Bomb Trial Hearing Looks at Death Penalty

In a wood-paneled Denver courtroom, federal prosecutors will argue that the Oklahoma City bombing is a crime that should receive the maximum sanction under the law: the death penalty.

For defendants Timothy McVeigh and Terry Nichols, the May 1 hearing is more than a procedural matter. If the judge rules that this is a federal death penalty case, the chances of a conviction could rise.

Statistics indicate, and most criminal attorney's agree, that "death-qualified" juries are less likely to listen to defense arguments.

"The evidence shows that death-qualified jurors are more prone to convict," says Stephen Jones, Mr. McVeigh's attorney. "Whether that's true in Colorado or not, I don't know.

In a death penalty case, the prosecutor has an opportunity to thoroughly question each juror in the selection process to make sure they are willing to convict with the death penalty if they feel the facts in the case warrant it. Prosecutors will attempt to weed out anyone opposed to capital punishment on philosophical, or religious grounds.

"The issue is: is this a jury of your peers or a pro death-penalty jury?" says Richard Dieter, Death Penalty information Center in Washington, D.C. He notes that such juries tend to have a "law and order" bias.

If the defense should convince the judge that the Oklahoma City bombing is is not a death penalty case, it would give the defense a big edge, says Mimi Wesson, interim dean at the University of Colorado Law School.

"You can see why the defense counsel would be interested in getting a ruling on this in advance," she explains.

"If, against all odds, they were to get a ruling in advance that the death penalty cannot be pursued," Ms. Wesson says, "then they would be likely to get a jury panel that would be more favorable in the abstract to the defense than one that has been death qualified."

The Federal Death Penalty Act of 1994 states that the US attorney general makes the decision on the death penalty, after internal reviews and procedures take place.

This is where McVeigh's attorney takes exception, explaining that when Janet Reno said "we will seek" the death penalty one day after the bombing, she broke her own guidelines.

"That is the principal argument that we will open with," Mr. Jones says. "Politically, its good politics and that's why they said it. They were looking for votes."

But he says legally, the government violated its own rules. "When government violates its own rules none of us is safe. So our position is that the attorney general must be disqualified, and the Department of Justice must conduct an independent review to determine whether the death penalty should be sought."

Due process, says Jones, was denied when Ms. Reno made her death penalty declaration before the suspects were even identified.

Federal prosecutors, on the other hand, have pointed to more than a dozen factors that they believe justify the death penalty. They contend that the defendants committed multiple murders, that the crime was carried out in a heinous manner, and that the victims were vulnerable. All these factors are basis or the death penalty, under federal law.

Those prosecutors assigned to the case in Denver are not granting interviews, saying, "We won't try this one in the public opinion courts."

Jones, however, continues to publicly insist that this isn't a capitol punishment case.

"This is a political crime,and regardless of who did it, it is important to understand why it happened," he says, declining to offer specifics before the trial. "But I don't think that death is appropriate, certainly not for these defendants should they be convicted.... But I think its academic because I don't believe under the evidence the jury will convict my client."

Colorado's track record on death penalty cases does offer some encouragement to the defense.

Even in death penalty cases, Colorado juries rarely hand out the death sentence. They've sent only 17 men to death row since the state's death penalty was reinstated 20 years ago, and no one has been executed here since 1967.

The defense hopes US District Court Judge Richard Matsch will rule within 30 days. But Wesson, a former federal prosecutor, doubts this debate will be settled quickly. "It is very unlikely that this judge or any judge would rule out the death penalty in advance for these crimes."