The Oklahoma City Bombing Trial Transcripts
Terry Nichols
Wednesday, October 29, 1997 (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 52)
Proceedings before the HONORABLE RICHARD P. MATSCH,
Judge, United States District Court for the District of
Colorado, commencing at 8:25 a.m., on the 29th 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, BETH WILKINSON, GEOFFREY MEARNS, and
JAMIE ORENSTEIN, Special Attorneys to the U.S. Attorney
General, 1961 Stout Street, Suite 1200, Denver, Colorado,
80294, appearing for the plaintiff.
MICHAEL TIGAR and RONALD WOODS, Attorneys at Law, 1120
Lincoln Street, Suite 1308, Denver, Colorado, 80203, appearing
for Defendant Nichols.
* * * * *
PROCEEDINGS
(In open court at 8:25 a.m.)
THE COURT: Be seated, please.
Good morning.
We have one motion from yesterday.
MR. MACKEY: Yes, your Honor.
THE COURT: And I received a written submission on
this 680.
MR. MACKEY: Yes, your Honor. We faxed it, as well,
to the defense counsel last night. The Government would rest
on its brief.
THE COURT: All right. I assume the defense opposes
the motion.
MR. TIGAR: Yes, your Honor.
THE COURT: The motion's denied. I've read the
submission the Government made.
Also, I noted that for 467, who is on the list for
today, the response beginning with the original one appears
that he does not meet the residency requirements, so --
MR. TIGAR: Yes, I -- Mr. Manspeaker brought that to
our attention, your Honor. We would consent to him being
excused.
MR. MACKEY: As would we.
THE COURT: All right. Then, although a few minutes
early, I think we're ready to return to 202.
Good morning.
JUROR: Good morning.
(Juror No. 202 was recalled to the stand.)
VOIR DIRE EXAMINATION CONTINUED
BY THE COURT:
Q. Not only did I agree yesterday to get you in here first
thing this morning at 8:45, we decided to do it earlier today.
A. That's great.
Q. So -- I -- you know, yesterday, when we were talking about
the matter and talking about your business, you were expressing
your concerns about the impact on your business from the
service involved in being on this jury. Have you thought some
more about that?
Juror No. 202 - Voir Dire
A. Yes, I have.
Q. Could you tell us what your thoughts are.
A. Well, you know, I think being on the jury would have an
impact on my business; but, you know, after being here a day,
it's real hard to say that, you know, the impact on my business
is any greater than somebody else that's just got a job that
they started or has small children. Being on the jury would
cause me to have to work in the evenings and work with some of
my employees getting it done, but I can't say it's easier for
me than anybody else. So I think if I had to do it, I could do
the job.
Q. Well, we appreciate not only your review of it some more,
but also your understanding of what the obligation involves.
And as we were talking yesterday, most of the people who get
summoned have some impact that they have to accommodate. So we
appreciate your efforts in that regard.
Of course, we want you to get some sleep at night,
too. So -- I hope that you would be able to accommodate that
need, as well.
Now, you did at one time -- page 12 is where I'm
looking. You did at one time have some difficulty here on
your -- under the item at 54. What was that? How long ago was
that?
A. 1991.
Q. And did that have a business involvement, too?
Juror No. 202 - Voir Dire
A. Yes.
Q. Okay. Well, you marked it as personal, but there was a
business indebtedness that was a part of that?
A. That was the primary reason.
Q. Okay. Now, and I think you mentioned yesterday when I
asked you about normal business litigation that you didn't have
anything pending right now.
A. That's correct.
Q. Okay. And you are married now?
A. Yes, I am.
Q. Your wife now is at home. You have a youngster at home?
A. We have two.
Q. One of them younger, I think. Fairly young?
A. Yeah. I have one daughter that's 18 months.
Q. Yeah. Okay. And you were married before?
A. Yes, I was.
Q. And did your -- during your previous marriage, was the --
was your then wife working outside the home somewhere?
A. No, she was not.
Q. Okay. In connection with this matter of sort of open-ended
questions about your attitudes and opinions on things, as we
discussed yesterday, that's up to you. We're not challenging
your views on anything. But you did, on page 30, state your
agreement of the importance of following the Court's
instructions. Do you see that at 129? Do you see my
Juror No. 202 - Voir Dire
reference?
A. Yes, I do.
Q. And you didn't offer an explanation there where we asked
you for an explanation. And why is that?
A. Well, I believe the court has under -- an understanding of
the law that is before the people and that they have the
knowledge to give me the instructions I need to do -- to make
the decision in the court case.
Q. So to you, it didn't need explanation; the answer is
obvious? Is that --
A. Yes.
Q. -- the way you interpret it? Now, when that refers to
court instructions, of course, you understand that it means all
of the instructions, not just where to be at what time and so
forth, but all of the instructions about the law; and I think
in the answer that you just gave me, you recognize that?
A. Yes, I do.
Q. And one -- and of course, the instructions will include at
trial instructions at the beginning of the case, during the
course of the taking of evidence. Sometimes there's
instructions about how the jury must limit certain evidence and
so forth in their consideration of the case. And then also at
the end of the trial, there are detailed instructions about the
law as we've already discussed when the elements of the offense
are outlined and those things that must be proved beyond a
Juror No. 202 - Voir Dire
reasonable doubt and so forth.
Now, we asked you in this questionnaire some questions
about your attitudes or opinions concerning certain types of
punishment. And that refers to the -- the questions at page
28. And if you just want to take a moment to review what you
said on the questions on page 28 and then over on 29.
A. Okay.
Q. Now, there was a -- a preface to this, too, on page 27, a
rather long explanation of why these questions were in the
questionnaire. You recall --
A. Yes, I do.
Q. And as -- as the questionnaire explains at page 27, the top
of 28, the reason is the possibility of the jury in this case
having to participate in a punishment decision. That, of
course, is a possibility only on the possibility that there is
a guilty verdict with respect to the charges.
So clearly, the first thing that the jury must focus
on is the evidence at the -- in the trial and determine whether
that evidence proves the charges against Mr. Nichols beyond a
reasonable doubt as we've already discussed. And if not, of
course, the verdict is not guilty.
But in the event of a guilty verdict, because of the
nature of the charges and the federal statutes involved, there
is the possibility of having to hear more and consider these
punishments. And what we wanted to know from you in advance of
Juror No. 202 - Voir Dire
any instructions from me about the law that applies and how
this matter is to be decided under the law is we simply wanted
to know something about your attitudes and opinions concerning
the use or the availability of such punishments under the law,
recognizing as we do -- and I'm sure you do -- that there's a
wide divergence of public opinion about the death penalty in
particular. And there are people at really two extremes there,
one being that the death penalty should never be imposed; that
the law should not include the possibility of such punishment.
And at the other extreme, I suppose, are people who say that it
should be an automatic penalty; that if a person takes
someone's life intentionally, then they forfeit their own life
and should be executed. Those, I suppose, are the ends of the
spectrum, and there's a lot in between. You understand that
yourself?
A. Yes, I do.
Q. And of course, you know that there are differences among
the states with respect to the availability of such punishment.
There are states in the United States where there is no death
penalty provided by law, and in some states, it has changed
from time to time depending upon who is in the legislature and
public opinion.
Now, given that, you wrote us some answers here which
sets forth as we understand it -- as I understand it, your
opinions about these punishments and when they may be used. Is
Juror No. 202 - Voir Dire
that correct?
A. Yes. Based upon the scenario that was given.
Q. Yes. And is this a matter to which you've given much
thought before being confronted with these questions?
A. You know, I don't think you -- you think about it, but it's
not something you dwell about at all.
Q. Yeah. You think about it as you think about a lot of other
things and current events and discussions and so forth; and of
course, these divisions of opinion become more prominent at
times when the death penalty is carried out as recently
happened in Colorado with respect to a state sentence.
A. Well, that's correct.
Q. And that, of course, happened after you completed the
questionnaire. Was -- has there been anything that has in any
way caused you to change these opinions at all?
A. No, there has not.
Q. So that if I asked you the same questions this morning,
you'd give me the same answers, basically?
A. Yes, I would.
Q. Okay. Now, I want to review with you what the law actually
is here in the Federal Court and of course, as I've already
mentioned, there's differences among the states, but you
understand clearly that we're in Federal Court on federal
charges and therefore, follow the law as it is given by the
Congress in the federal statutes involved. And essentially,
Juror No. 202 - Voir Dire
what the Congress has provided is that for crimes such as
the -- murder, the intentional killing of other persons, the
range of punishments available under the law are, first of all,
life in prison with no possibility of ever being released. The
person lives out the rest of his days in prison. Another
punishment is death. And then there can be lesser punishment.
Now, normally, in cases that do not involve capital
punishment, the punishment sentence is decided by a judge in
Federal Court. So if a jury finds a defendant guilty of a
crime, other types of crime, let's say bank robbery as an
illustration, which is a federal crime, then the jury has
discharged its duty in the case, whether it's guilty or not
guilty. The jury has discharged its duty by determining the
sufficiency of the evidence to prove the charges, and then the
matter is turned over to the court to determine what the
sentence ought to be.
And before a judge makes a decision about a sentence
for a particular individual, it's necessary to hold a hearing
on that. And as a part of the formulation of that decision,
the court wants to know more about the crime than just what was
presented at the trial, including consequences, were there
people injured and, you know, what was the effect on the bank
and so forth, and then at the same time wants to know all there
is to know about the defendant as a human being.
And so information is gathered about the defendant,
Juror No. 202 - Voir Dire
including, you know, all of the things that are personal to him
and unique to him, his whole background, where he was born and
raised, what kind of circumstances were there there, what is
his education, what is his history with respect to employment,
marriages, divorces, children, military service.
You would agree that all of us have sort of a life
history that's unique to us as individuals?
A. I would definitely agree to that.
Q. Okay. And so that's what the court wants to know about the
individual defendant. And in cases where there may be one --
more than one person involved -- again, as an illustration,
suppose there are three people involved in a bank robbery. One
has got a gun and holds it on the people in the bank, another
scoops up the money and another drives away the car, the
getaway car. And if the court had convictions of all those
three people, there would be a focus on each one of them
individually.
And then after a hearing at which the court also hears
from the lawyers for the prosecution and the defense, a
decision is made as to each defendant, and it can be different
even though they all were involved in the same crime. And the
differences can be substantial, depending on the role in the
offense, as well as the matters that are uniquely individual to
each person. Follow?
A. I -- I follow that.
Juror No. 202 - Voir Dire
Q. Now, in cases that do involve this possibility of a
life-or-death question, the Congress has provided that such
decisions should not be made by judges. For a life-and-death
decision, we ask the jury to do it, and the jury therefore has
that responsibility. And what happens is the way in which this
is presented to the jury is that, first of all, at the trial
with respect to the sufficiency of the evidence, this, of
course, is not an issue. The jury must not consider what
punishment there might be when the jury is considering whether
the evidence proves the defendant guilty. Understand?
A. I do.
Q. Then, if there is a guilty verdict, the jury must go on and
hear more in much the same fashion as a judge hears more before
determining an individual sentence for a person found guilty of
some other type crime. Now, that is done by a second trial, a
penalty phase hearing, and it proceeds procedurally in the same
manner as the trial itself. There are lawyers on both sides,
of course. And witnesses are called in, give testimony,
exhibits are offered, and the testimony and exhibits go to both
the circumstances of the crime again, the things that didn't
come in in evidence at the trial of the evidence, but that can
include the effects on communities, victims, so forth, and then
all there is to know about the defendant in the same manner as
I've already discussed with you that judges want to know who is
being sentenced here. So the jury must know whose life is at
Juror No. 202 - Voir Dire
issue. And to put it in the plainest forms, before the jury
decides to take another person's life, the jury must know a lot
about the life being taken. Understand?
A. I understand that.
Q. And then at the end of the second trial or penalty phase
hearing, the court sort of gives additional instructions and
pretty much sums up what has been heard, what information has
been provided and in the course of doing that, also divides it
up into two categories: On the one hand, those things that
would be called or may be called aggravating circumstances or
aggravating factors, the things that the jury's been presented
that suggest that death is the deserved punishment, and also,
those things the jury has heard that could be considered
mitigating factors, mitigating against that punishment and
suggesting that a lesser punishment is appropriate for this
particular person committing the crime.
Now, again, the role in the offense can be a factor on
one or the other side of that. The life history of the person
is a factor. And at the -- after summarizing aggravating and
mitigating circumstances, then the court would give some
questions for the jury to ask themselves to sort of help
analyze it. But there's no formula for this, you know.
There's no arithmetic equation. You can't say two points here,
four points there. It doesn't work that way, because it's a
very human, subjective judgment that is being asked of the
Juror No. 202 - Voir Dire
jurors. And the jurors are then, of course, expected to
deliberate, to exchange their views and discuss the matter of
punishment. And finally, the question that is presented to the
jury is probably best characterized as one involving a
reasoned, rational moral judgment based upon all that has been
heard with respect to the case in the punishment trial.
Understand?
A. Yes, I do.
Q. And while the jurors discuss it, deliberate, in the end,
each juror has to make an individual decision as to whether the
particular defendant should live or die. Now, what we need to
know from you is whether, if you were to serve on a jury -- and
of course, we can't talk about it as -- as Mr. Nichols' case
because we have no idea, first, what the evidence would be, if
the trial -- whether he will be found guilty or not, and then
we have no information to tell you now what -- what would be
presented at a punishment hearing. We -- we have a blank
there, you understand.
