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Judge Orders Separate Trials For Oklahoma City Bombing Suspects

October 25, 1996

DENVER (AP) _ A judge Friday granted Oklahoma City bombing defendants Timothy McVeigh and Terry Nichols separate trials rather than let one man drag the other down.

The ruling was a victory for the defendants, who had argued that their constitutional right to a fair trial was in jeopardy because the jury would be unable to weigh the evidence against each man separately.

At issue were incriminating statements Nichols made about McVeigh to the FBI when he was arrested two days after the April 19, 1995, bombing at the federal building.

During his nine-hour interrogation, Nichols told the FBI that he and McVeigh were near the building three days before the bombing; that he loaned McVeigh his pickup truck the day before the attack; and that he cleaned out a storage locker at McVeigh’s request the day afterward.

U.S. District Judge Richard Matsch ruled that as a result of what Nichols told the FBI, McVeigh ``will be profoundly prejudiced″ by a joint trial.

``Each defendant is entitled to a jury’s separate and independent evaluation of the evidence received against him in any trial, regardless of the number of other persons alleged to have participated in the crimes charged,″ the judge said.

Matsch said McVeigh will be tried first, but he did not say why, and did not set a trial date.

``We are extremely pleased,″ said Robert Nigh Jr., McVeigh’s lawyer. ``We feel like the judge’s ruling on separate trials increases dramatically Tim McVeigh’s chances for receiving a fair trial.″

Nichols’ defense team also praised the decision, saying in a statement that a separate trial will prevent prosecutors from merely relying ``on guilt by association and spillover prejudice from the case against McVeigh.″

Prosecutor Larry Mackey said, ``I see no consequence to the potential outcome of the case as a result of today’s ruling.″

Prosecutors had contended that the jurors could sort out the cases. They also argued that one trial would be more economical and less traumatic for the witnesses, who include survivors of the bombing.

Jannie Coverdale, who lost two grandsons in the blast at the Alfred P. Murrah Federal Building, was upset by the ruling. ``We can’t afford two trials,″ she said. ``That’s going to put a hardship financially and emotionally on the family members and survivors.″

Marsha Kight, whose daughter, Frankie Merrill, died in the bombing and would have turned 25 Friday, said: ``Emotionally it’s going to take its toll on family members. It’s just drawing it out.″

Earlier in the case, the judge had ruled that Nichols’ statements could be used against Nichols but not McVeigh. But McVeigh’s lawyer argued at a three-day hearing earlier this month that merely telling the jurors to disregard Nichols’ statements wouldn’t work. And on Friday, the judge agreed.

``There can be no effective separation of Terry Nichols’ explanations for his conduct from what he reportedly said Timothy McVeigh told him,″ Matsch wrote.

The judge also agreed that McVeigh might be denied his constitutional right to cross-examine witnesses against him if there had been a joint trial. McVeigh would not have been able to question Nichols about his statements to the FBI because Nichols could not be required to take the stand at his own trial.

McVeigh and Nichols face murder and conspiracy charges in the bombing, which killed 168 people and injured more than 500. If convicted, they could get the death penalty. McVeigh was arrested 90 minutes after the bombing on unrelated charges, and Nichols surrendered two days later.

The judge could have ordered one trial and instructed the jurors to keep the evidence separate; ordered separate trials; or seated two juries _ one for each defendant _ in the same courtroom.

Ordering separate trials is not uncommon, but dual juries _ in which one jury leaves the room when evidence that applies to only one defendant is heard _ are rare, and Matsch called the idea unworkable in this case.

Denver defense attorney Michael Bender, former chairman of the American Bar Association’s criminal justice section, said the ruling tends to strengthen the defendants’ position.

``Each defendant will have an opportunity to win or lose based solely on the government’s case against that person,″ Bender said.

In addition to the constitutional issue, Bender said the fact that this is a death penalty case may have played a role in Matsch’s decision. ``I don’t know of any death penalty cases that have been tried in federal court with co-defendants,″ he said.

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