that those phone calls are recorded?
A. Yes. Sometimes I forget that; but yes, I do know they're
recorded.
Q. You mentioned that Terry writes letters to Josh. Is that
correct?
A. Yes.
Q. And have you seen those letters?
A. Yes.
Q. Have you kept each letter?
A. Yes.
Q. And tell the jury why you're keeping all those letters.
A. Josh reads them and then sets them down, and I know that in
his heart he would like to be able to reread them; so I keep
them all and at times will reflect on them and look at them,
basically for Josh.
Q. And there have been a number. Is that correct?
A. Yes.
MR. WOODS: May I approach, your Honor?
THE COURT: Yes.
BY MR. WOODS:
Q. Ms. Padilla, I'm not going to have you read all of them,
but there are three letters here that I would like to move into
evidence.
MR. WOODS: And we would offer into evidence M143,
142, and 183, along with a drawing, which is 185.
Lana Padilla - Direct
MR. MACKEY: No objection.
THE COURT: The exhibits are received.
BY MR. WOODS:
Q. Ms. Padilla, if you would open the first one that's on top
there.
A. Okay.
Q. What's the date of that letter?
A. November 28, 1995.
Q. That's approximately five, six months after his arrest?
A. Yes.
Q. And it's a one-page letter?
A. Front and back.
Q. It's just that one in the right hand I want to read.
MR. WOODS: We would ask that the witness read the
letter, your Honor.
THE COURT: All right. You may do so.
THE WITNESS: Okay.
"Josh, just a short note to say hi and how are you
doing. I hope you take -- you try your best in school to get
along with all your teachers. I think it would be best if you
continue going to school rather than someone teach you at home
unless you can find a good person to teach you. Remember that
home school, you aren't with others, and during breaks there is
no one to play with or talk to your age.
"Even if school is a bit boring, you should try to
Lana Padilla - Direct
learn all you can in math, reading and writing. History is
important, too. Everyone needs to know the three Rs real well.
Those will get you through life. Without them, life is darn
tough. I'm glad I know how to read well, but I'd like to be
able to read even faster. It sure helps pass the time by while
sitting in here waiting for the trial, plus one can learn a
great deal by reading. Reading helps expand your mind. It
helps you to grow inside.
"Math, good knowledge of math is important so that you
don't get taken when dealing with people; and it comes in real
handy when you need to figure out problems, distance,
measurements, change, etc.
"Writing is needed so no" (sic) "one can write
important details down so as not to forget them, and good
spelling helps in writing so people know what you're writing.
"You got a very powerful tool on top of your
shoulders, and you need to use it. Otherwise, it's just
wasted. If you really want to do something for me, the best
and most important thing you can do is learn well your math,
reading and writing. That is what would make me most proud of
you, Josh. You know you have it in you. You just need to
apply yourself. Put good effort into it. It's just like"
reading -- excuse me "-- riding a bike. It's difficult at
first, but with a little practice and ambition you learn to
ride and enough -- you to ride and enough of it.
Lana Padilla - Direct
"The same can happen with school. If knowledge
through reading, writing and arithmetic were not that
important, I certainly wouldn't keep talking about it to you.
It's essential.
"Well, enough on that. Oh, one other thought, though.
It's also very important to -- one other thought. It's also
very important to learn to respect people, especially adults.
They have been around much longer than you have, and they went
through most everything you have, so generally, the adults are
talking from experience and to try -- and trying to help you
avoid some of the mistakes they have. Listen to them.
"Enclosed are some comics and other articles for you
to read. Take the time to read them. It certainly won't hurt
you. I'll ask you about them this coming Sunday when I call.
Surprise me, and you tell me about them before I ask you.
"Are you going to be going out for football again this
year? Hey, write me another letter. The last one was great.
You did well at spelling and writing. Keep it up. Shoot me
out another letter.
"Well, got to go. Keep your chin up. I love you,
Dad.
"This is longer than I planned. Some short note."
BY MR. WOODS:
Q. All right. Now, the next folder that I handed you has a
yellow page in it. What is the exhibit number on the folder?