A. I understand that.
Q. So we have to ask it in -- more in an abstract way; and
that is, if you served on a jury, had to decide the question of
life or death, would you be able to make the decision and base
it on all that you have heard, including the aggravating and
the mitigating circumstances?
A. I believe that based upon the -- my knowledge and my
Juror No. 202 - Voir Dire
opinions now that I could reach that decision.
THE COURT: All right. Now, there's an opportunity
for a lawyer on each side to question further.
Ms. Wilkinson.
MS. WILKINSON: Thank you, your Honor.
VOIR DIRE EXAMINATION
BY MS. WILKINSON:
Q. Good morning, sir. Welcome back.
A. Good morning.
Q. My name is Beth Wilkinson, as his Honor told you yesterday.
And I'm one of the prosecutors who will be presenting the
evidence in this case against Mr. Nichols.
I take it from listening to your first words to his
Honor that you went home and thought about what he asked of you
in terms of jury service and that you're willing to make that
sacrifice if you're called to do so; is that right?
A. Yes, I am.
Q. And you understand, I'm sure, that if you are called to do
that, all we're asking you to do is come into this courtroom
and have an open mind and listen to the evidence and make a
decision as to whether the Government has proved its case
beyond a reasonable doubt based just on what you hear in this
courtroom?
A. Yes, I will.
Q. Would you have any trouble doing that?
Juror No. 202 - Voir Dire
A. No, I won't.
Q. Okay. I take it you make decisions almost every day in
your business?
A. I do.
Q. And not that I know much about your business, but it would
seem to me that there's sometimes a lot of different things
that you have to consider before you make a business decision.
Is that true?
A. That's true.
Q. Do you understand in this case, there are obviously going
to be lots of things for you to consider, lots of evidence,
witness testimony, exhibits, but there's going to be all
different types of testimony and exhibits that you'll have to
consider?
A. I understand that.
Q. Can you do that? One type of evidence that you may hear
may be evidence about what occurred, the crime that occurred,
and some of that may be -- trigger some emotional responses in
people, you know, about what happened at the scene, vivid
pictures about children and victims of the crime.
Do you think you could listen to that evidence but in
the end, decide your -- whether the Government has met its
burden of proof based on an objective and reasoned look at all
of the evidence presented in the case?
A. I believe I could. I don't think it would be easy, but I
Juror No. 202 - Voir Dire
believe I could do that.
Q. Okay. It looks from your questionnaire that you're pretty
busy with the family and a full-time business; is that right?
A. That's very true.
Q. If you have any time, do you watch the news on any kind of
regular basis?
A. Occasionally in the evening, yes.
Q. Have you heard much -- before you received his Honor's
admonitions not to follow the media on this case, had you heard
much about the case or the Oklahoma City bombing itself?
A. Some, yes.
Q. Do you recall when the event -- when the bombing occurred
back in April of 1995?
A. Do I recall the date or just recall --
Q. The time.
A. I recall the incident, but I don't recall the specific date
or when it was.
Q. Do you remember watching the news or reading the newspaper
about the bombing?
A. Yes, I do.
Q. And what comes back to mind when you think about those
events?
A. I just think probably the biggest thing that comes to mind
is the destruction and the life that was lost and -- and the
emotional impact it had on a lot of people.
Juror No. 202 - Voir Dire
Q. Was that the part of the coverage that you followed the
most, about the destruction and the victims?
A. I would say so, yes.
Q. Did you follow much about the investigation and how that
unfolded?
A. No, I did not.
Q. Do you have a recollection about how Mr. McVeigh was taken
into custody?
A. Yes.
Q. And what do you recall about that?
A. I believe that he was driving in a car and they stopped
him.
Q. Do you recall anything about how Mr. Nichols came into
custody?
A. No, I do not.
Q. Do you know anything about Mr. Nichols?
A. Not specifically, no.
Q. Do you recall reading anything about him or -- other than
that he's charged in this case?
A. No.
Q. So I take it you wouldn't have to put too much out of your
mind to come in here and start with a clean slate then and
presume him innocent as you're required to do by the law?
A. Yeah. I don't think it would be that hard.
Q. Then I just want to turn to the final subject, which is the
Juror No. 202 - Voir Dire
penalty phase. Obviously, you listened to his Honor's
instructions very carefully how this is a bifurcated process.
There would be a trial as to whether the Government had proved
its case; and if you found a defendant guilty, then and only
then you would move on to listening to the evidence about what
the proper punishment would be. Did you understand that?
A. Yes, I did.
Q. Now, do you recall in the McVeigh case, the jury announced
its verdict as to guilt?
A. I think I heard it through some business people in my
office.
Q. And do you recall when it was announced that they had
recommended a sentence of death?
A. No.
Q. Did you know that there was some time period between those
two pronouncements?
A. Yes, I did.
Q. Okay. Do you understand now that that's because there was
a second phase where the jury, although they had decided guilt,
had to have an open mind and start again to determine what the
punishment should be?
A. Yes, I understand that.
Q. Now, do you understand also that the law requires you in
that second stage to be open to considering both penalties;
even though you've convicted someone of a crime of murder, that
Juror No. 202 - Voir Dire
you have to be willing to listen and consider life or death?
A. I understand that.
Q. And can you do that even if someone -- you had already
determined that someone was guilty beyond a reasonable doubt of
murder?
A. Yes, I could.
Q. And could you do that no matter what the crime was, no
matter how horrible the crime was?
A. Yes, I could.
Q. I ask you that because in your questionnaire, you said
that -- when we asked you those different delineations of what
crimes you thought were appropriate for what punishments, I
believe you said on the death penalty that a violent murder
would be one that might be appropriate for the death penalty.
Do you recall that?
A. Yes, I do.
Q. And do you understand that that may make it appropriate --
in other words, you could consider it -- but you can't come in
with a preconceived notion that that's the penalty that
absolutely applies?
A. I agree with that.
Q. Okay. So if I asked you could you consider both penalties
even after determining guilt, you would have no problem doing
both of those as you came into that second phase?
A. No, I would not.
Juror No. 202 - Voir Dire
MS. WILKINSON: I appreciate you answering my
questions, sir. Thank you.
JUROR: Thank you.
THE COURT: Mr. Tigar.
VOIR DIRE EXAMINATION
BY MR. TIGAR:
Q. Good morning, sir.
A. Good morning.
Q. My name is Michael Tigar. And Ron Woods sitting right
there and I were appointed by the United States district judge
in Oklahoma City in May of 1995, shortly after these Government
lawyers filed charges against Mr. Nichols, charging him with
being responsible for the bombing. So we're lawyers appointed
by the court.
I gather you've never served on a jury before?
A. Never have.
Q. Okay. Have you ever had occasion to think about this
question of lawyers being appointed at public expense for -- to
represent people that are accused?
A. No. Not really.
Q. Okay. Does it bother you?
A. No.
Q. Okay. I wanted to ask you some of the things about the --
that are on your questionnaire, but I don't think you need to
look at it. Just the first one, you said you grew up -- and
Juror No. 202 - Voir Dire
I'm not from here -- on the Western Slope?
A. Yes, I did.
Q. And it was sheep and cattle?
A. Yes.
Q. Now, did you raise a crop there, as well?
A. No, we did not.
Q. Didn't --
A. We raised some alfalfa for the sheep and cattle.
Q. Right. For the sheep and cattle. Is that -- and no corn
or anything like that?
A. No.
Q. Too -- was it too short a season for corn?
A. Too short of season. Wrong type of area.
Q. Right. Okay. And so you all didn't have anything to do
with fertilizer or anything like that?
A. No, we did not.
Q. Did you ever use or people in your area ever use explosives
to, you know, blow stumps to clear a field, to ditch, anything
like that?
A. Maybe a beaver dam once in a while or something like that,
but not very often.
Q. Okay.
A. That I can remember.
Q. So as you come in here, you don't have a lot of experience
with explosives in life?
Juror No. 202 - Voir Dire
A. No.
Q. And in your construction work, have you ever used
explosives?
A. Once in a while, we do for blasting rock; but it's not
something we're involved with on a direct basis.
Q. You get a --
A. Preferably, there's never any rock in there.
Q. I understand. Somebody comes in and does that for you
then?
A. Yes.
Q. Okay. You understand why I'd be asking the questions.
It's -- you know, there may be some evidence in this about the
ins and the outs and the technicalities and so on of
explosives, and you'd be able to listen to that without
bringing your own prior experience to bear on it?
A. That's true.
Q. Okay. Could you turn to page 12 of your questionnaire,
sir. Because I -- it may be that the copying machine did it.
55A, could you -- I can't read what that first word is there.
A. "Covenant."
Q. Oh, "covenant." Okay. And in -- in your church, are there
any particular teachings about the issue of capital punishment?
Have you talked about it with folks that you go to services
with?
A. No. I don't recall that coming up as an issue in our
Juror No. 202 - Voir Dire
church.
Q. Okay. And you mentioned that you have read books by John
Grisham and Scott Turow. Now, they write about the criminal
justice system. Can you remember what books you've read of
theirs?
A. You know, I don't read very much, but I think it was
Presumed Innocent, and there was one other book. I don't
remember --
Q. Okay.
A. -- the names offhand. It's been a while back.
Q. I understand. Well, did you form -- did that influence
your opinions about the criminal justice system and the -- the
one that you read?
A. No. But I thought it was entertaining reading.
Q. Yeah. Okay. And did you see the movie?
A. Yes, I did.
Q. Okay. Now, there was a case with lots of twists and turns;
right?
A. Yes.
Q. And I mean -- and as I remember it, it was the very last
thing that you heard or saw that told you who did the killing;
isn't that right?
A. That's right.
Q. The wife came in with the hammer? Well, the reason I ask
it is that we as a defense -- as the defense, we go second.
Juror No. 202 - Voir Dire
And, you know, this is a case in which the Government has a
theory that Mr. Nichols is involved. They filed these charges.
They go first. They present their evidence. We cross-examine
every one of their witnesses, which is a way we can put in, you
know, evidence of our own. But then even though we're not
obliged to, when they are done, we will present witnesses
and -- and evidence. And at the end of the case, the jurors
listen to the judge's instructions on what the law is and then
go back and deliberate. So in -- in one sense, it is like the
book.
Do you think you can hold an open mind and not make up
your mind until you've heard the very last thing and the
instructions and then go back and be talking about it with the
other jurors?
A. Yes, I believe I could.
Q. Okay. Well, I want to talk a little bit about -- oh, let's
see. You had a suit with the SBA; is that right?
A. Yes, I did.
Q. Was that a long time in the past?
A. It was '88.
Q. Okay.
A. 1988.
Q. Okay. Is there anything about that experience that has
affected your views of the federal government, the justice
system or anything like that?
Juror No. 202 - Voir Dire
A. No.
Q. Okay. Was that in state court?
A. Started out in state and the SBA took it to Federal Court.
Q. I see. Was it -- was it in this courthouse then?
A. Yes, it was.
Q. Okay. Do you remember what judge presided over it?
A. Federal Judge Kane.
Q. Judge Kane. All right. And if you could turn, please, to
page 31 of your questionnaire. Question 133, it says, "Not
sure. Various news programs."
I just want to ask you if you'd thought about that
some more. Do you remember any statements by, you know, any
public officials, the President, governor of Oklahoma, so on,
anything that sticks?
A. Probably the only thing I can remember is the statement
with President Clinton after it happened that they were going
to find out who did this and bring swift justice or something
to that effect.
Q. Uh-huh. Okay. How do you feel about the fact that here we
are more than two years later and we're picking a jury? I
mean, did -- are you disappointed in how long it's taken to get
this case to trial?
A. No. I think with my experience in the past, there were
lawsuits in business that seems like this is how our courts are
and the action it takes and the time it takes.
Juror No. 202 - Voir Dire
Q. Okay. So you don't have any problem with that? You don't
hold that against us or against the Government or anybody?
A. No, I do not.
Q. Okay. And you understand that the case was in Oklahoma and
then Judge Matsch moved it here and then there were two trials
and it is pretty complicated -- it's a pretty complicated case
to get ready for?
A. Yes, I understand that.
Q. Okay. You mentioned when the prosecutor was talking, you
don't remember anything specifically about Mr. Nichols. Do you
remember anything generally? Can you just tell me whatever it
is you remember from reading in the media about Terry Lynn
Nichols.
A. You know, the only thing I remember was there was two
individuals and possibly a third that they were looking for at
one time and that -- that Mr. Nichols had a brother and that
they were on a farm. And I think that's kind of the general
overview of what I remember.
Q. Okay. Do you remember where -- according to the media,
where Mr. Nichols was on the day of the bombing?
A. No, I do not.
Q. Okay. Well, let me turn then to this question of penalty.
Now, as the Judge said, we have to presume we're not going to
get there because we presume Mr. Nichols is innocent. He
starts with a clean page. And there will be this process, the
Juror No. 202 - Voir Dire
Government presenting evidence, us presenting evidence. If
there's a reasonable doubt at the end, if the jury says not
guilty, we all -- it's over. But if for some reason a jury
finds Mr. Nichols guilty of one or more of these charges, then
we can't bring everybody back in and start saying, well, what
do you think about this.
Have -- before today, before you got -- before you
came out to Jeffco, had you thought about the question of
capital punishment?
