Nichols facing death penalty at state murder trial

Nichols facing death penalty at state murder trial TIM TALLEY Associated Press Writer McALESTER, Okla. (AP) _ Bombing conspirator Terry Nichols escaped the death

Saturday, May 29th 2004, 3:12 pm

By: News On 6

Nichols facing death penalty at state murder trial

TIM TALLEY

Associated Press Writer

McALESTER, Okla. (AP) _ Bombing conspirator Terry Nichols escaped the death penalty on federal bombing charges, but death penalty experts believe he may not be so lucky again after being found guilty of murder in Oklahoma.

Nichols' 12-member jury took just five hours to convict him of 161 counts of first-degree murder, bringing a swift end to two months of testimony that included overpowering circumstantial evidence that linked Nichols to the Oklahoma City bombing.

Wednesday's verdict set the stage for the trial's penalty phase, where prosecutors will ask the same jury to sentence him to death for the April 19, 1995 bombing of the Oklahoma City federal building.

Graphic evidence about the horrific deaths of the victims and emotional testimony about the physical and emotional pain of survivors and the families of those who died may overwhelm Nichols' 12-member jury, legal experts said.

``It turns the trial into a wake really. And there's nothing to contest about it,'' said Steve Bright, an attorney with of the nonprofit Southern Center for Human Rights in Atlanta.

``For the prosecution it's like shooting ducks in a barrel. They'll call him a mass murderer and a terrorist,'' said Bright, co-chair of the National Association of Criminal Defense Lawyers' death penalty committee.

``All of the jurors know that the only purpose of this trial is to give him the death penalty,'' he said. ``Is this person so beyond redemption that he must be eliminated from the human community? It's a huge question.''

The challenge for defense attorneys is to humanize Nichols in the hope jurors will spare his life, said attorney Cynthia Orr of San Antonio, who represents death row inmates. Nichols could be sentenced to death by injection or life in prison in the penalty phase, which begins Tuesday.

``You're trying to reach out to them as moral beings to whom you trust your client's life to,'' said Orr, co-chair of the NACDL's death penalty committee.

``It's very, very hard on jurors,'' she said. ``It's very hard for us as human beings to accept that someone could have intended to take that kind of human life, especially with the children.''

The bombing of the Alfred P. Murrah Federal Building killed 168 people, including 19 children.

Nichols, 49, was convicted in federal court in 1997 of conspiracy and involuntary manslaughter in the deaths of eight federal law enforcement officers but he was acquitted of more serious murder charges. He was sentenced to life in prison.

In Oklahoma, Nichols was convicted in the deaths of the 160 other victims and one victim's fetus. Nichols' jury sentenced him to life in prison without parole for the fetus' death but must still determine a sentence on the other counts.

At Nichols' state trial, prosecutors questioned 151 witnesses in a compelling case that Nichols and former Army buddy Timothy McVeigh worked together to acquire the ingredients and build the fuel-and-fertilizer bomb that destroyed the federal building.

McVeigh was convicted on federal murder charges and executed in June 2001.

Testimony included eyewitness accounts of survivors and rescue workers as well as medical examiners who said many victims were mutilated beyond recognition _ missing heads, arms, legs, hands and feet.

Prosecutors will offer similar evidence during the penalty phase to prove that circumstances surrounding the crime, known legally as aggravators, warrant the death penalty.

Prosecutors, who must prove just one of eight legal aggravators in state law, allege that Nichols created a great risk of death to more than one person in the bombing.

Jurors will hear wrenching testimony from bombing survivors and victims' family members, people like Helena Garrett, whose 16-month-old son, Tevin, was killed in the federal building's day care center.

Garrett testified at the federal trials of both McVeigh and Nichols about watching as rescue workers brought out the bodies of children in sheets and laid them by her feet atop broken glass.

``I said, `You guys don't leave our babies on the glass. We don't want our babies on the glass,''' Garrett said tearfully. ``I didn't realize that those babies they was lying down was already dead.''

Family members will also testify for the defense, including Bud Welch, a death-penalty opponent who said he wanted revenge after his daughter, 23-year-old Julie Marie Welch, was killed in the blast.

``The first month or so I would have killed the bastards myself,'' Welch said. ``But at some point you have to move beyond that. When people are carrying vengeance around with them, they can't heal.''

Other defense witnesses will try to mitigate the prosecution's case with evidence about Nichols that will ``present a very human face to the jury,'' Orr said.

That testimony is likely to come from Nichols' friends and family members who will discuss his childhood and upbringing and the good things he has done in his life, said defense attorney William Gallagher of Cincinnati, a veteran of 13 death penalty cases.

``It becomes much more difficult to execute a human being than it is a monster,'' Gallagher said.

Nichols could also testify, but mitigation evidence is frequently more effective when it comes from someone other than the defendant, whose testimony could be viewed by jurors as self-serving, Gallagher said.

Nichols did not testify during the trial's first phase.