The Oklahoma City Bombing Trial Transcripts
Terry Nichols
Thursday, October 30, 1997 (afternoon)
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 55)
Proceedings before the HONORABLE RICHARD P. MATSCH,
Judge, United States District Court for the District of
Colorado, commencing at 1:45 p.m., on the 30th day of October,
1997, 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
Juror No. A1 - Voir Dire
APPEARANCES
PATRICK RYAN, United States 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, and ADAM THURSCHWELL,
Attorneys at Law, 1120 Lincoln Street, Suite 1308, Denver,
Colorado, 80203, appearing for Defendant Nichols.
* * * * *
PROCEEDINGS
(Reconvened at 1:45 p.m.)
THE COURT: Be seated, please.
I have now excused the persons who were the -- excused
by peremptory challenges and explained to them about peremptory
challenges. And I have explained to the remaining persons what
our process will be here, so we're ready to proceed with A1.
(Juror No. A1 was recalled.)
VOIR DIRE EXAMINATION
BY THE COURT:
Q. Good afternoon. If you'll be seated in the chair where you
were several weeks ago, I have just a couple of questions to
ask of you. Consider that you are still under the oath that
Juror Nos. A1 and A2 - Voir Dire
you took with us several weeks ago when you came in and
answered questions. And I just want to ask you a couple of
things now.
Since you were here with us before, have you read,
seen, heard, or experienced anything that might in any way
affect your ability to serve as a juror in this case?
A. No.
Q. So may we now rely on your assurance that you will give
fair and impartial consideration to the evidence in this case
and make your decision according to the law and the evidence?
A. Very much so. Yes.
THE COURT: All right. You may step out.
And we'll proceed with A2.
(Juror No. A2 was recalled.)
VOIR DIRE EXAMINATION
BY THE COURT:
Q. Good afternoon. We ask you to consider that you are still
under the oath that you took when you came in before and were
in that chair several weeks ago and answered all those
questions we had for you then.
I have just two questions for you now; and that is
since you were here with us before, have you read, seen, heard,
or experienced anything that might in any way affect your
ability to serve as a juror in this case?
A. No.
Juror Nos. A2 and A3 - Voir Dire
Q. And may we now rely on your assurance that you will give
fair and impartial consideration to the evidence in this case
and to make your decision according to the law and the
evidence?
A. Yes.
THE COURT: Thank you. You may step out.
A3.
(Juror No. A3 was recalled.)
VOIR DIRE EXAMINATION
BY THE COURT:
Q. Good afternoon.
A. How are you doing?
Q. Well, I'm just fine. How are you?
A. Doing good. Doing good.
Q. Now, we ask you to consider that you are still under the
oath that you took with us several weeks ago when you were here
answering many questions.
And what I want to ask you now is that since you were
here with us before, have you read, seen, heard, or experienced
anything that might affect in any way your ability to serve as
a juror in this case?
A. You mean as far as newspapers and news?
Q. No, anything at all.
A. Well, my wife is no longer going to be employed as of
tomorrow. That's kind of a big thing.
Juror No. A3 - Voir Dire
Q. It is indeed. And we discussed when you were here before
the financial situation and what may be involved with one of
you being out.
A. Yeah.
Q. And this was an unexpected termination of her employment, I
take it.
A. Correct. Correct.
Q. And is she looking for a job now?
A. She's going to start Monday.
Q. Start looking?
A. Yeah, for a job Monday.
Q. And, of course, you don't know what the prospects are?
A. I'm not real up to date on today's job market.
Q. Job market.
A. Yeah.
Q. So have you talked with her about that?
A. Oh, yeah. She's, you know -- she's pretty worried that,
you know -- what would happen if I was picked as far as, you
know, our family and, you know, stuff like that. I mean, it
would be pretty stressful, to put it mildly.
Q. Okay.
A. I mean, I -- $40 a day, if I'm not correct --
Q. It is for the first 30 and then $50 a day.
A. Yeah, which is not even minimum wage, but --
Q. That statute doesn't apply to the jury. The same people
Juror No. A3 and A4 - Voir Dire
who made the statute also made the jury fees, the Congress.
Well, has there -- we're not discarding or
disregarding what you've just told us. Has there been anything
else that happened that in any way would affect your ability to
serve?
A. No, as far as, I mean, me seeing and hearing stuff.
Q. Okay. Separately now from the issue of financial hardship,
will we be able to rely on your assurance that you can give
fair and impartial consideration to the evidence in the case
and make your decision according to the law and the evidence?
A. Yeah. I mean, it would be kind of tough.
Q. Because you're worrying about the --
A. Exactly.
Q. -- finances. Well, I wanted to set that aside for the
moment for purposes of asking that question. Now, we're not
disregarding it. So what I'm going to ask you to do is join
with the others, and we'll get back to you.
A. Okay.
THE COURT: Thank you.
A4.
(Juror No. A4 was recalled.)
VOIR DIRE EXAMINATION
BY THE COURT:
Q. Good afternoon.
A. Good afternoon.
Juror No. A4 - Voir Dire
Q. We want you to consider yourself still to be under the oath
that you took when you were here before several weeks ago and
were then under oath and answered all those questions that we
put to you.
And what I simply want to ask you now is that since
you were here with us before, have you read, seen, heard, or
experienced anything that might in any way affect your ability
to serve as a juror in this case?
A. No, but there was one thing that I forgot to put down.
Q. Go ahead.
A. I really feel dumb for not putting it down, too. I am
24-hour conservator for my mother, and just this week I've been
called three times. And she's in a nursing home.
Q. Yes.
A. And if she has to go to the hospital or if there is any
problems -- I was there this morning for an hour and a half.
Q. And what do you have to do? Like this morning, what did
you have to do?