A. Well, again, I think you think about it as a society. And
I think -- but not specifically just on this particular case
or --
Q. I understand. Have you -- did you read any of the coverage
about the Gary Davis execution that took place about a little
more than -- I guess ten days ago in Colorado?
A. Yes, I have.
Q. And what did you think about that?
A. You know, I guess I believe that if somebody created -- did
the crime, that I could have an opinion that the punishment
should be equal, probably.
Q. Okay. And how long -- how long do you remember, you know,
having that view? What --
A. You know, I think for some time. I think for some time
that the -- and again, there's probably all sorts of
circumstances without knowing the particular case or the
Juror No. 202 - Voir Dire
individual, but I think that I felt like that if you take a
life, that that's something pretty serious, and I think that
because of that doesn't necessarily mean you should always just
get life in prison.
Q. Okay. And when you say it doesn't always necessarily mean
you should get life in prison, that's where I wanted to pursue
just a little more. In -- under our system, that is under the
federal Constitution, under the federal law, there's no such
thing as an automatic death penalty. Now, that doesn't -- what
that -- what that means is that it doesn't matter what the
crime is. There's always more to consider. Do you -- you got
that from the Judge?
A. I understood when the Judge told me that.
Q. And so could you imagine yourself as a juror -- if you had
convicted somebody of taking -- intentionally killing a number
of people, could you contemplate, consider a life sentence for
that person as being appropriate?
A. Possibly. Yes.
Q. Okay. And when you say "possibly," what are you thinking?
A. Well, I guess I wouldn't know all the circumstances. I
mean, if -- again, if he was a part of three people, there was
a crime that was committed where there was an act of murder,
but maybe he was sitting in the car, so I mean --
Q. Okay.
A. I mean, I suppose that's a possibility. But I believe that
Juror No. 202 - Voir Dire
if there was a deliberate act and that individual created a
murderous scene and it caused somebody's death, that I could
convict them of that crime, provide the death penalty, I guess.
Q. Okay. So you've thought about -- you said -- the situation
of different roles is the sort of thing that the Judge was
talking about. And you say "a deliberate act." What did you
have in mind there?
A. Well, I would say if somebody, you know, viciously stabbed
somebody or mutilated somebody or, you know, killed somebody,
that that's a vicious act, to me.
Q. Okay.
A. Intentions were not to go in there for some other reason,
but they went in there for that --
Q. Right.
A. -- deliberate reason to hurt somebody.
Q. And for that person, would you be willing to listen to
evidence that that -- about that person's childhood and their
background and their growing up and so on, all the things that
had happened to them during their life as an -- as an
individual?
A. Yes, I believe so.
Q. Okay. And my question is, if you found that somebody had
deliberately gone to a place to kill somebody and then carried
out that design, could you consider a life sentence for that
person?
Juror No. 202 - Voir Dire
MR. MACKEY: Objection, Judge.
THE COURT: Overruled.
JUROR: Possibly, but I think they would have to
really show me some evidence of something in the past that was
so extreme that would maybe change my decision.
BY MR. TIGAR:
Q. Okay.
A. As I sit here today, I would probably say I'm more inclined
to follow through on a death penalty than I would not to, but I
just -- I think, as I stated in my questionnaire, I can have my
mind changed. And I understand the different things you need
to think about to reach a decision. And I'm not so
close-minded that I wouldn't do that.
Q. Okay. And when you say "something in their past," what
were you referring to?
MR. MACKEY: Objection, Judge.
THE COURT: Overruled. If you -- if you can think of
something there.
MR. TIGAR: Yeah.
JUROR: I can't think of anything specifically, but I
just think as the Judge's instructions talking about the
different circumstances that either a judge or a juror would go
through in deciding that death penalty, that you need to look
at all aspects. I mean, I can't think that you can just make a
decision before listening to all the evidence and listening to
Juror No. 202 - Voir Dire
everything that was presented to you before you make your final
decision.
MR. TIGAR: Thank you very much.
JUROR: Okay.
THE COURT: We do appreciate -- excuse me -- your time
both yesterday and today and indeed, back on the -- September
the 17th and all that's involved here.
So you're going to be excused now. We'll not be able
to tell you right now whether you're going to serve or not
serve, but it won't be long. And we'll get back to you. If
anything happens here that in any way changes your
availability, give us a call.
JUROR: Okay. Thank you.
THE COURT: And of course, operate under the
assumption that you'll be back here on the jury, so continue to
follow the cautions about avoiding discussion and avoiding
publicity relating to the case.
JUROR: Okay.
THE COURT: Thank you. You're excused for now, and
we'll get in touch with you.
MR. TIGAR: Your Honor, may I approach briefly?
(At the bench:)
(Bench Conference 52B1 is not herein transcribed by court
order. It is transcribed as a separate sealed transcript.)
=0D
(In open court:)
THE COURT: Good morning. Would you please raise your
right hand and take the oath from the clerk.
(Juror No. 431 affirmed.)
THE COURTROOM DEPUTY: Thank you.
THE COURT: Please be seated there in the chair by the
microphone.
And you don't have to worry about the microphone. You
don't have to lean into it or something. It will pick you up.
Just be comfortable. And it is not broadcasting, you know.
That microphone is just there for us to help us hear you.
Also, apologize for this little confusion in the door.
I was going to visit with the lawyers in the case privately
here for a minute, and my assistant there didn't realize it.
So it has nothing to do with you that we brought you in, took
you out and brought you back in. Okay?
JUROR: Okay.
THE COURT: So we apologize for that.
VOIR DIRE EXAMINATION
BY THE COURT:
Q. Now, you know, of course, from a summons that you received
back in July and -- that you are among those who have been
summoned for possible jury duty in connection with the trial of
the case of the United States against Terry Lynn Nichols.
You have to answer out loud --
Juror No. 431 - Voir Dire
A. Yes, sir.
Q. -- so the answers go into the record. And you responded to
that questionnaire -- I mean to that summons with answering a
short questionnaire?
A. Yes.
Q. Including a concern about financial impact of jury service.
And, you know, I saw that. I didn't ignore it. And then,
though, directed you to come out to the Jefferson County
Fairgrounds' auditorium building on September the 17th to
answer a much longer questionnaire, and you complied and did
that.
And at that time, I was there and introduced myself
and also introduced people who were there with me. And they
are here again, so let me introduce them again so you know
who's here with us this morning.
First, lawyers for the Government, Mr. Lawrence Mackey
and Ms. Beth Wilkinson, who are here at the front table; and
Mr. Patrick Ryan, Mr. James Orenstein. They were not there at
Jefferson County but are additional lawyers for the Government.
You also were introduced to Mr. Michael Tigar and
Mr. Ronald Woods, attorneys for Terry Nichols; and of course,
Mr. Nichols, the defendant, was present.
And I then gave some explanation about the background
of the case and then asked you to fill out this very long
questionnaire, and you did and turned it in. And we made
Juror No. 431 - Voir Dire
copies for the people who were here participating in this
process, and we copied it for the sole purpose of this process
so that the information that you've provided to us has not been
made public in any way. We respect your privacy concern.
And also, we, you know, will arrange it so that your
name is not public here. And the way in which you go and come
from the courthouse is not public, either, in the sense that
photographers for the press or whatever can't photograph you.
And in the course of the questioning that we'll do
here, we'll also try to avoid things that would identify you.
Again, that's just a -- a matter of trying to balance out your
own personal privacy interests and the public interest in the
proceeding. But what happens here in the courtroom, of course,
is public. This is a public trial, and therefore, what I say
and you say and anybody else says is public. You understand
these points?
A. Yes, I do.
Q. Okay. And you know that this case is here because of an
event in Oklahoma City, Oklahoma, on April the 19th of 1995
when a federal office building there was destroyed by an
explosion that killed and injured people in it. Charges were
then filed in Oklahoma City in the Federal Court there by
counsel for the Government in the form of what's called an
indictment, which is simply a statement of accusations. And in
that indictment, the Government's lawyers have accused a man
Juror No. 431 - Voir Dire
named Timothy James McVeigh and Terry Nichols -- and then the
indictment says "and other persons not named" -- with entering
into a conspiracy or an agreement, a criminal agreement to bomb
that building and to kill and injure the people in it.
The indictment then includes other additional charges
in addition to the conspiracy, and these charges are
essentially that in addition to conspiring or agreeing or
planning to do that, the defendants actually carried out the
plan, did bomb the building with that intent to injure and kill
people in it. And the indictment includes some eight charges
of first-degree murder, premeditated murder of the -- of eight
persons who were in the building who died in the explosion and
who were law enforcement officers of different national
government agencies.
To these charges, the defendants entered pleas of not
guilty, thereby creating the issues for trial.
The case then was moved from Oklahoma City here to
Denver because of a concern about having to ask people in
Oklahoma to sit on the jury. And then after the case came here
to Denver, I separated the defendants for trial, finding that
fairness required that one jury hear the evidence as it may
relate to Timothy McVeigh and decide that and a different jury
hear whatever the evidence may be respective of -- relating to
Terry Nichols.
And there has been a trial of the evidence concerning
Juror No. 431 - Voir Dire
Timothy McVeigh. The jury was selected in that case, heard the
trial, heard the evidence, and returned a verdict of guilty as
to him. Then, the jury was required to hear more at a second
trial or a penalty phase hearing and returned a recommendation
for the death sentence for Timothy McVeigh. That's over.
Now we're here to select a jury and begin the trial of
whatever the evidence may be as it relates to Terry Nichols,
and nothing that was introduced at the McVeigh trial can now be
considered with respect to Mr. Nichols. We start all over with
a clean slate. And of course, the verdicts in the -- of the
jury in the McVeigh case cannot be considered now as having
anything to do with Mr. Nichols. Do you understand these
points?
A. Yes, I do.
Q. Okay. Now, I want to turn directly to one of the things
here that concerns you and -- and you expressed it and of
course, we're interested in it even though -- even though you
were asked to go forward after initially saying there would be
a financial hardship. And as I understand it, comparing your
original questionnaire with what you gave us on September the
17th, you changed jobs?
A. Yes, I did.
Q. In between the -- the two questionnaires. And as of
September 17, when you filled out this long questionnaire --
and you have it in front of you, do you?
Juror No. 431 - Voir Dire
A. Uh-huh.
Q. Okay. You had started with a new employer, and you show --
you tell us who it is on page 9. And we're not asking you
about the name. We can read that. You started that, what,
about the first week of September?
A. September 8 was my first day at that job.
Q. Okay. Now, when you got that job, did you talk to whoever
supervises you or whoever at the personnel department, or
whoever, about your being subject to the jury summons?
A. Yes, I have.
Q. And also, again, after Jefferson County or --
A. Pardon?
Q. Well, did you talk to them again after Jefferson County?
A. Yeah.
Q. After --
A. I received --
Q. -- it got a little closer?
A. -- a phone call requesting my presence here at work.
Q. Okay.
A. And then I told them that's what the phone call was for.
Q. Right.
A. They said, well, you've got to do what you've got to do.
Q. Okay. And I don't know this employer, how big a shop it is
or -- I understand the kind of work you're doing. But what
was -- what is this employer's position as you know it
Juror No. 431 - Voir Dire
regarding your pay?
A. He won't pay me for this. It's --
Q. Is it a small shop?
A. It's a small shop. He employs probably 20 people, office
and shop.
Q. Okay. So you would be having to rely just on your jury
pay. Is that --
A. My jury pay and my wife's income.
Q. She is working now?
A. Yes.
Q. But you have one very young child?
A. 19 months.
Q. Who takes care of the -- your son?
A. He's -- he's at in-home day care when we're both at work.
Q. Yeah. And that costs you; that's expensive --
A. Yes.
Q. -- type care. So given what you know now and the situation
with your new employer, what is your ability to serve on this
case and survive financially?
A. Financially, it would be tight, but I think we could
probably survive.
Q. Okay. And you're willing to undergo that?
A. If I'm selected, I'm going to have to.
Q. Talk it over with your wife?
A. Yes, I did.
Juror No. 431 - Voir Dire
Q. We would expect you to.
A. Yeah.
Q. I mean, that doesn't come under the "don't talk about it."
Obviously, we would expect you to talk about it. And what is
her attitude about what would happen to the family and your
serving here? I mean, what I'm -- you know, there are private
conversations here, but has she said -- has she suggested,
well, do what you can to get out of it?
A. No, she hasn't suggested that. We just have some concerns
about a lengthy trial would be more of a burden than a short
trial, evidently.
Q. Well, sure, yeah. And of course, we can't predict the
length of this trial; but in those terms, it's lengthy.
A. Yeah.
Q. And you understand that?
A. Yes, I understand that.
Q. Okay. So it's sort of like being drafted to you? I mean,
you would serve if called upon, but you'd rather not?
A. Well, hopefully, it won't be as long as the draft.
Q. I don't think it will be, but it's sort of like the draft;
for the duration, however long it takes, you know.
A. Yeah.
Q. Well, let's talk about a few more of the things here that
relate to you personally. And we're not going to go over this
whole questionnaire again. I mean, don't be concerned about
Juror No. 431 - Voir Dire
that. I'm going to ask you to explain or expand on a few of
these things and review a bit of your history here and also ask
you some other things; and then when I'm completed, a lawyer
for each side will have an opportunity to ask you some
questions. So bear with us yet a while for more questions
after answering all these that you did. And I want to review
just a moment what is involved in jury service, because you
haven't been on a jury, have you?