Lana Padilla - Direct
A. 142.
Q. And that's a short, half-page letter?
A. Yes.
MR. WOODS: We ask to read that, your Honor.
THE COURT: All right. You may.
THE WITNESS: This is Tuesday, September 26, 1995.
"Josh, enclosed is an article about three baseball
players. I thought this story --" might "-- may interest you.
Hey, where is that letter you said you would write to me? You
must be writing one heck of a letter if it's taking this long
to get here. It doesn't have to be long. Just one page is
fine."
Are making -- "Are you making use of that gym after
school, or have all the girls got you preoccupied and busy
catering to them?
"Also enclosed is a comic you may get a laugh at. I
may cut this letter short because I want to get it out today
and Mr. Morris will be stopping by any minute. He's here now.
Keep your chin up. Love you, Terry."
BY MR. WOODS:
Q. And then the last letter is 183; is that correct?
A. Yes.
Q. I ask that you read that.
MR. WOODS: And first, your Honor, I want to publish a
drawing that's referred to in this letter. It's been admitted
Lana Padilla - Direct
into evidence.
THE COURT: All right.
BY MR. WOODS:
Q. Go ahead and read the letter.
A. This is written March 20, 1997.
"Josh, enclosed you will find a drawing. Tell me if
it reminds you of a past event that you may remember. I may
not have all the details of exactly how things were, so you
will have to forgive me if that's -- if that's any
inaccuracies. That rabbit that saw the whole thing was hard to
understand, so I'm doing the best I can.
"As far as the drawing looking like you, well, I'm
just not that good yet, so you will have to accept a generic
look, just like the deer and the rabbit.
"I also thought you may enjoy the drawing, since we
have no photo of that time. That's usually what happens,
though, isn't it? No camera for that special shot.
"By the way, how are things going?
"I've been waiting for your letter a long time, so I
decided to write you again. Maybe you can send a drawing to me
of something that you remember. Don't worry about how good it
looks. Drawing, like anything, takes some time and practice.
"Try it, though. You may have a talent that you don't
know about. Just try to picture in your mind what it looks
like and go slow. And be sure you have a large eraser. First
Lana Padilla - Direct
lightly sketch what you want, then go over it with a darker
line. Don't worry if you have to -- have no colored pencils or
markers. A simple No. 2 pencil can work well. One can get
many different shades with a pencil.
"Well, this letter will be short, but send me
something. I'll be waiting. I'll talk to you soon by phone.
Be good, Josh. I love you. Take care. One of these days,
we'll have to go hunting again."
Q. Now, these three letters which were sent among the many
that you have: Is that typical of the type of letters that
Terry would write to Josh?
A. Yes.
Q. Was he trying to maintain his fatherly role?
A. Yes.
Q. And supervising and encouraging Josh?
Have you noticed that he has done that for the past
two-and-a-half years?
A. Absolutely.
Q. Is that any change from what he had done for the prior 13
years of Josh's life?
A. No.
Q. I want to show you what's been marked for identification
purposes as M698 and ask if you have seen this item before.
A. Yes. It's Josh -- yes, I have.
MR. WOODS: We would offer into evidence M698, your
Lana Padilla - Direct
Honor.
MR. MACKEY: No objection.
THE COURT: Received.
BY MR. WOODS:
Q. And what is this, Ms. Padilla?
A. It's a birthday card Terry made for Josh on his 15th
birthday.
Q. Which was when?
A. August 11, this year.
Q. And has Terry sent cards to you and to Josh during this
period of time?
A. Yes.
Q. Are these cards that he's drawn and made himself?
A. Yes.
Q. Let me see if you can -- can you read that?
A. Yes. August 11, 1997.
"Joshua, just a simple note to say happy birthday. I
wish you well on this special day. May the days and years
ahead bring you joy and happiness. Though I'm not with you at
this time, you are always in my thoughts. Keep in mind that
you can succeed in anything you put your mind to. And
remember: What a man thinks, so is he. So keep good thoughts
always. Love, Dad."