A. Well, she's decided that the nursing home is her house and
every closet is hers and every bed is hers and every toothbrush
is hers; and if somebody gets in her way, she's going to knock
them down.
Q. I see.
A. So the only one she really listens to is me. She won't
even talk to her sister, so I had to go down there and calm her
Juror No. A4 - Voir Dire
down. They're going to move her into a different area where
the people are less mobile.
Q. Okay.
A. So hopefully that's going to solve that problem, but -- I
had her on 24-hour live-in for a year, and I was called six or
seven times a day then. When I got her in the nursing home, I
thought that that was it. I guess that's the only reason why I
forgot her, is I thought I had her solved.
Q. I understand.
A. I apologize for neglecting to put that down.
Q. This is why we ask people to come back in, to double-check
on what has happened.
How many times -- take from the time -- well, when did
she go into the nursing home?
A. She went in the first of May.
Q. Okay.
A. And then she broke her wrist the end of May over the
holiday. Nobody was in town, so they had to send her by
ambulance to Lutheran Hospital, which was five minutes away and
was a thousand dollars both ways because they have no
facilities to take them to the hospital if anything were to
happen.
Q. Uh-huh.
A. Then right after I was here -- that's what brought it to
mind -- she was fighting them taking a bath, and she bruised
Juror No. A4 - Voir Dire
her right leg so bad that we had to take her into the hospital
to find out whether she had blood clots.
Q. Uh-huh.
A. And this time here it's because of fighting. She's 84.
Geez.
Q. No -- you know, this is a serious matter for you, and we
appreciate that; so has there been, since you were here last,
what, two times that you had to go out?
A. I've been called four times, and I've had to go out one --
twice.
Q. All right.
A. Once to take her to the -- to St. Anthony's -- and I did
that after work and was able to get the appointment after work.
Q. Now, if you were here with us, you know, first we would
have an arrangement, a number for those folks out there to call
and a way to get in touch with you.
A. Anyplace -- anytime I go anyplace, I always have to leave a
number.
Q. We can arrange that. And if need be, we can also arrange
transportation for you to get there in a hurry. And, you know,
time -- whatever it takes to resolve the problem and then get
back here. And I think the only -- so that seems to me to be
something we could accommodate your need for and her need. We
would also, though, want to know whether her care and all that
would be on your mind such that it would distract from your
Juror No. A4 - Voir Dire
ability to focus on the evidence here.
A. I don't think her -- all those jobs that I work. I really
worry about falling asleep. That's the one thing, you know,
because I know -- reading with kids every now and then, I'm
nodding off even at school because usually this is the worst
time for my sewing, because of Christmas coming on. And I do
the football jackets. I sew all the emblems and stuff on the
football jackets, and I've done -- since Wednesday I've done 65
coats, and I've not been to bed before 11:30 now.
Q. Well, you'd have to change your schedule.
A. I know. I'd have to change my schedule. That's --
Q. We don't expect you to be here all day and be sewing all
night.
A. All night. But, see, I don't get paid for that unless I do
them, you know --
Q. Are you right in the middle of a contract for that?
A. No. You know, I'm contracted labor, and they --
Q. So you work by the piece?
A. Right.
Q. But if you didn't put out that particular piece or those
pieces, you don't get paid for it, but you don't get sued for
the failure to perform the contract?
A. No, uh-uh. They would just have to try and find somebody
to take my place.
Q. Yeah.
Juror No. A4 - Voir Dire
A. And usually from August to December, I do about 1500 coats.
Q. Well, if you serve on this jury, you won't be able to do
that.
A. That's true.
Q. And then we discussed these jobs and your financial
situation when you were here with us before.
A. Uh-huh.
Q. And I believe you told us before that you could manage.
A. I was hoping that, you know -- that I would be able to --
to be able to get as much sewing in, but these kids have got so
much stuff. Sometimes they have more chenille -- price of
chenille on a jacket than the coats. The coats are $150, and
they can have $210 worth of chenille put on a coat; and it's
taking -- where it used to take 30 minutes to do a coat, it's
sometimes taking an hour and a half to do a coat. It is
just -- it's just taking me so much longer to do things.
That's why I'm not going to be able to do as many as I had
hoped I could do.
Q. What were you planning to do before with respect to this?
A. I was trying to keep up as much as I can. I can usually
get 12 a day done because I get home at 2:30, start sewing at
2:30.
Q. That won't be your schedule.
A. I know that won't be my schedule, no.
Q. Right. And, you know, we want to know exactly what the
Juror Nos. A4 and A12 - Voir Dire
situation is; but I think we've been relying on your telling us
that you can serve on the jury.
A. Uh-huh. It's going to be very hard, yeah. Financially,
it's going to be very hard.
Q. All right. Well, apart from that, can you assure us that
you'd be able to give us fair and impartial consideration to
the evidence in the case and to make your decision according to
the law and the evidence?
A. Yes, I could.
THE COURT: Okay. We'll ask you to step out now and
join the others.
JUROR: Out this door here?
THE COURT: Yes.
A12.
(Juror No. A12 was recalled.)
VOIR DIRE EXAMINATION
BY THE COURT:
Q. Good afternoon.
A. Good afternoon.
Q. And we ask you to consider that you're still under the oath
that you took when you were here before sometime back. And I
just have a couple of questions for you now, and that is since
you were here with us before, have you now read, seen, heard,
or experienced anything that might in any way affect your
ability to serve as a juror in this case?
Juror Nos. A12 and B2 - Voir Dire
A. No, I haven't.
Q. And may we now rely on your assurance that you will give
fair and impartial consideration to the evidence in this case
and to make your decision according to the law and the
evidence?
A. Yes.
THE COURT: All right. Thank you. We'll ask you to
step out now while we ask questions of a few more people.
Thank you.
JUROR: Okay. Good afternoon.
THE COURT: B2.
(Juror No. B2 was recalled.)