A. No, I haven't. I've been called for jury service three or
four times in my life, and I've never been seated.
Q. Okay. Have you gone through a process like this?
A. No. This is as far as I've got.
Q. Okay. Well, I want to just review with you then for a
couple of minutes what the system is, what is required of
jurors. And first of all -- and these are things that are so
fundamental that they apply to every case in the United States
because these are the commands of the Constitution of the
United States. And so it doesn't make any difference with
respect to these points what the crime is, what the court is,
who the defendant is, because it's so basic that it's true of
all criminal trials.
First of all, the law says that any person who is
accused of any crime in this country is presumed to be innocent
of it, and it is not up to the person who is accused of a crime
to prove himself to be not guilty of it. The accusing
Juror No. 431 - Voir Dire
government, whether it's local, state, or national -- and in
this case, it's the federal government charging these things.
It's up to the Government to prove the accusations made against
the accused by bringing in the witnesses and bringing in the
exhibits and the evidence that's relied on. And the defendant,
as I said, has no burden or duty of calling any witnesses or
introducing any evidence, and there is certainly no requirement
that a defendant take the witness stand and answer any question
or offer any explanations to the jury. A defendant can simply
remain silent throughout his trial and require the prosecution
to prove what it's charged and challenge that proof by the
cross-examination of the witnesses called and by objections to
admissibility of evidence and so forth.
At the end of the taking of the evidence, the court
then gives the jury some detailed instructions about the case.
And this is at the time when the court instructs the jury about
how to consider certain types of evidence that was received at
the trial and also what the particular elements of each offense
charged are, what has to be proved in detail, and then asks the
jury to decide whether the evidence that they've seen and heard
shows the defendant guilty and shows it beyond a reasonable
doubt. Understand?
A. I understand.
Q. And included in these instructions at the end of a trial in
a case in which a defendant does not testify is the caution
Juror No. 431 - Voir Dire
that the jury must not consider that in any way, because the
Constitution says that nobody who is charged as a defendant has
to offer any explanations or testimony. The jury may not hold
that against them in any way and cannot speculate that, well,
you know, what is he trying to hide or give the thought that,
well, if I were innocent, I'd sure take the stand and testify.
That's out of bounds, can't be considered. And what I tell
juries in those situations is you can't even talk about it;
that is, that a defendant didn't testify. Understand?
A. I understand.
Q. And then, as I say, the jury is required to decide does
this evidence, disregarding anything that wasn't presented as
evidence at the trial -- does this evidence prove these
essential elements of each crime charged beyond a reasonable
doubt. If the answer to that is no, if the jury has a
reasonable doubt as to the sufficiency of the evidence to show
the crime, prove it, then the jury has the obligation to give
the defendant the benefit of that doubt and find him not
guilty. Do you understand?
A. I understand.
Q. Do you agree with these principles?
A. I agree with them.
Q. Are you ready to follow them in this case if you serve in
this case?
A. Yes.
Juror No. 431 - Voir Dire
Q. So as you understand, as Terry Nichols sits here this
morning, he's presumed to be innocent of these charges made
against him?
A. Yes, I understand that.
Q. Now, turning to some of the things you told us about
yourself on the questionnaire, as I understand it, you were
born and raised in Michigan and went to high school there. And
is the town where you went to high school -- is that near Port
Huron?
A. Yes. I grew up in a real small farm town, and Port Huron
is where we got our groceries and --
Q. Yes. So the town is just kind of a -- a -- well, how big
is the town? A few hundred people?
A. Where I grew up, yes.
Q. Yeah. So that's why the school was in Port Huron and --
A. I did not go to school in Port Huron.
Q. You went to school --
A. In Yale.
Q. Yeah. You did go to -- okay. I'm wrong about that.
Sorry. That's what you said. And was that like a consolidated
school, serving more than the people in town?
A. The one high school served about four or five different
elementary schools, so it was a town -- a school district.
Yeah. It served more than just that one town.
Q. It served a rural area as well as in the town.
Juror No. 431 - Voir Dire
A. Yes.
Q. And did you live on a farm?
A. My father was not a farmer, but I lived right next door to
his two brothers that were.
Q. I see. And that's what -- on page 6 at 29 there, I was a
little confused about what that said, and now I think you've
explained it.
A. I've been raised in town. I tell people I was raised on a
farm because I spent so much time helping my uncles, but my
father was not a farmer.
Q. Okay. But his brothers were?
A. Yes.
Q. And --
A. He was raised on a farm.
Q. And you were, in terms of working on the farm?
A. Yeah.
Q. And what kind of farm was it in terms of the size and the
crops grown?
A. My one uncle had a small dairy farm. He milked about 20
head. And then my other uncle, he inherited a farmhouse, and
he basically just farmed to keep the brush down; and he had a
full-time job with a car manufacturer.
Q. All right. So what kind of jobs did you do over on these
farms?
A. I shoveled a lot of manure and baled a lot of hay.
Juror No. 431 - Voir Dire
Q. All right. Now, you then -- and you've got brothers and
sisters back in Michigan now; right?
A. Yes, I do.
Q. And you've got -- I'm looking at page 3, and I'm having
trouble reading -- reading -- there's Port Huron there where
your brothers are, but -- is it Emmett?
A. Yes. Emmett.
Q. What -- where is that in Michigan?
A. North of Port Huron. It's -- that's the real small town
that I was raised in, and my five sisters live in Emmett or
Emmett Township, and then I have two brothers. One lives here.
Q. Yeah.
A. The other one lives in the Port Huron area.
Q. Okay.
A. They are all basically within 20 miles of my parents'
house.
Q. Are your parents still living?
A. Yes.
Q. And you are in communication with them one way or another
over --
A. Oh, we keep contact and send Christmas cards and birthday
cards and call to complain about the snow.
Q. Okay. The sort of normal things with families?
A. Yes.
Q. Did you ever have any discussion with any of them regarding
Juror No. 431 - Voir Dire
this matter that you're here on?
A. They don't know I'm here. But when the bombing occurred,
of course, we touched on it in our phone conversations, but no
lengthy conversations.
Q. All right. And so when was the -- was it two years ago or
so when this happened that you had any of these conversations?
A. Yeah. It was two years ago when the bombing first
occurred, and then my mom touched on the fact that the trial
was there in your home -- in Denver, and I says yeah. And
basically gossip.
Q. Little knowing how close you might be to that trial --
A. Yeah.
Q. -- right? Okay. Now, on page 11 and 12, we asked you some
questions about family members engaged in certain kinds of
work. And you marked several of them there. I just want to
review that with you. You've got Department of Treasury
marked.
A. My -- my wife is employed by the IRS.
Q. Okay. That's who that refers to. And you have Justice,
but you struck that out. That was a mistake; right?
A. Yes.
Q. And then you've got IRS marked again, and that's your wife?
A. Yes. That's the only government employee in my family.
Q. All right. And the farming, that's what we've already
talked about?
Juror No. 431 - Voir Dire
A. Yeah.
Q. Your uncles. And newspaper, magazine or journals, what --
who works in that kind of work? Or did?
A. Nobody.
Q. Well, am I wrong that there's a checkmark there?
A. Oh, which -- which page?
Q. It's page 12. I'm sorry.
A. Page 12.
Q. On the next page.
A. No. I don't have anybody that works for a newspaper,
magazine or --
Q. So was that a mistake?
A. Oh, okay. No. That's not a mistake. My brother is a
starving artist here in town. He wants to be a writer, and
he's in Westword -- works for Westword.
Q. On a freelance basis?
A. Yeah. Kind of entry level, trying to get in there.
Q. Okay. Then on page 18, we asked you some more about
whether you had any familiarity at all with certain
organizations or groups. And you answered National Rifle
Association, Fraternal Order of Police, but you also showed New
World Order. What, if anything, do you know about --
A. I marked that down very little. I know very little about
it. A guy I used to work with was following that New World
Order, and he'd bring a lot of it to work, and I'd overhear
Juror No. 431 - Voir Dire
some of it. I personally didn't seek any of it out, but I have
overheard a little bit about it.
Q. Okay. And you also marked patriot movement?
A. Same guy.
Q. Same guy. Okay. And so same thing as far as how much you
know about it, you've overheard?
A. Very little. He'd come in sometimes and talking about it.
Q. Did you ever get any literature from him?
A. No. I've never got any literature about it from him or any
other source.
Q. Okay. And the audit by the IRS you mention on page 20,
that's a background check with -- for when your wife went to
work there?
A. Yeah. That's a pre-hire.
Q. Okay. Then on page 32, if you will turn to that, please.
And on No. 142, down there at the bottom where we asked about
explosives.
A. My friend Ed that I grew up with, probably my oldest
friend, he was in the Army, and he studied explosives in the
Army. But now, he works for a major car manufacturer, too, and
he has nothing to do with it.
Q. Is he back in Michigan?
A. He's still back in Michigan, yes.
Q. And then you've got another friend here?
A. That's the friend that came up earlier. He's a -- builds
Juror No. 431 - Voir Dire
model rockets, high-powered model rockets.
Q. So it's explosive in -- in terms of the propelling power
for the rocket?
A. Yes. Yes. And I have gone and spectated that at some of
the bigger launches.
Q. Okay. And on page 36, you mention that -- at the top there
under 154 about providing assistance to people in connection
with the rescue of this bombing.
A. Yeah. My --
Q. You mentioned IRS. Just tell us what that's about.
A. My wife sent some money to that lady in Oklahoma City who
lost her two babies. It was all over the news because they
were in the day care. And my wife, being an IRS employee, felt
sympathy for her and sent her some money and sent a little bit
of money to Red Cross.
Q. Okay.
A. Both checks were less than 100 bucks combined, but --
Q. Okay. And was there kind of a taking of a collection at
the office where your wife works?
A. No. She just -- when she saw it on the news, she just --
Q. Did it on her own?
A. Yeah.
Q. Okay. Now -- and did she get a communication back from --
A. She got a -- a form letter thank-you from the lady, the
IRS lady, and the IRS sent us another form letter, a
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thank-you -- not the IRS, but the Red Cross.
Q. Yeah. And with respect to the person working for the IRS
there, the woman, it was what you'd characterize as a form
letter rather than a hand --
A. Yeah. It was definitely a form letter. She made
photocopies of her kids (sic) and said, "Thank you very much."
Q. All right. Now, is there anything from that that you think
would influence you one way or the other as a juror here?
A. No.
Q. And of course, you know, the reason that I ask you that is
that you've probably seen, read, and heard a lot going back to
April of 1995 when the event happened and since, as many people
have. What jurors have to do, though, as I've already
discussed with you, is to decide on the basis of the evidence
presented at the trial. You understand that?
A. I understand that.
Q. Now, we also asked you some questions in here about
punishment, and I'm going to turn to page 28. And you see
those questions and answers that are there?
A. Yes, I do.
Q. And again, over on 29, there's a -- an answer. Do you
remember coming to this part of the questionnaire?
A. Yes, I do.
Q. And you also -- I don't want to ignore what's on page 27
there at 124, which is the part that sort of gives an
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explanation about why these questions are on the questionnaire.
Do you remember that part?
A. Yes. I remember that part.
Q. Okay. And just to make it clear to you, we needed to ask
you some questions about whatever opinions you may have
concerning the use of the death penalty and the use of a
penalty of life in prison with no possibility of ever being
released from it as punishment for crimes because of the
statutes that are involved in this case and the possibility
that a jury selected in this case may have to make a decision
about punishment. But of course, as explained in detail here,
that should not be considered as any kind of suggestion or
thought that the case would result -- the trial would result in
a guilty verdict, because of course, the presumption is just
the reverse of that, as you have already recognized. But it's
necessary to find out something about your thinking here,
because what we all know is that the death penalty and even the
penalty of life in prison with no possible release are things
upon which there's a division of opinion, public opinion. And
of course, it goes from one extreme of saying that anybody who
kills another person should be put to death himself, life for
life, and then there are those who say, well, it's wrong to
impose the death penalty, that's not something for a Court to
do, and a lot in between. Right?
A. Right.
Juror No. 431 - Voir Dire
Q. And just tell us when this -- when on September 17 you came
to this point in the questionnaire, was this the first time you
thought seriously about these issues or is it something you
talked -- you had thought about before?
A. I've thought about it briefly in the past, but I gave it
more attention because of getting closer to this.
Q. Yeah. So now it comes into a much clearer focus for you?
A. Yeah.
Q. And have you thought about it since these answers?
A. Yes.
Q. And in the -- and, you know, we would expect that you might
have. Do you have any change in what you've answered here?
Because if you do, it's perfectly okay to tell us what you
think today.
A. I still think the same as what I put on here.
Q. All right. So if I ask you these same questions today,
you'd give me the same answers, I take it?
A. Yes, I would.
Q. And you mention here that, first of all, you agree that
there ought to be such a penalty for certain situations.
A. For severe crimes, yes.
Q. All right. And you also have identified in C and D the
possible type crimes you're thinking of with respect to life
imprisonment and the punishment of death. Right?
A. Right.
Juror No. 431 - Voir Dire
Q. And you mention premeditated murder there under D; right?
A. Yeah.
Q. Now, I want to review with you what the law actually is
with respect to this issue, because we didn't tell you that in
the questionnaire, as you know. And first of all, we are in
Federal Court, following federal law. You understand that?