Q. Now, when you were married to Terry, did you have a group
photo made of you and Josh and your two sons?
Lana Padilla - Direct
A. Yes.
MR. WOODS: If I may approach.
THE COURT: Yes.
BY MR. WOODS:
Q. I'm going to show you what's been marked for identification
as M357. Do you recognize that?
A. Yes.
MR. WOODS: We would offer into evidence M357.
MR. MACKEY: No objection.
THE COURT: Received.
BY MR. WOODS:
Q. Would you point out to the jury who is depicted in this
large group photo.
A. This is Terry Nichols. This is me. This is Barry, my
oldest son. Troy and Josh.
Q. Now, are all the boys living with you now, Ms. Padilla?
And Josh is. And where is Troy?
A. They're all living with me.
MR. WOODS: Thank you, your Honor. No further
questions.
THE COURT: Mr. Mackey, do you have some questions?
MR. MACKEY: Just a very few, your Honor.
MR. WOODS: Thank you.
CROSS-EXAMINATION
BY MR. MACKEY:
Lana Padilla - Cross
Q. Ms. Padilla, I have just a few questions for you, if you
don't mind.
Mr. Woods showed you and you read to the jury three
letters, all dated since the time of Mr. Nichols' arrest.
Correct?
A. Right.
Q. And I heard him represent that there are others like those
of similar nature that you didn't produce today; is that
correct?
A. There is other letters, correct.
Q. And those are all letters that were written since the time
of his arrest?
A. Yes.
Q. Did you search for any correspondence, any written letters
from Terry Nichols to Josh that were written between the period
September of '94 and April of '95?
A. No. I don't remember any correspondence; but I might not
have saved them, either.
Q. As you sit there now, you have no recollection of a
frequent routine, series of letters being sent by Mr. Nichols
to Josh?
A. There were phone calls but no letters I remember.
Q. You told the jury that as you observed Terry Nichols and
his relationship with Josh, one important goal was that he
teach Josh something of substance. Was that your testimony?
Lana Padilla - Cross
A. Yes.
Q. In the summer of 1994, do you remember that Terry Nichols
was living with Marife Nicole in Marion, Kansas?
A. He was there for a short time in the summer of '94. Not
very long.
Q. Mr. Nichols was living in Marion, Kansas, during that time
period?
A. Yes. I thought you meant Josh.
Q. That was my question. In fact, Josh did go out to Marion,
Kansas, and spent some time on the Donahue Ranch; correct?
A. Yes.
Q. The plan was initially to spend some time during the
summer, at least through his birthday on August 11?
A. I think so.
Q. The plans changed and he came home early?
A. He came home early.
Q. That was a result of some conflict that developed within
the Nichols household; correct?
A. Terry was working very long hours, and Josh was in the
house with Marife a lot; and it just -- it just was
conflicting.
Q. I see. When Josh came home, though, you learned about what
he had done with his father during the time he did spend with
him at the Marion farm; correct?
A. Not really. No. Josh didn't -- we didn't really talk
Lana Padilla - Cross
about what he did, no.
Q. Did you learn, Mrs. Padilla, at any point in time that part
of what Mr. Nichols spent his time with during that summer in
1994 with his son Josh was building small explosives?
A. During the summer of '94?
Q. Yes.
A. I never heard that, no.
Q. How about previously in 1993 during his stays in Michigan?
A. The first time I heard anything -- no. The first time I
ever heard anything about building any type of bottle bombs was
when the FBI asked us.
Q. But you know, do you not, Mrs. Padilla, that part of what
Mr. Nichols taught his son was how to build bombs?
A. I don't know that firsthand, but that's what I have been
told.
Q. You understand that from Josh.
A. We don't talk about -- I only heard it asked by the FBI to
Josh.
Q. Did you hear Mr. -- Josh Nichols respond, "Yes, we did
that"?
A. He talked about it, yes.
MR. MACKEY: Thank you.
MR. WOODS: Nothing further, your Honor.