VOIR DIRE EXAMINATION
BY THE COURT:
Q. Hello again.
A. Hi.
Q. We ask that you consider yourself to be still under the
oath that you took with us several weeks ago when you were
here, took the oath, and answered many questions.
A. Okay. Yes, sir.
Q. And now I just have two questions to ask of you.
A. Okay.
Q. And first, we want to know since you were here with us
before, have you read, seen, heard, or experienced anything
that might in any way affect your ability to serve as a juror
Juror Nos. B2 and B3 - Voir Dire
in this case?
A. No, sir.
Q. And may we now rely on your assurance that you will give
fair and impartial consideration to the evidence in this case
and to make your decision according to the law and the
evidence?
A. Yes, sir.
THE COURT: Thank you. You may step out now.
JUROR: Thank you.
THE COURT: We'll be talking to you in a few minutes.
B3.
(Juror No. B3 was recalled.)
VOIR DIRE EXAMINATION
BY THE COURT:
Q. Good afternoon. And we ask that you consider yourself now
once again to be under the oath that you took when you were
here before several weeks ago and answered all those questions
we had for you then.
Only have two for you now.
A. Okay.
Q. The first of which is: Since you were here with us before,
have you read, seen, heard, or experienced anything that might
in any way affect your ability to serve as a juror in this
case?
A. No. I only --
Juror No. B3 - Voir Dire
Q. And may we now rely on your assurance that you will give
fair and impartial consideration to the evidence in this case
and to make your decision based on the law and the evidence?
A. Yes, I have. The only -- the only thing that has changed a
little is my financial situation.
Q. Tell us about that.
A. Well, I -- my wife and I sat down and were figuring it out
last night; and I'm afraid if I lose my overtime, I don't know
if I'm going to be able to make my house payments and stuff
is -- you know, we kind of figured it out before and thought
there would be enough. But then we got to figuring it's about
a 3- or $400-a-month drop. That's the only thing I was worried
about, so . . .
Q. And you were what -- when you were here before, you hadn't
put pencil to paper?
A. We kind of figured it would be okay; but then when we got
to thinking about the overtime I would lose was the only -- you
know, we just hadn't really got into that. We just didn't
really think about that because I've always worked overtime and
it had always been there and we didn't -- because it had always
been there no matter what and so -- but I didn't even think
about it, to tell you the truth.
Q. What is the arrangement with your employer?
A. As far as --
Q. As far as jury service.
Juror No. B3 - Voir Dire
A. As far as I know, he was going to go ahead and pay my
regular -- my -- on top -- you know, he would make up the
difference.
Q. You don't lose your regular -- lose any regular time?
A. No, uh-uh.
Q. You would lose overtime?
A. Yeah.
Q. For whatever -- how much overtime did you -- in hours did
you work?
A. I average anywhere from 400 to 700 a year.
Q. In hours or --
A. Yeah. In hours.
Q. Well, you know, is this a time of year when you have
particularly more overtime than other times?
A. No, not really.
Q. It's pretty much --
A. Pretty much steady, always about the same. The only
difference this time of the year is we work like the Bronco
games, that kind of stuff.
Q. Do you have an arrangement where you could work like Friday
afternoons or something like that?
A. I can talk to him about that.
Q. You see, this is -- you do have Friday afternoons off.
A. Yes.
Q. And of course, the weekends are off.
Juror Nos. B3 and B6 - Voir Dire
A. Yes.
Q. Now, that isn't -- we're not suggesting you work every
minute that you're not here, either. You need rest and
relaxation, too. But those things are possibilities for you.
A. Yes. Well, I could talk to them about that. That wouldn't
be a problem.
Q. Okay. Well, we'd appreciate it if you'd do that and work
it out.
A. Okay.
Q. Because, you know, we have to rely on what you've told us.
A. Yes.
THE COURT: Okay. You can step out.
B6.
(Juror No. B6 was recalled.)
VOIR DIRE EXAMINATION
BY THE COURT:
Q. Good afternoon.
A. Hi.
Q. Now, you were here several weeks ago, and we want you to
consider that you're still under the oath that you took then.
A. Okay.
Q. And, of course, we relied here on the answers that you gave
us then and on your questionnaires. And I just have a couple
of additional questions now since it's been a while since we've
seen you. And the question is: Since you were here with us
Juror Nos. B6 and B11 - Voir Dire
before, have you read, seen, heard, or experienced anything
that might in any way affect your ability to serve as a juror
in this case?
A. Not at all.
Q. And may we now rely on your assurance that you will give
fair and impartial consideration to the evidence in this case
and make your decision according to the law and the evidence?
A. Yes, sir.
THE COURT: Thank you. We'll ask you to step out, and
we'll be seeing you again in a few minutes.
JUROR: Okay.
THE COURT: B11.
(Juror No. B11 was recalled.)
VOIR DIRE EXAMINATION
BY THE COURT:
Q. Good afternoon.
A. Good afternoon.
Q. You were with us several weeks ago in this same chair and
answered a number of questions for us, and I want you to
consider that you're still under the oath that you took on that
day. And, of course, we have relied on the question -- on the
answers that you have given to us and in the questionnaire as
well. And I just have a couple of additional questions for you
now.
And first, since it has been several weeks since you
Juror Nos. B11 and C11 - Voir Dire
were with us before, have you read, seen, heard, or experienced
anything that might in any way affect your ability to serve as
a juror in this case?
A. No.
Q. And may we rely now on your assurance that you will give
fair and impartial consideration to the evidence in this case
and to make your decision according to the law and the
evidence?
A. Yes.
THE COURT: Thank you. You may step out, and we'll
talk with you again in a few minutes.
C11.
(Juror No. C11 was recalled.)