A. Yes, sir, I understand that.
Q. And of course, there are differences among the states about
this question of what kind of punishment is involved in murder
and various crimes. There are some states that there is no
death penalty at all. You know that, or do you?
A. I don't follow it that close.
Q. Okay. Well, again, there's this range of opinion, of
course. And state legislatures follow public opinion in those
states which may differ in the United States. But we're in
Federal Court now, and we're following federal law as passed by
the Congress of the United States and as interpreted in the
courts of the United States. So this is the way in which the
matter comes up in federal cases. In cases that don't involve
capital punishment, crimes that are different from premeditated
murder -- for example, crimes like bank robbery and post office
burglary, whatever that are federal crimes -- the jury does
what juries do in every criminal trial, decide does the
evidence prove the crimes charged beyond a reasonable doubt.
If no, the verdict is not guilty, the case is over. If yes,
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the verdict is guilty, the case is still over as far as the
jury is concerned, because now it's done its duty of making
that decision, whichever way it is.
But of course, the case is not over for the defendant
or the defendants because there is yet the question of
sentencing, what should be done. And in cases that do not
involve capital punishment, that decision about what should be
done is a matter for a judge. But a judge doesn't make that
decision based just on what happened at the trial, what the
evidence was at the trial, because it is necessary to hear a
lot more and consider more than the evidence at trial. And
therefore, the court gets information -- additional information
about the crime and its circumstances, its consequences and
also, more information about the defendant or defendants. And
the information about the defendants includes just about
everything there is to know about a person, life story, the --
you know, some of the things you told us, for example, about
yourself but more than that: where this person was born and
raised, what were his circumstances, what's happened in his
life, where did he go to school, what -- how far did he go in
school, what was the school experience, what about jobs, what
kind of jobs has he had, marriages, divorces, children,
military service, all of those things that go together to make
each individual life and the things that make us all different.
Understand?
Juror No. 431 - Voir Dire
A. I understand.
Q. And the information about the crime and its circumstances
can also include the role in the offense, cases where there's
more than one defendant involved as in the case, for example,
of a bank robbery which is a federal crime. You could have a
situation where three persons did it: one went in with a gun,
held people up; one went in and scooped up the money; and the
other drove him away. Those -- crimes like that happen. So
you know, you could have -- this judge could have three people
there to be sentenced.
And then after all this information is gathered, the
judge hears from both sides, the lawyers on both sides, and
then makes a decision individual to each person being
sentenced. So it isn't just crime equals time. It is crime
plus the person being sentenced and what is the just and
appropriate sentence for this person and his participation in
the crime. Do you understand?
A. I understand.
Q. Now, when it is a case of intentional killing of other
people, murder, in the federal courts, there is the possibility
of punishments of life in prison with no possibility of ever
getting out, the person dies in prison at his time; or death by
execution; or a lesser punishment than those two. And what the
Congress has provided in these statutes is that the decision
about life or death should not be made by a judge. That should
Juror No. 431 - Voir Dire
be done by a jury, the same jury that heard the evidence and --
and found the defendant guilty.
But what the law also says is that a jury can't decide
that question just by finding the person guilty because there's
no automatic sentence. It doesn't result, you know -- a
verdict of guilty of a person who had some involvement in the
murder of other people does not automatically require one type
of sentence, so the jury has to hear the same kinds of things
that a judge hears for other kinds of sentencing decisions.
And there is, therefore, a second stage trial or hearing, and
it proceeds just like the trial, itself, on the evidence, with
both sides participating through lawyers. Witnesses are
called. Exhibits are received in evidence. And the evidence
that comes in includes these things about -- more about the
crime than the jury heard at the trial of the evidence, what
its effects and consequences were; more about the relative role
of the defendant, if there's more than one involved -- not just
at trial, but more than one involved in the -- in the event,
you understand.
A. I understand.
Q. And then all of this information about the defendant as an
individual and unique human being, because what the law says is
that before you can decide to take a person's life, you ought
to know a lot about the life you're taking. Understand?
A. I understand.
Juror No. 431 - Voir Dire
Q. And then at the end of the second stage trial, the court
sums it all up in instructions and says, now, these are the
things that you've heard, and then divides up the information
into really two classifications, two categories: On the one
hand, things that are referred to as aggravating factors or
aggravating circumstances, things that may suggest to the jury
that death is the deserved punishment for this person and this
crime; and then also, mitigating factors, the things that are
presented to the jury that may suggest to the jury that despite
the crime, the defendant as an individual human being does not
deserve to be put to death for the crime, and then may give the
jury some questions to ask themselves to assist in the analysis
of these factors.
But there's no formula for it. There's no equation.
You don't say so many points on this side, so many points on
that side, whichever is the greater number of points. It
doesn't lend itself to that kind of a decision. What it does
involve is a decision that amounts to a reasoned moral judgment
about whether another person should live or die based upon
everything that has been heard and presented to the jury. You
understand?
A. I understand.
Q. And of course, the jury is going to talk about it. There
are 12 people on the jury. They are going to talk about it,
exchange views and their beliefs about the evidence and what
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should be done. But in the end, each juror has to make a
decision as to whether the defendant found guilty should live
or die. And that decision has to be based on everything that
has been presented, the aggravating, the mitigating factors.
You understand that?
A. I understand.
Q. Can you make such a decision?
A. Yeah.
THE COURT: All right. Okay. We have questions here
from counsel.
Mr. Ryan for the Government.
MR. RYAN: Thank you, your Honor.
VOIR DIRE EXAMINATION
BY MR. RYAN:
Q. Good morning.
A. Good morning.
Q. My name is Pat Ryan. I'm the United States Attorney in
Oklahoma City. I'm here with fellow prosecutors to present the
case involving Terry Nichols. You doing okay?
A. Yes.
Q. Okay. Let me just ask a few questions about where you grew
up. I'm not exactly as -- I'm not as familiar as Judge Matsch
is with where Port Huron is, so could you tell me a little bit
where it's located in Michigan?
A. It's in the lower Thumb area of the lower peninsula of
Juror No. 431 - Voir Dire
Michigan. It's, oh, about an hour north of Detroit.
Q. Okay. Did -- you said that you had worked on farms growing
up. Your uncles' farms?
A. Yes.
Q. Did -- did you ever use explosives as part of your work on
the farm?
A. No, I didn't.
Q. Did they?
A. I've heard stories about my uncle clearing farmland,
removing trees with explosives, but I've never even witnessed
anything.
Q. Do you know anything about what kind of explosives?
A. No. I don't. I just know when he got that land, it was a
forest, and now it's farmland.
Q. Can you tell me what you've read, seen, or heard about
Terry Nichols?
A. Very little. I know he's from Michigan because I'm from
Michigan, and that caught my ear right away. But I know very
little about him.
Q. Do you know whereabouts he's from in Michigan?
A. Yes. Kind of, sort of. I've never visited his town, but I
know where it's at. It's roughly, I'm going to say, 40 miles
north.
Q. Do you know anyone that knows him or knows his family?
A. No, I don't.
Juror No. 431 - Voir Dire
Q. I mean, you know, have you talked to any of your relatives
back in Michigan and somebody say, well, yeah, I know his uncle
or I know his brother?
A. No.
Q. Now, you indicated that your wife, after hearing of the
bombing in Oklahoma City, made a donation to one of the
victims.
A. Yes.
Q. Do you know the name of that person?
A. No, I don't. I just know it was a lady who lost two
children.
Q. Do you know the names of the children?
A. No, I don't.
Q. That was, I take it, her decision alone?
A. Yes, it was. The check was in the mail, and I found out.
Q. Okay. All right. Is there anything about that that would
make you lean in favor of the Government in this case, the fact
that your wife had made such a donation?
A. No.
Q. And I take it there's nothing about the fact that you're
from the same state as the defendant that would make you lean
in his favor?
A. No.
Q. Now, let's talk about this fellow at work who was in the
rockets and the New World Order and the patriot movement.
Juror No. 431 - Voir Dire
A. I don't work there anymore. But he's really into firearms
is what he's into. And he collects them and -- and he's
more -- real worried about losing his right to own them, and
that's why he follows their newscasts and whatnot. But he's
not a member of any group. He just wants to make sure he can
keep his guns.
Q. And do you share -- did you share his concern about his
losing his guns?
A. No. I don't --
Q. I mean, how would you describe your friendship, if that's
the word I'm going to use, between you and this individual?
A. Just as good as with any other co-worker. And though I
have in off time gone and spectated a couple rocket launches --
but he hasn't been over for dinner and I haven't been over to
his house for dinner or --
Q. Did he explain to you what the principles were of the New
World Order?
A. No. In fact, that's kind of become a joke there.
Everybody picks on him a little bit for following it as close
as he does, but I don't share any opinions with him. I kind of
stray away from it, try not to talk politics at work, you know.
Q. Okay. Let me, if I might, use the remaining time I have to
talk to you about this issue of the death penalty. And you
understand that we only get to this phase in the event of a
conviction.
Juror No. 431 - Voir Dire
A. I understand.
Q. And did you follow the McVeigh trial at all?
A. No. I overheard some things when the TV was running, but
it didn't draw me back into the room and sit me down in front
of the TV.
Q. You didn't attend any of the trial?
A. No.
Q. Or follow it closely in the paper?
A. No, I haven't.
Q. Do you know -- do you even know what the major pieces of
evidence were in that case involving Mr. McVeigh?
A. I know what some of the pieces were. I don't know if they
were major or not.
Q. Did you have a view about the verdict in that case that
found Mr. McVeigh guilty?
A. No. I don't have an opinion on that. I didn't follow it.
Didn't hear any good evidence, any bad evidence, any accurate
evidence.
Q. Okay. And I take it, you know, after that -- after the
finding of guilty, there was this second trial. Judge Matsch
was talking to you about where more witnesses came in and more
exhibits were introduced to talk about these aggravating and
mitigating factors the Judge was talking to you about. Are you
with me?
A. Yeah.
Juror No. 431 - Voir Dire
Q. You knew there was a second trial?
A. Yeah. I knew there was a sentence.
Q. Right. And did you follow any of the evidence closely in
terms of what the sentence --
A. No, I didn't.
Q. In terms of what the sentencing information was the jury
heard?
A. No, I didn't.
Q. Did you have a view as to whether the sentence was -- in
light of the fact that you didn't hear the evidence, did you
have a -- did you have an opinion as to whether that was the
correct sentence for that individual?
A. If they proved it without a reasonable doubt, that he
plotted and carried it out, then, yes, I do.
Q. Now, you understand there's a -- the fact that somebody is
guilty of the crime does not mean that they are automatically
given a death sentence.
A. I understand that.
Q. So even if a jury were to find Mr. McVeigh guilty beyond a
reasonable doubt of those crimes, there's not an automatic
death penalty. You still need to consider the evidence that
Judge Matsch was talking about with respect to the individual,
his role in the offense, and those various things.
A. Yeah. I understand that.
Q. So what we need to -- you know, what we need to find out
Juror No. 431 - Voir Dire
from you is are you going to be able to -- In the event that
you were to find a defendant guilty in a murder case, are you
going to be able to listen to this information about the
individual, about his life and about his particular role in the
offense with an open mind, considering both life imprisonment
or a death sentence?
A. Yes.
Q. Or are you just going to automatically say, well, if he
gets convicted of murdering a bunch of people, he gets the
death penalty no matter what? That's the question.
A. No. I don't -- no. I don't think -- if he's convicted
guilty, I don't think that's an automatic death sentence.
Q. You'd consider his role in the offense?
A. His role in the offense and --
Q. And the facts about him as an individual?
A. Yeah. If he's a continuous menace to society, or if he was
a Boy Scout, I don't know.
MR. RYAN: All right. Thank you very much.
THE COURT: Mr. Woods.
MR. WOODS: Thank you, your Honor.
VOIR DIRE EXAMINATION
BY MR. WOODS:
Q. Good morning.
A. Good morning.
Q. I'm the last one. The Judge and the prosecutor have
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already covered just about everything, so there's not much left
for me to talk about and I'll make it brief; and you'll be back
at work.
My name is Ron Woods, and this is Mike Tigar. And we
were appointed by the United States district judge over in
Oklahoma City in May of '95. The Government here filed charges
against Terry Nichols on May the 10th, '95; and we were
appointed shortly thereafter. They charged Mr. Nichols with
being responsible for the April 19 bombing.
How do you feel about Mr. Nichols' having
court-appointed lawyers; that is, lawyers paid by the
government to represent him here?
A. I -- I have no bad feelings. I can't afford another lawyer
myself.
Q. Okay. When you say "another lawyer," what do you mean?
A. Any lawyer. If I was on trial, it would be court-appointed
lawyers.
Q. Okay. That doesn't affect you one way or the other? You
wouldn't look upon that situation as a disadvantage for
Mr. Nichols?
A. No.
Q. Okay.
A. I hope it's not.
Q. Okay. What did you think when you saw Mr. Nichols out
there at the fairgrounds in person for the first time?
Juror No. 431 - Voir Dire
A. I was surprised he was there, but --
Q. You hadn't expected to see him?
A. I didn't expect to see him.
Q. Okay. What did you think when you saw him?
A. I really don't know. There he is. I don't know what I
thought. I was just surprised.
Q. Okay. Did you come in the morning, or the afternoon?
A. I was in the morning.
Q. Okay. Were you nearer the front, or middle, or back?
A. Toward the back.
Q. Okay. Okay. Did you have some picture in mind from what
you'd seen on television for two-and-a-half years before you
got out there?
A. No.
Q. Okay. Now, you mentioned to the prosecutor that it caught
your ear because he is from just your neighborhood right there
in the Thumb.
A. I didn't really realize how close he was to my
neighborhood. Just knew it was Michigan. That's what caught
my ear.
Q. Right.
A. And actually, my wife pinpointed it before I did, because
she called my sister: Where is Decker? You know.
Q. Right.
A. And then one time home since then on vacation, we kind of,
Juror No. 431 - Voir Dire
looking for a sign where exactly is Decker, when we was heading
out of town that way.
Q. Okay. Did you go up to the farm?
A. No. We didn't go up to the farm.
Q. Okay. Did you go over to his father's farm over in Imlay
City?
A. We didn't go that way at all.
Q. It's only just a few miles down the road.
A. Yeah.
Q. Okay. Has your wife been pretty interested in following
this case? And she knew where Decker was and called your
sister. You've got a number of sisters still living up there,
don't you?
A. Five sisters.
Q. Five that are still up there in that area?
A. Yes.
Q. Were they pretty familiar with what the events were that
surrounded that -- that episode up in --
A. I don't know how familiar they are with it.
Q. Okay. When did you go back up there on vacation?
A. My -- let me see. I can't remember. I've been back there
like twice since then.
Q. Okay.
A. See, my father's health is failing, so I spend all my
vacation time there; so while I can, still spend time with him.
Juror No. 431 - Voir Dire
Q. Now, you moved down here when you were 19, here?
A. 18.
Q. 18?
A. Right out of high school.
Q. What prompted you to move to Colorado?
A. The mountains and a free ride.
Q. A free ride here?
A. Yeah.
Q. Okay. I take it since you've been here 13 -- you've been
here 13 years now; is that correct?
A. Yes.
Q. So you're not thinking of moving back into the Thumb area?
A. No. I'm not.
Q. Okay. Are the farms still in the family, the brothers?
A. Yes. But they are kind of stagnant now. My uncle had --
doesn't have any cows. He has a couple cows, but he doesn't
sell milk anymore. He's -- he's retired. He just kind of
keeps himself busy and fiddles around and --
Q. Okay. Now, when you were living there and farming there,
did you know Dale Travis who lived just north of town there?
He's about 70 now.
A. No, I didn't.
Q. Okay. Did you ever go into the county extension service or
the soil conversation service that was downtown in that
building?
Juror No. 431 - Voir Dire
A. No.
Q. Okay. Are you familiar with the pamphlets they give to the
farmers to help them in various areas, sort of educational
pamphlets on soil conservation and crops and use of explosives
on the farm?
A. No.
Q. Okay. You've said you're familiar with one of your uncles
having done that to clear the land?
A. Yeah. It was way before my time.
Q. Because the land was cleared by the time you got there;
right?
A. Yeah. The land was clear when I got there. It was just he
inherited some land and he wanted to clear it off for farming.
I guess he inherited like 80 acres, and he had to clear 40 of
it.
Q. Okay.
A. I've heard stories about it, but . . .
Q. What did you hear? How did he do that?
A. I heard he had to take out the whole forest and he blew
some stumps.
Q. Do you know what he blew them with?
A. No. I have no idea.
Q. Okay. Did you ever use fertilizer there when you were
working on the two farms?
A. Yes.
Juror No. 431 - Voir Dire
Q. Okay. What kind of fertilizer were you using?
A. Oh, I don't know the brand. I just -- my uncle was into
the mixtures, triple 16.
Q. Okay. And he was acquiring that from a commercial dealer
there in the Thumb area?
A. Yeah.
Q. Okay. And they would bring it out and spread it
themselves, or did the uncle spread it?
A. He'd buy it in sacks, and we'd put the seed and the
fertilizer in the planter at the same time.
Q. Just--
A. Yeah. Yeah.
Q. Okay. Okay. Now, on this person that you worked with at
the prior place of employment: You said that he would bring
these pamphlets and newsletters to work?
A. No. He didn't. He just was verbal. He didn't bring
anything.
Q. Okay. Never had any pamphlets around?
A. No. He wasn't looking for recruits or anything.
Q. Okay. Okay. But you talked to him; is that correct?
A. Yeah. In the morning in the locker room, getting dressed;
and every now -- it ain't like we talked about that every day,
but he's the only person I've talked about that with.
Q. Right. And then you -- you went out to watch some of his
rocket shots; is that correct?
Juror No. 431 - Voir Dire
A. Yes.
Q. Okay. The fact that he believed that and that you might
have been seen with him like going to the rocket shots or
talking to him at work, would you think that people would think
that you likewise believed the same thing?
A. No.
Q. Okay. You've heard of the phrase "guilt by association"?
A. Yeah.
Q. What does that mean to you?
A. A lot of people believe birds of a feather flock together.
Q. Okay. I take it because of your association, it didn't
necessarily mean that you believe everything he did.
A. No.
Q. All right.
A. In fact, we disagreed a few times. He kind of sort of just
picked on me about my wife working for the government and just
poking fun, you know. Just no real hard feelings or no real
good feelings.
Q. Okay. Okay. How long has your wife been with the IRS?
A. Eight or nine years.
Q. Okay. And I noticed you put on the first form that she
helped you fill that form out; is that correct?
A. Yes.
Q. Okay. And then she's been looking into the case some and
called up to the sisters about Decker. How familiar is she
Juror No. 431 - Voir Dire
with the case?
A. I don't know. That was right after the bombing. As soon
as Mr. Nichols had been in the media news. Then when Michigan
showed up. But I don't know how close she followed it.
Q. Now, she's not from there, I take it.
A. No. She's from Colorado.
Q. She's from here. Okay. And she grew up and went to high
school here?
A. Uh-huh.
Q. And college here?
A. Uh-huh.
Q. Okay. But she's gone up there with you, I take it, on
vacations?
A. Yeah. I think she's been back there like three times with
me.
Q. She's gotten familiar with the area and the Thumb area?
A. I wouldn't let her drive.
Q. Pardon me?
A. I wouldn't let her drive or anything. She doesn't know the
roads or anything. She could find my hometown on the map.
Q. So do you drive around when you're there with her?
A. Yeah.
Q. To show her the Thumb area, where you went to high school?
A. Show her my old stomping grounds.
Q. And where you farmed and hung out?
Juror No. 431 - Voir Dire
A. I used to hunt behind my parents' house. Didn't really
travel much.
Q. What would you hunt up there?
A. We had whitetail and pheasant and rabbit is basically what
I hunted. Sometimes squirrel.
Q. Okay.
A. Squirrel population wasn't too good behind my parents'
house.
Q. Okay. Now, has your wife been following the case quite a
bit since she's connected with the government, working at the
IRS?
A. I think she's paying attention to what she hears, but I
don't think she's going out of her way to get more information.
Q. Okay. You said that she sent some money over to that lady
who tragically lost two children --
A. Yes.
Q. -- in the day-care center. And did you mention to the
Court -- I might have missed it -- that there was some note
that came back, a photocopy of the kids' photos?
A. It was a thank-you note, but it was pretty apparent that it
was a form letter. She evidently received a lot of help.
Q. Okay. And was there a photo of the kids?
A. Yeah. The photo -- I think it was a Christmas photo of the
two kids playing or something.
Q. Okay. Okay. I take it you've seen those images on
Juror No. 431 - Voir Dire
television where there was this horrible damage and the day of
the rescue and people were trying to help and the rescue
efforts, the nurses, the doctors and the dead people being
removed and the injured people being removed; is that correct?
A. Yeah.
Q. Okay. Think you'll ever forget that?
A. No. It's part of history.
Q. All right.
A. You know, everything that's part of history, you remember.
You remember when the space shuttle blew up. You -- you know,
this is part of history.
Q. Exactly. Exactly. If you were chosen on a jury in this
case, it's likely you'll see all of that over again, over and
over. There will be witnesses that will appear on the witness
stand and there'll be a lot of photos and videos of that
terrible injury, terrible death scene. Nobody contests that.
It's -- it's a fact that nobody's disputing. But it's going to
invoke a lot of emotion and heartbreak in people. Most of the
people in the courtroom will be crying.
Can you look at that evidence for what it is -- that
is, evidence of the crime that nobody disputes -- and then at
the same time look at the Government objectively and say:
Well, what have you proven that shows Mr. Nichols is guilty and
responsible for that? Can you separate those two?
A. Yes, I can.
Juror No. 431 - Voir Dire
Q. Okay. You understand how emotional it will be?
A. I have some idea.
Q. Okay. And how sometimes emotion affects people's
decisions?
A. Yes.
Q. And you can separate that out, keep them separate?
A. Yes.
Q. Okay. Was your wife pretty concerned about this fellow IRS
agent that's -- that's lost her two children?
A. I think -- well, she is concerned. She was concerned
enough to send a check.
Q. Sure.
A. But I think when we got the form letter back, that was the
end of it.
Q. I take it she's followed the case, though, fairly closely
because of that interest?
A. Probably. I don't know how close. Like I say, I haven't
noticed her going out of her way to find more information.
Q. Okay. Okay. Have you talked it over with your wife about
your jury service here?
A. Briefly.
Q. Okay. Now, you mentioned on your form that it would be a
hardship for two or three weeks. I just want to make clear
that you understand it may be two or three months --
A. I understand.
Juror No. 431 - Voir Dire
Q. -- on this case. How is that going to affect you
financially?
A. It would put us in a bind, but I don't believe we'd lose
the house.
Q. Okay. As the Judge said, nobody's asking people to go
bankrupt on jury service. It is a duty that each person has;
but, you know, we're not asking the ultimate sacrifice. If --
have you looked at the cost of the child-care center and
factored that into two or three months in this case?
A. No, I haven't added the numbers up.
Q. Okay.
A. But when I met her, I had my house and she had her house;
so she managed to support her house without me before I met
her, but now we have the additional child care. So --
Q. Did you sell your house?
A. No. I didn't sell my house, and my tenant is moving out
today.
Q. Okay. So you've had rental income coming from that, then;
is that correct?
A. As we speak, no, I don't have another renter.
Q. I'm sorry. In the past, you've had rental income coming
from that?
A. Yes. The other house paid for itself by a renter.
Q. Okay. Okay. As the Judge said, we don't want to get into
your personal conversations with your wife; but did you factor
Juror No. 431 - Voir Dire
this in about the length of the trial? Because I know you said
in your form that two or three weeks would be a hardship. And
as the Judge said, we can't tell you how long this is going to
last, but two or three months is a definite possibility.
A. Like I said, I haven't put the numbers together. I just --
at this job and my prior job, I don't get no jury pay from the
employer.
Q. Right. Right. So that income is gone.
A. Yes.
Q. And you still have the same expenses with the child-care
center --
A. Yeah. I --
Q. -- and the house notes and then plus, you're not having any
rental income for some period of time. It's unknown how long.
A. Hopefully, I'll -- I didn't look for another renter because
I wanted to paint it. And after I get it painted, I don't
think it's going to be too hard to find somebody. I'm hoping.
Q. Okay. What -- what period of time are you looking at there
for another rental income there?
A. I was hoping no more than a month.
Q. Okay. When were you going to paint it?
A. Probably this weekend, I was going to get started on it.
Like I say, it should be empty today.
Q. Okay. And you understood from what the Judge said about
the hours here; that we'd be in trial every day till 5:00 and
Juror No. 431 - Voir Dire
then on Fridays, you'd get off at 1:00?
A. Yeah.
Q. Okay. Okay. And do you think you're going to have to talk
to your wife further then to get into the finances and put the
numbers to it?
A. I don't understand the question in full.
Q. Okay. You think you're going to have to -- given the two
to three months this may last, do you think you're going to
have to have further discussions with your wife to look at what
the numbers are going to be and if you can make it without
undue financial hardship?
A. We haven't sized it all together. Yeah. Yeah. Because --
we haven't added the numbers up. We just kept saying we'll do
what happens.
Q. Okay. Okay. The Judge and the prosecutor talked to you a
lot about the penalty phase of the trial. Do you understand
that there's still going to be a first stage of the trial?
A. First stage where they have to prove him guilty?
Q. Right.
A. Yes.
Q. Okay. The Government's got a theory that Mr. Nichols was
responsible for that bombing. We don't agree with that theory.
The Government's going to have to put on witnesses to prove to
the jury of 12 people beyond a reasonable doubt that
Mr. Nichols is guilty of deliberate, premeditated murder of all
Juror No. 431 - Voir Dire
those people. We're going to cross-examine those witnesses;
and even though the Judge said we're under no burden or
obligation to present evidence ourselves, we're going to
present a number of witnesses that will contradict that theory.
And then the Judge will tell you what the law is, and the jury
will have to vote on guilt or innocence.
Do you think you could participate in that part of the
trial, in looking at the evidence objectively, without letting
all the emotion overcome you, look at it objectively, and if
the Government hasn't removed this presumption of innocence
that Mr. Nichols has and removed it beyond a reasonable doubt,
convinced this jury beyond a reasonable doubt that he's guilty,
could you return a not guilty verdict?
A. Yes.
Q. Okay. Now, you realize how tough that would be to go back
and tell your wife, the IRS agent, that you found against the
Government.
MR. MACKEY: Objection.
THE COURT: Sustained.