VOIR DIRE EXAMINATION
BY THE COURT:
Q. Good afternoon.
A. Good afternoon.
Q. You were here a couple of weeks ago, took an oath and
answered a lot of questions; and we'd like you to consider now
that you're still under that oath. And we, of course, have
been relying on what you told us in your answers and in the
questionnaire. And I just have a couple of additional
questions now, since it has been some time since you were here
before.
I just want to ask you since you were here, have you
Juror Nos. C11 and D6 - Voir Dire
read, seen, heard, or experienced anything that might in any
way affect your ability to serve as a juror in this case?
A. No, sir.
Q. So may we now rely on your assurance that you will give an
impartial consideration to all of the evidence in the case and
to make your decision according to the law and the evidence?
A. Yes, sir.
THE COURT: All right. We thank you. You may step
down.
D6.
(Juror No. D6 was recalled.)
VOIR DIRE EXAMINATION
BY THE COURT:
Q. Hello again.
You're seated where you were a couple of weeks ago.
At that time, you took an oath and answered a lot of questions
for us, and we appreciate that. Consider that you're still
under that same oath.
A. Yes, your Honor.
Q. And we, of course, have relied on what you told us before.
Now I just have a couple of additional questions for you.
One is that since you have -- since you were with us a
couple of weeks ago, have you read, seen, heard, or experienced
anything that might in any way affect your ability to serve as
a juror in this case?
Juror Nos. D6 and D11 - Voir Dire
A. No, your Honor.
Q. And may we now rely on your assurance that you will give
fair and impartial consideration to all of the evidence in the
case and to make your decision according to the law and the
evidence?
A. Yes.
THE COURT: Thank you. You may step out now, and
we'll talk to you again in a few minutes.
D11.
(Juror No. D11 was recalled.)
VOIR DIRE EXAMINATION
BY THE COURT:
Q. Good afternoon again.
A. Good afternoon.
Q. You were here a while back and were seated there, took an
oath to answer questions -- you did. We appreciate that. We
rely on the answers that you've given to us, of course, under
oath; and we want you to consider that you're still under that
oath.
And all I want to do is ask you two questions; and
that is since you were here with us before, have you seen,
read, heard, or experienced anything that might in any way
affect your ability to serve as a juror in this case?
A. No, sir.
Q. And may we now rely on your assurance that you will give
Juror Nos. D11 and D12 - Voir Dire
fair and impartial consideration to all of the evidence in the
case and to make your decision according to the law and the
evidence?
A. Yes, sir.
THE COURT: Thank you. You may step out now, and
we'll have you back in a little bit.
D12.
(Juror No. D12 was recalled.)
VOIR DIRE EXAMINATION
BY THE COURT:
Q. Hello again.
A. Hello.
Q. You were here seated where you are now a couple weeks ago,
took an oath, answered a lot of questions. And we've relied on
what you've told us, and now I just have a couple more
questions. And consider that you're still under the oath that
you took then.
And just tell us since it has been a while since you
were here with us, have you read, seen, heard, or experienced
anything that might in any way affect your ability to serve as
a juror in this case?
A. No, I haven't.
Q. And may we now rely on your assurance that you will give
fair and impartial consideration to all of the evidence in the
case and to make your decision based on the law and the
Juror Nos. D12 and E3 - Voir Dire
evidence?
A. Yeah. Yes.
THE COURT: All right. You may step out now, and
we'll have you back in a few minutes.
D12 (sic).
(Juror No. E3 was recalled.)
VOIR DIRE EXAMINATION
BY THE COURT:
Q. Good afternoon.
A. Good afternoon.
Q. You recall being here a while back, seated where you are
and answering a number of questions under oath. And we want
you to consider that you're still under oath and to recognize
that we've relied on the things that you've told us.
And I just have two more questions.
A. Okay.
Q. One is since it has been several days since you were here
with us, have you read, seen, heard, or experienced anything
that might in any way affect your ability to serve as a juror
in this case?
A. No, sir.
Q. And may we now rely on your assurance that you will give
fair and impartial consideration to all of the evidence in this
case and to make your decision according to the law and the
evidence?
Juror Nos. E3 and E4 - Voir Dire
A. Yes, I will, sir.
THE COURT: All right. You may step out now. We'll
be talking with you in a few minutes.
Is it E4 I'm on?
MR. ORENSTEIN: Yes.
THE COURT: Yes.
(Juror No. E4 was recalled.)
VOIR DIRE EXAMINATION
BY THE COURT:
Q. Good afternoon, sir.
A. Hi.
Q. Please be seated there again. And you don't have to take
the oath again. We ask you to assume that you're still under
the oath that you took a while back when you were here and
answered a lot of questions. And we've relied on what you told
us then. I just have two questions for you now.
First, since it's been a few days since you were here
with us, have you read, seen, heard, or experienced anything
that might in any way affect your ability to serve as a juror
in this case?
A. No, I haven't.
Q. And may we now rely on your assurance that you will give
fair and impartial consideration to the evidence in this case
and to make your decision according to the law and the
evidence?
Juror Nos. E4 and E10 - Voir Dire
A. Yes.
THE COURT: Thank you. You may step out now. We'll
have you back in a few minutes.
E10.
(Juror No. E10 was recalled.)
VOIR DIRE EXAMINATION
BY THE COURT:
Q. Good afternoon.
A. Good afternoon.
Q. You were here a while back, took the oath, answered a lot
of questions for us. We appreciate that. We're relying on the
answers that you gave us. I want you to assume that you're
still under that same oath and just answer two more questions
for us.
One is since it's been several days since you were
here before, have you read, seen, heard, or experienced
anything that might in any way affect your ability to serve as
a juror in this case?
A. No.
Q. And may we now rely on your assurance that you will give
fair and impartial consideration to all of the evidence and to
make your decision according to the law and the evidence?
A. Yes.
THE COURT: Thank you. You may step out now. We'll
have you back in a few minutes.