BY MR. WOODS:
Q. Do you think that -- that is something that you would be
comfortable in doing if -- not comfortable, but it is something
that you could do, is return a not guilty verdict if the
evidence did not prove him guilty?
A. I think so.
Juror No. 431 - Voir Dire
Q. Okay. Now, you haven't watched a lot of media over the
last two-and-a-half years, but can you just summarize what you
think it is that the Government says Mr. Nichols did in
connection with this bombing?
A. In -- I don't really know what they are saying his part is.
I don't know if they are saying he's John Doe 2. I don't -- I
haven't followed it that close.
Q. Okay. Do you have any recollection of where the media says
that Mr. Nichols was on the day of the bombing?
A. I seem to think they did at one time -- they said he was in
Michigan at the time.
Q. Okay. Now, are you referring to -- did you see any
television coverage up there in the Thumb area of a bunch of
law enforcement officers dressed in black surrounding a farm
and executing a search warrant at a farm up in Michigan?
A. I think I did see an aerial picture of the farm or
something.
Q. Okay. What do you recall about that?
A. It looked like a Michigan farm.
Q. Right. Okay. Had -- had you been in that area at all in
your travels? Did you play sports there in high school?
A. No.
Q. And go to other towns?
A. No. I'm not an athlete.
Q. Okay. Had you ever been through Decker?
Juror No. 431 - Voir Dire
A. Well, once since the bombing, my sister was driving us all
around and we went -- stopped at Imlay City for some gas. And
she took a wrong turn, and we did end up in the city limits and
we realized we took a wrong turn. But we didn't seek out the
farm or anything. We just wanted to get home.
Q. So you know where it is?
A. Yeah. It's north.
Q. What do you recall in your mind then about that search
warrant in connection with Mr. Nichols here?
A. I don't know nothing about the search warrant.
Q. Okay. You just saw an image on television?
A. Saw an aerial of a Michigan farm.
Q. Okay. Have you seen Mr. Nichols' brother, James Nichols,
on television over the last two years?
A. Not and known it.
Q. Okay. Okay. Do you recall how many people were killed in
the bombing?
A. 164?
Q. Okay. Do you recall how many children were killed?
A. No.
Q. All right. And as I understand, you understand why there
were children killed, because of the day-care center. Is that
your knowledge?
A. Yes.
Q. Okay. Do you know how the bomb was delivered to the
Juror No. 431 - Voir Dire
building?
A. It was in the back of a truck parked on the street.
Q. Okay. Do you recall how Mr. McVeigh was arrested by law
enforcement?
A. I believe leaving town. Pulled over for some traffic
violation or something.
Q. Do you recall whether Mr. Nichols was present in Oklahoma
at that time?
A. I don't believe he was.
Q. Okay. Do you recall from the media that you did see how
Mr. Nichols initiated contact with law enforcement authorities?
A. No, I don't.
Q. Okay. You know, in the event that there is a punishment
hearing -- and we only get there, as the Judge said, in -- if
the Government can prove beyond a reasonable doubt that
Mr. Nichols is guilty of killing all those people,
premeditation and deliberation of killing those people. Do you
understand that's the only time we get to a punishment hearing?
A. Yes.
Q. Okay. Now, on your questionnaire, when you talked about
capital punishment on page 28 -- do you have 28 handy?
A. Yes.
Q. Okay. Down at C and D, the questionnaire asks you what --
"What kind of cases is it appropriate, if ever, to impose the
punishment of life in prison without the possibility of ever
Juror No. 431 - Voir Dire
being released?" And you put down "repeat offenders." Is that
correct?
A. Yes.
Q. Okay. And then as to D, "In what kind of cases is it
appropriate, if ever, to impose the punishment of death?" And
you put in "premeditated murder"?
A. Yes.
Q. Okay. And then you told the Court that you believe the
death penalty should be for -- was it "severe crimes" --
A. Yes.
Q. I think was the word you used. Can you give me an idea of
what type of crimes you mean by severe crimes?
A. Brutal murder, brutal rape. Repeat offense. Just total --
Q. Okay.
A. Continuous menace to society.
Q. Okay. Now, the repeat offenders, you feel that life
imprisonment would be appropriate; is that correct?
A. Depending upon how brutal it was.
Q. Okay. Okay. Now, as to the brutal crimes, the brutal
murder or brutal rape, do you feel that life imprisonment would
ever be appropriate for those kind of crimes that you're
listing as severe?
A. Oh, maybe first offense.
Q. Okay. Any other circumstance?
A. If it was my wife. No. There's no other circumstance.
Juror No. 431 - Voir Dire
Q. Okay. Okay. By premeditated murder on D there, what --
what do you understand -- what are you saying there about
premeditated murder?
A. That it was thought out. It wasn't a spontaneous thing.
Q. Okay. Okay. Planned out?
A. Planned out. Plotted.
Q. Now, you understand, then, in a punishment hearing in
federal capital cases, the jury will have already found the
defendant guilty of premeditated and deliberate murder of one
or more individuals. That's the only time you would get to a
punishment phase and decide life imprisonment or death penalty;
is that correct?
A. Correct.
Q. Okay. In those cases where the jury has found, say --
let's -- as the Judge said, we've got to talk about
hypothetical cases. Take a hypothetical case where somebody's
been found guilty of bombing an airplane and 100 people were
killed. The jury's found them guilty of deliberate and
premeditated murder. Are you with me on that?
A. Uh-huh.
Q. And you're on the jury assessing the punishment, and the
Judge has said you will hear aggravating circumstances and you
will hear mitigating circumstances. After hearing the
evidence, do you feel that it would be ever appropriate to
assess a life imprisonment for a case where a jury has found a
Juror No. 431 - Voir Dire
defendant guilty of deliberate, premeditated murder of 100
people?
MR. MACKEY: Objection.
THE COURT: Overruled. You can answer.
JUROR: I don't know. I'd have to hear all the
circumstances. But doubtful.
BY MR. WOODS:
Q. Okay. And why do you say doubtful?
A. Yeah. Just once again, is the guy a high school bully or
Boy Scout, or were people terrorized before the bomb went off?
You need to hear all that.
Q. The circumstances of the crime?
A. Yes.
Q. And then are you saying because of the number of the people
that you'd be leaning one way or the other, or are you
saying -- What are you saying?
MR. MACKEY: Objection, Judge.
THE COURT: Well, the question "what are you saying"
is something that you can answer.
MR. WOODS: Thank you, your Honor.
JUROR: The number of people would have me lean to --
toward the death penalty --
BY MR. WOODS:
Q. All right.
A. -- over life imprisonment. A severe punishment.
Juror No. 431 - Voir Dire
Q. Lean toward the death penalty over life imprisonment, did
you say?
A. Yeah.
Q. Okay. What would -- what factor would help in causing you
to lean toward the life imprisonment?
MR. MACKEY: Objection, Judge.
THE COURT: Overruled. You may not have one in mind.
JUROR: I don't have one.
THE COURT: I mean, you don't have to have one in
mind.
JUROR: I don't have one in mind.
THE COURT: The question is whether you're open to
whatever is presented to you and consider life as well as death
in a case like that.
JUROR: I consider myself open-minded, yes; but I
don't have any circumstance in mind that would --
BY MR. WOODS:
Q. Okay. Could -- then the question is could you consider
assessing a life imprisonment sentence for somebody that killed
100 people?
MR. MACKEY: Same objection.
THE COURT: You may answer that.
JUROR: Yes, I would.
MR. WOODS: Okay. I appreciate your time. Thank you.
THE COURT: So do we all. And you've been at it here
a while, and we understand that. We can't tell you right now
whether you're going to serve on this jury; so what you have to
do is -- and you're excused for the day now. But we'll be back
to you shortly with respect to whether you're going to be
called in again. But you have to go from here now on the
understanding that you will be and that you'll have the
responsibility in the case. And by that I mean that you have
to be careful now and not talk about it with anybody and not
come across anything in any publication or communication that
could change any of your answers here, you know, and influence
you in any way in the case, because we've gone to great length
about what a jury has -- juror has to do. And you understand
that.
JUROR: Yes.
THE COURT: Okay. You're excused for now.
We'll take a recess. 20 minutes.
(Recess at 10:23 a.m.)
(Reconvened at 10:43 a.m.)
THE COURT: Be seated, please.
Counsel approach.
(At the bench:)
(Bench Conference 52B2 is not herein transcribed by court
order. It is transcribed as a separate sealed transcript.)
=0D
=0D
(In open court:)
THE COURT: 50.
Good morning. Would you please raise your right hand
and take the oath from the clerk.
(Juror No. 50 affirmed.)
THE COURTROOM DEPUTY: Thank you.
THE COURT: Please be seated there in the chair by the
microphone. And don't worry about the microphone. That's just
there to help us hear you. It's not being broadcast anywhere.
VOIR DIRE EXAMINATION
BY THE COURT:
Q. And you know that the case for which you've been summoned
as a possible juror is the case of United States against Terry
Lynn Nichols.
A. Yes.
Q. And that you got a summons and a short questionnaire, and
you answered that. And then you were notified to go out to the
Jefferson County Fairgrounds' -- excuse me -- auditorium
building last month on the 17th of September, and you did. And
I appeared there with the lawyers and the defendant.
And I want to introduce again to you the people that I
introduced at that time plus a couple of others. You recall
being introduced to Mr. Lawrence Mackey and Ms. Beth Wilkinson,
lawyers for the Government.
They're joined now by Mr. Patrick Ryan and Mr. James
Juror No. 50 - Voir Dire
Orenstein, additional lawyers.
You met Mr. Michael Tigar, Mr. Ronald Woods, attorneys
for Terry Nichols. And Mr. Nichols, of course, was present as
well.
And then I explained about the background of the case
and then also some things about jury service and sort of the
fundamentals of what's involved in criminal trials and then
asked you to complete a very long questionnaire, which you did,
and for which we appreciate your cooperation.
And we have taken copies of -- made copies of what you
wrote, distributed them to the people who are here
participating for the limited purpose of our use in this
process. We're not going to make it public or anything,
because there are privacy concerns that you may have. And we
recognize that, and it is for that reason that we don't use
your name here and that also, you know, we arranged for you to
go and come to the courthouse without press photographers or
anything like that.
Now, of course, we are in open court so that what is
said here, you understand, is public.
And I wanted to turn right to a matter that we want to
find out about, and that's in connection with your husband's
health, because as I understand it, you were going to be in
yesterday --
A. Yes.
Juror No. 50 - Voir Dire
Q. -- and originally scheduled to be in yesterday, but there
was some care required for your husband, some type of surgery.
We're not asking the details about that.
A. Okay.
Q. But is that a concern for your service on the jury?
A. Not at the present.
Q. Okay. Well, I wanted to get right to it to see, you know,
just exactly what the situation was in terms of whether to come
in here and serve on the jury would jeopardize his care.
A. No, it would not.
Q. Okay. I understand that he is, from what you've said in
the questionnaire, not working. He has a disability.
A. Correct.
Q. And that's been true for how long?
A. Well, he was just -- he has just reached his MMI, and he
will go on disability.
Q. Was it because of an accident?
A. No -- well, on-the-job injury, yes. He had total knee
replacement three times. It didn't take.
Q. All right. So he's receiving some compensation for that
from the employment?
A. We're fighting for it, yes.
Q. Well, you're supposed to receive it or -- okay. Is it a
disputed matter with the former employer?
A. Yes, it is.
Juror No. 50 - Voir Dire
Q. And is that a workers comp. matter?
A. It's workers comp., yes.
Q. Okay. Well, I want to back up -- and I wanted to go right
to that to see how much of a problem. That's why I asked about
it immediately.
A. Yesterday's was a different matter, though. He had a
cancer surgery yesterday, but everything is okay.
Q. All right. Well, we're glad to hear that.
And you know, we always have concern for people's
lives here, too. It isn't just a matter of hauling people in
here. We, of course, are concerned about all of the things
that may influence or affect or -- a juror and also that
person's ability to focus on the case.
And turning to the case, I just want to review some of
the things that I said to you and the others before when I
asked you to fill out the questionnaire. And it isn't because
I think you don't remember; but I think it is important that we
sort of establish a foundation, because what we're going to do
here is I'm going to ask you a few things about responses that
you made here.
A. Okay.
Q. Not going to go over everything. Don't worry about that.
Also, I want to ask you a few additional things and
cover them with you; and then a lawyer on each side will have a
chance to ask you some more questions. So bear with us yet a
Juror No. 50 - Voir Dire
while if you will.
A. Okay.
Q. And then, as I say, to sort of set the foundation for this,
you understand that this case arises as a result of some
charges filed in Oklahoma City, Oklahoma, after an event that
occurred there on April 19 of 1995, when a federal office
building was destroyed by an explosion. There were deaths and
injuries of people who were in the building; and then the
government, the federal government, through lawyers from the
Department of Justice, filed charges in the United States
District Court for the Western District of Oklahoma, which is
in Oklahoma City, and filed an indictment there. Now, you know
a little about an indictment because you were on a grand jury.
A. Correct.
Q. And you know that an indictment is simply allegations. And
while a grand jury may have approved an indictment, it is not
any evidence and doesn't constitute any kind of finding but is
just a statement of charges.