Juror No. E11 - Voir Dire
JUROR: Thank you.
THE COURT: E11.
(Juror No. E11 was recalled.)
VOIR DIRE EXAMINATION
BY THE COURT:
Q. Good afternoon. Please be seated there where you were a
few days ago when you took an oath and answered a lot of
questions, and we ask that you consider yourself still to be
under that oath.
I have just a couple questions in addition to those
That you've already answered and upon which we've relied.
And it is that first since you were here with us, have
you read, seen, heard, or experienced anything that might in
any way affect your ability to serve as a juror in this case?
A. No, I have not.
Q. And may we now rely on your assurance that you will give
fair and impartial consideration to all of the evidence in the
case and to make your decision according to the law and the
evidence?
A. Yes, you may.
THE COURT: Thank you. You may step out now. We'll
have you back in a few minutes.
And F4.
(Juror No. F4 was recalled.)
VOIR DIRE EXAMINATION
Juror No. F4 - Voir Dire
BY THE COURT:
Q. Good afternoon.
A. Good afternoon.
Q. You were here just a while ago and answered many questions
under the oath that you took. And we ask you to consider that
you're still under that oath.
A. Very well.
Q. And since there has been a few days since you were here
before, I just want to ask you two questions: One, since you
were here, have you read, seen, heard, or experienced anything
that might affect your ability to serve as a juror in this
case?
A. No, sir, I have not.
Q. And may we now rely on your assurance that you will give
fair and impartial consideration to all of the evidence in the
case and to make your decision according to the law and the
evidence?
A. Yes, sir.
THE COURT: All right. Thank you. You may step out.
We'll have you back in a few minutes.
Counsel, approach the bench.
(At the bench:)
(Bench Conference 55B1 is not herein transcribed by court
order. It is transcribed as a separate sealed transcript.)
=0D
Juror No. F5 - Voir Dire
(In open court:)
(Juror No. F5 was recalled.)
VOIR DIRE EXAMINATION
BY THE COURT:
Q. Good afternoon.
A. Hi.
Q. You were here just not too long ago and sat where you are
sitting now and answered a lot of questions for us, and we
appreciate that. And now please consider that you're still
under the oath that you were under then. And we, of course,
rely on what you've told us then, but I just have a couple of
additional questions, one being since it has been a while since
you were here, have you since then read, seen, heard, or
experienced anything that might in any way affect your ability
to serve as a juror in this case?
A. No.
Q. And may we now rely on your assurance that you will give
fair and impartial consideration to all of the evidence in the
case and make your decision according to the law and the
evidence?
A. Yes.
THE COURT: Thank you. You may step out again.
(Juror No. F6 was recalled.)
VOIR DIRE EXAMINATION
BY THE COURT:
Juror Nos. F6 and F7 - Voir Dire
Q. Good afternoon.
A. Hi, there.
Q. Do you recall being here not so long ago?
A. Not so long ago at all.
Q. And you answered a lot of questions under oath, and we
appreciate that. And we just consider that you're still under
the oath.
And all I'll do is ask you since you were last here,
have you read, seen, heard or experienced anything that might
in any way affect your ability to serve as a juror in this
case?
A. No.
Q. And may we now rely on your assurance that you will give
fair and impartial consideration to all of the evidence in the
case and to make your decision according to the law and the
evidence?
A. I will.
THE COURT: Thank you. You may step out.
(Juror No. F7 was recalled.)
VOIR DIRE EXAMINATION
BY THE COURT:
Q. Hello again.
A. Hello.
Q. We asked you to come back in now, as I said we might.
Consider that you're still under the oath that you took with us
Juror No. F7 - Voir Dire
a while back, and you answered all of those questions for us.
And we relied on what you've told us.
And I just want to ask you now additionally, since you
were here with us, have you read, seen, heard, or experienced
anything that might in any way affect your ability to serve as
a juror in this case?
A. No, sir, I haven't.
Q. And so may we now rely on your assurance that you will give
fair and impartial consideration to the evidence in this case
and to make your decision according to the law and the
evidence?
A. Yes, I will.
THE COURT: Thank you very much. You may step out.
Now, let's see. That was F5, F6, and F7. All right.
So I'm granting -- I will announce to those here that
I'm excusing for hardship the juror whose wife lost her job and
whose situation has therefore changed considerably since he was
here before. So he's now being excused for hardship.
And we have talked with three additional people here.
I'm going to grant each side an additional peremptory challenge
to be exercised only with respect to the last three.
Mr. Mackey?
FURTHER PEREMPTORY CHALLENGES AND RULINGS
MR. MACKEY: Your Honor, we would excuse F5.
THE COURT: F5.
MR. TIGAR: Batson, your Honor. Roman Catholic.
THE COURT: All right. A religious -- do you have F5
here?
MR. MANSPEAKER: Yes, sir.
THE COURT: Someone want to explain your challenge on
a ground other than religious bias?
MR. MACKEY: Fortunately, it seems like it was only
yesterday that we spoke to this juror, so my memory is fresh;
and I distinctly recall that this is a juror who had very
anti-death-penalty views. And it would be on that basis and
that basis only that we would move to strike F5.
THE COURT: Mr. Tigar?
MR. TIGAR: If your Honor please, recollection is also
fresh on our side.
With respect to this juror, the Government filed a
memorandum; and in that memorandum, if recollection serves,
there were a dozen references to various aspects of the juror's
Catholic faith; that is to say, although there was an
allegation that she could not be open to the full range of
punishment, the entire memorandum was devoted to a discussion
of her religious beliefs.
And so, your Honor, we respectfully submit that the
penalty-impairment argument is transparent with respect to this
particular juror because no memorandum even approaching it in
its focus on religious faith was ever filed with respect to any
other prospective juror.
THE COURT: This is a woman who said that she could
disagree with the teachings of the Church, so that she was not
adhering strictly to the teachings of the Church. She also
said that she could follow the law ultimately, which is why she
passed for cause. And she expressed some other disagreements;
but I -- you know, one of the things about it with respect to
religion -- and I don't want to be misunderstood by the public
here as criticizing any religion nor any faith, but there is
something of a problem when the leadership of a church takes a
position that the law is wrong and essentially publicly
disagrees with the law as it is.
Now, they're free to do that. That's what the First
Amendment is all about, but it does create an impediment to
follow the law as required of a juror.
Now, that did not disqualify her, and I'm not
disqualifying her on that ground. I'm simply saying that I am
recognizing that the Government can legitimately and without
being -- transgressing the equal protection aspect of the Fifth
Amendment excuse her.
So the Batson challenge is denied.
MR. TIGAR: Defense challenges F6, Foxtrot 6.
THE COURT: Okay. F6. So that leaves F7 as our 18th.
Now, by my count, we have 18 people.
MR. MACKEY: Yes, your Honor.
THE COURT: What I'm going to do is speak for a moment
to those who were excused, take a brief recess here. Maybe
about 10 minutes. Then we will be bringing our 18 in. It will
be open seating. They will sit anywhere they want to. We're
not going to assign seats to them, and I would give them the
preliminary instructions.
MR. TIGAR: Your Honor, may we request a favor, and
that is that the podium be moved?
THE COURT: I just mentioned it.
MR. TIGAR: I'm sorry, your Honor.
THE COURT: We're going to get it out of the way.
MR. TIGAR: I was making a note, and I did not hear.
THE COURT: No, I didn't mention it to you. I
mentioned it to my strong left hand here.
MR. TIGAR: Thank you, your Honor. I thought it was
another sign of age. I just lost focus there.
THE COURT: All right. Let's take ten minutes.
(Recess at 2:31 p.m.)
* * * * *
INDEX
Item Page
Jurors
Juror No. A1
Voir Dire Examination by The Court
Juror No. A2
Voir Dire Examination by The Court
Juror No. A3
Voir Dire Examination by The Court
Juror No. A4
Voir Dire Examination by The Court
Juror No. A12
Voir Dire Examination by The Court
Juror No. B2
Voir Dire Examination by The Court
Juror No. B3
Voir Dire Examination by The Court
Juror No. B6
Voir Dire Examination by The Court
Juror No. B11
Voir Dire Examination by The Court
Juror No. C11
Voir Dire Examination by The Court
Juror No. D6
Voir Dire Examination by The Court
Juror No. D11
Voir Dire Examination by The Court
Juror No. D12
Voir Dire Examination by The Court
Juror No. E3
Voir Dire Examination by The Court
Juror No. E4
Voir Dire Examination by The Court
Juror No. E10
Voir Dire Examination by The Court
Juror No. E11
Voir Dire Examination by The Court
Juror No. F4
Voir Dire Examination by The Court
Juror No. F5
Voir Dire Examination by The Court
Juror No. F6
Voir Dire Examination by The Court
Juror No. F7
Voir Dire Examination by The Court
Further Peremptory Challenges and Rulings
* * * * *
REPORTER'S TRANSCRIPT
(Trial to Jury: Volume 57)
Proceedings before the HONORABLE RICHARD P. MATSCH,
Judge, United States District Court for the District of
Colorado, commencing at 2:48 p.m., on the 30th day of October,
1997, 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, 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, and ADAM THURSCHWELL,
Attorneys at Law, 1120 Lincoln Street, Suite 1308, Denver,
Colorado, 80203, appearing for Defendant Nichols.
* * * * *
PROCEEDINGS
(Reconvened at 2:48 p.m.)
THE COURT: Be seated, please.
MR. TIGAR: Your Honor, now that jurors are going to
be occupying both rows in the box, we would request invocation
of the empty-seat rule on the Government's first counsel table.
THE COURT: Well, we'll talk about that after I do
what I'm going to do here.
(Jury in at 2:49 p.m.)
PRELIMINARY JURY INSTRUCTIONS
THE COURT: Well, welcome now to your role as the jury
for the trial of this case. You've been selected as the jurors
in this case, and we appreciate all that you have done in
cooperating with us to go through this long and I'm sure at
some times somewhat annoying and somewhat tedious process of
selection. But you are the people who have been selected to
hear the evidence in this case and to make the decisions
necessary according to the law and the evidence.
Now, I want to start this trial, the trial itself, on
Monday, November 3. I'm giving us time in between so that each
one of you can make the arrangements necessary to begin to work
according to the schedule that we've talked about during the
individual questioning of you, which will be, as I mentioned to
each one of you, I think, as you were in here before -- we will
be in the courtroom from 9 to 5 Monday through Thursday and
from 9 to 1 on Fridays.
We're not going to hold you overnight -- there is no
sequestration rule in effect in this case -- or over the
weekends. The time when you're not here or in the process of
going -- coming and going to the courthouse is yours; but, of
course, you recognize the importance of being careful during
all of those times, because what's going to happen Monday when
you come in and when we start this trial at 9:00 is that I'm
going to administer to you the oath that requires of you
exactly what each one of you said that you could do, and that
is to decide the case solely on the basis of the law and the
evidence presented to you in the course of the trial, setting
aside anything that you might previously have read, seen, or
heard about this case or about the subject matter of it.
And in addition to setting aside the things that you
heard before, of course, you must now be extremely careful --
and I reemphasize and renew the instruction that I gave you
before that you must be careful in how you watch television,
listen to the radio, read newspapers, magazines, books,
publications and converse with others, to stay away from
anything at all which could possibly influence or affect you in
your duty as jurors in this case.