A. Correct.
Q. You understand that?
A. Yes.
Q. So the -- the way in which we treat an indictment in court
is to simply say, well, that's nothing more than the
accusations and can't be considered for any purpose and --
because, of course, a grand jury proceeding is not a trial at
Juror No. 50 - Voir Dire
all, as you well know, I take it.
Then the accusations, the allegations of this
indictment are -- and I summarized them for you before -- that
the Government accuses a man named Timothy James McVeigh,
together with Terry Lynn Nichols -- and then the indictment
says "and other persons not named" -- with a conspiracy,
forming an agreement or plan to bomb and destroy the building
and to kill and injure people in it. And then the indictment,
which consists of some 11 counts, includes in addition to
conspiracy that the defendants carried out that plan, did
indeed, according to the accusation, bomb the building.
And then included in the allegations are eight counts
of first-degree murder for the killing of eight law enforcement
agents, people working for differing agencies of federal
government who were in the building and died in the explosion.
And to these charges, each defendant entered a plea of
not guilty, thereby creating the issues for trial.
The case was moved from Oklahoma City here to Denver
because of a concern to ask people in Oklahoma to hear the
evidence in this case, since that's where this happened. And
when it came to Colorado, I ordered separate trials be heard so
that the evidence as it may relate to Timothy McVeigh be
considered by a jury in a separate trial and then the evidence
as it may relate to Mr. Nichols be heard by a different jury
and at a different time.
Juror No. 50 - Voir Dire
There has been a trial of the evidence concerning
Mr. McVeigh. A jury heard that case, returned a verdict of
guilty as to him and also then was required -- that same
jury -- to hear more concerning the issue of what the sentence
should be. And after a second trial on that point, the jury
came back with a recommendation for the death penalty for
Mr. McVeigh. That's over and done.
Now we're starting all over again, very, you know --
with a clean slate and picking a jury to consider the evidence
relating to Mr. Nichols.
Nothing concerning the McVeigh trial can now be
considered in connection with this case, and certainly the
outcomes of that case can in no way be considered by the jury
deciding this case. To do so would clearly violate the order
for separate trials and destroy the whole reason for it and be
fundamentally unfair to Mr. Nichols. Do you understand that?
A. I do.
Q. And you also understand that the role of a jury, a trial
jury now, is to hear the evidence in the case and decide
whether he (sic) proves the crimes charged. And, of course,
the evidence in the case doesn't include the indictment, you
understand.
A. Yes.
Q. Now, let's just turn to your experience. As I understand
it, you were on a grand jury here in Denver.
Juror No. 50 - Voir Dire
A. Right.
Q. And that was how long ago?
A. I believe 1976.
Q. And you served for 18 months, did you?
A. 18 months, yes.
Q. Was it here in the Federal Court?
A. No. It was the Denver grand jury with the district
attorney, Mr. Dale Tooley.
Q. All right. And was the grand jury called for a particular
crime or a particular investigation or something, as you
remember it?
A. No. They just -- it was in January, I received the summons
and -- or no, December I received a summons, I believe it was;
and then in January, we were seated.
And then we were so far into an investigation by the
year's end that -- we were six months into an investigation the
last part of year that they didn't want to give it to the '77
jurors, so they extended our stay for another six months.
Q. I see. Your original term was to be for a year?
A. One year, yes.
Q. And they extended it for this particular --
A. Until we finished the investigation we were involved in.
Q. Okay.
A. And it took another six months.
Q. Did that -- I'm not going to ask you about the particular
Juror No. 50 - Voir Dire
investigation; but did it result in an indictment, or a
report --
A. A report to Congress is what it was.
Q. Okay. And sometimes grand jurors are asked to just do a
report on an investigation without charging anybody with a
crime.
A. That's what was going on, yes.
Q. Did you have other matters presented to you in the grand
jury --
A. Yes.
Q. -- that did result in indictments or charges?
A. There were some that we did sign.
Q. Do you remember any of them in particular, what kinds of
crimes?
A. No, I don't --
Q. Like drug matters or --
A. No, I can't remember.
Q. Okay. Well, that's, you know -- that's been a while.
A. Yes.
Q. And of course, you know that grand juries -- there aren't
any rules of evidence, and grand juries often hear some
investigator just tell the grand jury what he or she has found
out, and there is no defense lawyer, there is no judge. It's a
very one-sided affair. You agree?
A. Yes. We did have a judge present, though.
Juror No. 50 - Voir Dire
Q. During the deliberations, or during the --
A. Whenever the investigators brought any of the evidence in,
there was a judge present, if I recall correctly. I know we --
Q. Well, there probably was a judge when you started out and
gave you some instructions and all that in the process of
selecting the grand jury.
A. Correct.
Q. Judges do that. But then usually -- and I don't know how
it was in your case -- and it's a different system, the state
court -- but then usually the judge is not involved every time
the grand jury gets together.
A. No, there were evenings he wasn't there.
Q. Sure. And during those evenings, things would be brought
to you, people who were investigators; and a lawyer or
lawyers --
A. Yes.
Q. -- for the state -- or the district attorney's office,
rather, would be there and -- but there wasn't anybody there to
cross-examine those witnesses or to challenge what they were
telling you --
A. That's correct.
Q. -- right? And so you were being asked to decide, well, do
you think there is enough here that we ought to go ahead and
file a charge in court.
A. Probable cause, yes.
Juror No. 50 - Voir Dire
Q. Yeah, probable cause. And then charges get filed as a
result of that.
A. Right.
Q. Now, of course, here, you're being considered for a trial
jury. And a trial jury is much different, beginning with the
fact that probable cause is a standard used by a grand jury to
approve an indictment. That gets wiped away. There is no
probable cause presumption or any kind of presumption once an
indictment is filed and a jury is empaneled to hear the case.
You understand that?
A. Yes.
Q. And that's because under the Constitution of the United
States -- and this is so fundamental that it applies in all
trials no matter what the charges are or who the defendants are
or what court it's in, whether it's a state court or Federal
Court. If it's under the United States Constitution, then the
persons accused are presumed to be innocent of whatever crimes
they have been charged with. You understand that principle?
A. Yes, I do.
Q. And that presumption of innocence means that no person who
has been accused of a crime can be found guilty of it unless a
trial jury, considering only the evidence that has been
received at trial, is convinced and finds that the charges have
been proved by the evidence in the case beyond a reasonable
doubt. And, of course, the trial process does involve counsel
Juror No. 50 - Voir Dire
for the defendant, involves a judge ruling on whether
particular things can be heard and considered as evidence,
cross-examination of witnesses and all of this due process.
You understand those points?
A. Yes, I do.
Q. And no person who is accused of any crime in the United
States is required to prove himself innocent or not guilty. In
fact, persons who are accused have no burden or duty of calling
any witnesses or introducing any evidence. It is the
prosecution, the Government's lawyers, who file the charges,
although they may have the grand jury's assistance in doing
that; but once the charge is filed, then, you know, it's a
clean slate and they have to come in and bring in the witnesses
and the exhibits and try to prove it.
And a defendant, as I say, doesn't have to disprove
anything, and no defendant has to call any witnesses. And
certainly no defendant has any burden or duty of answering
questions or explaining anything to the jury. A person who is
accused can simply remain silent and challenge the evidence
brought in against him or her and do so by objections to
admissibility of evidence, by the cross-examination of
witnesses, and by persuasive argument. You understand?
A. I do.
Q. And in cases in which a defendant does not testify, then
the jury is instructed they cannot give any consideration to
Juror No. 50 - Voir Dire
that at all. They can't assume that he's hiding something,
afraid to testify. There are reasons why innocent people don't
testify at trials, and what we tell juries in those situations
is you can't even consider that in any way or talk about it.
You understand these points?
A. I do understand.
Q. So at the end of the trial, the court gives detailed
instructions about these are the elements of the crimes that
have been charged here, these are the things that must be
proved, and then says to the jury: You tell us after you
discuss it whether the crimes charged have been proved to your
satisfaction beyond a reasonable doubt. And another way to
look at that is if, after the jury considers it all, there is a
reasonable doubt as to whether the defendant has been proved
guilty by the evidence, the jury's plain duty is to return a
verdict of not guilty, giving the defendant the benefit of that
doubt. Understand?
A. I do.
Q. Do you have any disagreement with these principles?
A. No, I don't.
Q. Prepared to follow them if you served on this case?
A. Yes.
Q. Therefore, you understand that Mr. Nichols sits here with
us this morning presumed to be innocent of these charges that
have been made against him.
Juror No. 50 - Voir Dire
A. Yes.
Q. Now, I want to discuss with you just a little bit some of
the things that you mentioned here in your questionnaire. And
one of the things is -- I understand you were born in
California.
A. Correct.
Q. But then came to Colorado -- your family came to Colorado
to live?
A. Yes.
Q. And you really grew up here in Colorado.
A. Yes.
Q. You mentioned here -- and what I'm going to do is ask you
to turn to some pages on your questionnaire. You have it
there, I believe. And I'll just point to -- point you to some
of these pages and some of the points and just ask you a bit
about them.
Page 3 at Question 11. Can you tell us what happened
there?
A. Oh. My sister died of pneumonia when she was 18 months
old, but she was before I.
Q. Before you were born?
A. Yeah, before I was born.
Q. So you were -- that's something you were told about.
A. Yes, uh-huh.
Q. Okay. And then I noted where we asked you if you've had
Juror No. 50 - Voir Dire
any conditions that might make it difficult for you to serve,
you mentioned that you do have a back situation but you don't
think it's going to --
A. Doesn't hurt to sit.
Q. Okay. Well, we won't ask you to lift anything.
A. Okay.
Q. Do those things -- so sitting is what we were talking
about. Then you told us where you work and that you've been
working there 19 years now.
A. Yes.
Q. And it's page 9. And we're not going to discuss where you
work, but this is a company that has a union and you've been --
and your husband, both -- active in the union.
A. Correct.
Q. And there was a stoppage of work sometime back; and you
were active in that, too, as line captains.
A. Yes.
Q. For the picket lines.
A. Yes.
Q. And that, of course, ultimately got resolved.
A. Yes.
Q. And there is a new contract?
A. A new contract.
Q. Okay. Well, I'm not going to ask you whether it got
resolved to your personal satisfaction, but the process worked?
Juror No. 50 - Voir Dire
A. It did, yes.
Q. And -- and under your contract that you work under now, is
there a provision in there about jury service? Do you know?
A. Yes, there is.
Q. So that you would be paid for your -- the difference in
your wage and what you get paid on the jury?
A. Yes.
Q. All right. Now, we asked you on page 11 to identify some
organizations and -- that members of your family have been
employed in, and you start out there with the law enforcement
agencies. What is the reason for your yes answer there?
A. I don't know if I checked that and then rechecked it.
Q. Well, you were a little uncertain. Looks like you checked
no and scratched it out and then yes.
A. Well, my nephew is on Denver S.W.A.T. team with a canine.
Probably marked it before I realized it.
Q. So is he with the Denver Police Department?
A. Yes.
Q. And how long has he been a police officer?
A. Oh, I would guess maybe now about 12 years.
Q. Do you see him often?
A. Rarely.
Q. Rarely?
A. Rarely.
Q. Have you talked with him about his work at times?
Juror No. 50 - Voir Dire
A. No.
Q. Are you in any way influenced by his work in terms of your
being able to be open and fair at this trial?
A. No, I'm not.
Q. Then you marked -- excuse me.
A. Then I have two other brothers that were firefighters.
Q. In Denver?
A. No.
Q. Where?
A. One is retired, and he's living in Oregon now; but he was a
firefighter over in Napa, California. My other brother is
retired Aurora firefighter, engineer.
Q. In Aurora here?
A. Correct.
Q. All right. Then you marked probation department.
A. My husband's daughter -- she works for the -- the state.
Q. In Denver?
A. Yes -- no. She's out in -- off Kipling, I believe out
there.
Q. Jefferson County?
A. Jefferson County.
Q. All right. And does she work as a probation officer; do
you know?
A. I know she handles prisoners on probation. She takes their
cases.
Juror No. 50 - Voir Dire
Q. Supervises them?
A. Oversees, yes.
Q. Have you talked to her about her work from time to time?
A. No.
Q. And then I think you've got -- security guard is the other
one marked. Yes?
A. Yes.
Q. What's that about?
A. My father was a security guard many, many years ago in
San Francisco.
Q. While you were growing up in the family?
A. No, that was before I came along.
Q. Another one of these things you heard about?
A. Yeah, heard about.
Q. Now, I want to turn to page 20. At 93 there, you told us
just what you've told us now, the same things; right? Those
are the same people?
A. Yes.
Q. And then you mention at 91 that you have a close friend of
yours -- in fact, you refer to this person as the "best
friend," with a daughter working as a lawyer in a public
defender's office.
A. Yes.
Q. And where is that?
A. Here in Denver.
Juror No. 50 - Voir Dire
Q. In the state?
A. Yes.
Q. And do you -- do you see her? I mean the lawyer, not the
friend.
A. No. I don't see her daughter that often.
Q. And does your friend talk with you about the cases --
A. No.
Q. -- that her daughter has been on?
A. No.
Q. And is that person the same person you name on -- the one
who is the lawyer -- on page 21 at 96?
A. Yes.
Q. Okay. And then at 98, you have a personal attorney; and
what, this -- he or she used to be a defender? Is that what
you're saying at 98?
A. Yes. She was director of EEOC, and she's now practicing
law.
Q. Well, it says Denver public defender.
A. Well, at one time, I believe