I want to give you a little explanation here before
excusing you for the day and until Monday morning about exactly
how the trial will proceed. During the time that we asked you
some questions here, we did make some mention of it; but just
as a preliminary with respect to instructing you about what's
involved in the trial process, let me tell you that on Monday
after there is the -- the oath has been taken, we'll proceed to
what we call opening statements; and that's an opportunity for
the lawyers on each side to speak directly to you about what is
expected to be the evidence in the case. It is by way of an
outline or introduction of what you can expect to see and hear
as the case progresses with the evidence.
Now, because the Government has the burden of proof in
the case, we proceed just as we had during the questioning.
The Government lawyers will go first with respect to opening
statements, and defense counsel may make an opening statement
immediately after that or may, if he chooses, wait until a
later point in the trial to make the opening statement.
But the opening statements will not be a part of the
evidence in the case. They are by way of a preliminary
introduction to what you can expect, a kind of overview from
each side.
And then there really are four stages or phases of
every trial, and the first of it is the opening statement. And
as I will caution you when these statements are made, they are
not evidence. They are simply statements from the lawyers of
what they expect the evidence to be.
The evidence, of course, will be the testimony of the
witnesses who come in here one at a time and are sworn, take
this witness stand, which is this area right here between us,
and respond to the questions that are asked of them.
And the evidence also will consist of exhibits,
documents or objects that are offered as evidence in the course
of the trial.
Now, that is the second stage, then, the taking of
evidence. And here again, the Government goes first and calls
the witnesses.
During the taking of the evidence, we will be
proceeding, of course, under what we call the adversary system.
There are two sides to the case. Lawyers on each side have a
professional responsibility to represent that side of the case
and to raise questions of admissibility of evidence. So what
you're going to be hearing many times in the trial will be a
witness is testifying and a lawyer for the Government or for
the defense is asking questions; and the opposing counsel will
interpose objections, raising an objection, stating it briefly
as to what the objection is, and I rule on those objections.
And in the event that the objection is sustained, that
means that the lawyer has invoked a rule of evidence, I've
applied it and excluded the testimony, and therefore the
witness will not be permitted to answer that question.
And in such a situation, you should, of course, first
of all recognize that's how the rules of evidence get applied
in a case and not feel that the counsel who has raised the
objection has in some way acted improperly or denied you the
opportunity to hear something. It's part of the responsibility
of lawyers in the case and of me as a judge in the case to
apply these rules and to make these rulings.
The same may be true with respect to the offering of
exhibits. An exhibit will be formally offered by one side or
the other, objected to, and I will rule. And these rulings
will simply state, generally speaking, that the objection is
sustained or overruled.
Now, in the event that an objection is overruled, that
means that the witness will be permitted to answer the
question. But the mere fact that an objection was first heard
and overruled does not mean that that testimony, that
particular answer, is to be considered by the jury in any way
different from all of the other testimony of the witness. It
doesn't get special significance or insignificance because an
objection was first raised and overruled.
And there will be occasions, I'm sure, when it may be
necessary for me to discuss a matter of evidence with counsel
outside of your hearing. There can be times -- and we'll
certainly try to take -- keep them to a minimum -- when I'll
call the lawyers up here to meet with me in a little huddle at
the bench -- and we've got kind of a little sound machine that
masks what we say here -- and discuss it briefly and then I can
perhaps better make a ruling after I have the ability to
answer -- or ask some questions of the lawyers. Don't take any
offense at that, if it should happen.
There may be times -- and we'll certainly try to keep
that to a minimum -- when it would be necessary to excuse you
from the courtroom for a short period because there can be
circumstances when I need actually to hear the witness respond
before I can make a ruling.
So, you know, one thing that I can assure you, each
one of you, is that we know that by pulling you out of your
regular life and work routine and asking you to come in here
and serve on this jury -- your time is valuable, and we're not
going to waste it. So you can be certain that everybody
involved in this case appreciates what we've asked you to do,
and we'll certainly not abuse your time.
Now, the -- as you've already heard, the defense in a
case has no burden or duty of -- or obligation to call
witnesses, and the defendant does not have any obligation to
testify. And of course, it is the choice of the defense as to
whether they call witnesses after we've heard from all of the
Government's witnesses. But the case proceeds by taking the
evidence from the Government, then whatever evidence may be
offered by the defense. Then there can be an opportunity for
what we call rebuttal evidence, which is again back to the
Government if there are some circumstances that warrant or
justify it, where something came up in the defense case to
which the Government may have evidence to offer in
contradiction of it.
Then when all of the evidence is completed in the
case, you've heard from all of the witnesses, and all of the
exhibits have been received that are going to be received, so
the evidence is closed, as we say, then you will hear from the
lawyers again directly on what are called closing arguments.
As the term implies, that's the opportunity for lawyers on each
side to go through the evidence with the jury, explaining an
interpretation of the evidence and the position of that side as
to how the jury may view the evidence. And of course, these
arguments will be disagreeing; and that's why we have lawyers
on both sides of the case.
And then the final thing that happens is that I will
give to you instructions on the law that will govern you in the
case. And you've heard me mention that and the lawyers have,
too, as we've gone through the questioning process here. And
each of you recalls on the questionnaire, there was, "Do you
agree that it's necessary to follow the instructions of the
Court," and all of you said you do agree with that and
understand the necessity of it. And that, of course, will be
the detailed principles and the details of law that must apply
in the case.
I may also give instructions at times in the course of
the taking of the evidence. There can be what are called
limiting instructions that will restrict the jury's
consideration of particular types of evidence to particular
points being raised, and I'll explain all that when we come to
it.
But I just wanted to take a few minutes of your time
now to kind of give you an overview of exactly what happens at
a trial so that you can have that in mind and it won't be all
mysterious to you as far as the procedure is concerned when you
come in here to begin this trial Monday morning.
Now, recognizing that I've said we're going to start
Monday morning and that I'm taking this time between now and
then to accommodate whatever needs you have to make,
arrangements with your employers, child care, whatever is
necessary so that you can come in here and focus on the case,
do any of you know right now whether you have a problem
beginning this case Monday morning?
Okay. Good.
And then as I say, we're going to follow this
schedule, and you can rely on it. And we know, as I've already
said, that we're taking a lot of your time. We won't waste it.
So just before I excuse you now for the day, I want to
repeat again and renew and emphasize -- and you're going to get
tired of hearing me say this because I'm going to say it to you
every day, and that is you've just got to be true to the oath
that you will take here and to the assurances that you have
each given to us just this afternoon that you will decide this
case according to the evidence that's presented to you in the
course of this trial and the law that is given to you in the
instructions.
So when people find out that you are on this jury,
your friends, your family, you know, the things that we asked
you about: Well, what did they say? What reaction did they
have? Now, you know, you're going to get reactions now at home
and with others; and when you report to employers you're on the
jury, you can expect some things. But obviously, what you must
do is avoid any discussion now about the case or anything
connected to it, not only directly to you but in your presence,
to be able to do what all of us count on you in doing, and
that's deciding this case fairly. And "fairly" means on the
law and the evidence.
Now, in the event that anything, you know -- we can
tell you that, you can agree to that and do your best; but
there is always the possibility that something happens and that
you inadvertently come into contact with something that you
shouldn't. Anything like that happens or if any of you have
any situation where somebody is persisting in trying to talk to
you or anything like that, you let us know.
You've got a number to call here and the arrangement
also that we will have here for you, and then the understanding
is that, you know, if between the time you were excused from
the courtroom and you come back in something like that has
happened, you just hand -- write a note. Give it to me. I
mean, you give it to the staff who will give it to me -- I
won't be meeting with you outside of the courtroom -- to let us
know what happened, so that I just -- I don't expect this to
happen, but in the event it did, I want you to know what to do,
which is to write a note and it will be given to me, and then
we'll see what the problem is.
So those are the points that I wanted to mention to
you now and so that you know better what to expect when we
start this trial Monday.
Also, I can explain to you that in the course of the
trial, it may be that questions come to your mind and, you
know, as we go through this process you would want to ask a
question or want a lawyer to ask a question or me. We don't do
it that way. You are on the receiving end of the process; and
I hope you understand that there are reasons, good and valid
reasons. You know, this process we're talking about has gone
on for several centuries now, so it's a pretty tried-and-true
process. So please understand the restrictions on it.
And there certainly are times when there is a
particular witness on the stand and you may want to hear more
about something from that witness. Well, you know, these are
experienced lawyers on both sides. They know what they're
doing, and some of the things that might be a question in your
mind at one time may be answered by another witness much later,
or maybe there is no answer.
So we simply ask that you recognize the process for
what it is.
Also, I'm not going to have you taking notes in the
course of the trial. That's going to seem strange to you, too.
Some of you are used to taking notes and things; and, you know,
you see people in the courtroom, including me, taking notes.
But a part of this process is to -- you know, we didn't test
you on how well you take notes or do you know shorthand or
something like that; so that's part of the reason why we don't
permit note-taking in juries, so that there is first of all not
a difference among jurors as to how good a note-taker you are
but also, you know, anybody taking notes has the risk of
missing something. You're maybe a couple of minutes behind in
the notes and you can miss something that's important. And one
of the other things is that we want you to be looking at the
witnesses and observing their demeanor and manner on the stand.
That's a part of how you're going to be judging the credibility
of the witnesses, and we don't want you to be distracted by
notebooks or that kind of thing.
One of the things that, you know, can give you some
comfort and assurances: You don't have to rely on your own
memory as to what is said, because it is the memories of all of
you who participate in deliberations in the case that will be
useful to you in making the decision.
So this is where we're going to be Monday morning,
9:00. You're excused now; and what I want you to do is gather
here back in the jury room, because we want to get you
acquainted with the logistics of the place where you're going
to work. I mean, this area behind us here is going to be your
area. There won't be any interferences with that, and you'll
get some logistical information from the staff, too, with
respect to going and coming to the courthouse, and so forth.
So we'll see you all Monday morning. You're excused
until then.
(Jury out at 3:08 p.m.)
THE COURT: We do have some motions that I told you
we'd hear tomorrow; and as I recall it, there are some that
deal with discovery and some matters that have to be done
outside of the courtroom, and then are there some -- I don't
have a list of them in front of me right now.
MR. TIGAR: Your Honor, we took a look at the pending
matters, and they all appear to deal with admissibility of
evidence, in-limine-type motions and discovery matters. And
thus it would be our submission that they could and should be
in chambers.
THE COURT: That was my impression when I last looked
at everything that was pending, and I think -- is there
anything that doesn't fit the criteria for the in-chambers
meeting?
MR. MACKEY: Based on my review, no, your Honor. I
think that would be appropriate.
MR. TIGAR: And I think the Court could also find in
that connection in compliance with your Honor's earlier order
that given the fact that opening statements are imminent and
media attention is particularly high that that's -- interest in
a fair trial is particularly acute at this moment.
THE COURT: All right. Well, may I suggest -- what
time do you suggest? 9:00?
MR. MACKEY: That's fine, your Honor.
THE COURT: Meet with counsel and with Mr. Nichols in
Chambers at 9? So the courtroom is going to be for this trial
in recess until 9:00 Monday morning.
Court is in recess.
(Recess at 3:10 p.m.)
* * * * *
INDEX
Item Page
Preliminary Jury Instructions
* * * * *
REPORTER'S CERTIFICATE
I certify that the foregoing is a correct transcript from
the record of proceedings in the above-entitled matter. Dated
at Denver, Colorado, this 30th day of October, 1997.
_______________________________
Paul Zuckerman
