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Supreme Court Asked to Review McVeigh Convictions
Chris Casteel, News Oklahoma, Thu, January 7, 1999 12:00 AM
WASHINGTON – Saying pretrial publicity and jury misconduct kept him from getting a fair trial, Timothy McVeigh asked the U.S. Supreme Court on Wednesday to review his convictions in the Oklahoma City bombing case.
McVeigh, who faces execution, is also asking the court to review whether he deserves a resentencing. He argues his attorneys should have been allowed to ask jurors during the selection process whether they would automatically choose death for those most responsible for the bombing.
Federal prosecutors have until Feb. 5 to respond to McVeigh’s arguments, which were rejected last year by the 10th U.S. Circuit Court of Appeals.
McVeigh, 30, filed his Supreme Court appeal as a pauper, an option for indigent prisoners who can’t pay the filing fee. The man convicted of the worst act of terrorism on U.S. soil is in federal prison in Florence, Colo.
The U.S. Supreme Court accepts only a small percentage of the cases it is asked to review. It will likely be several weeks before justices vote privately on whether to accept McVeigh’s appeal.
Attorney Rob Nigh Jr. urged the justices to take the case to send a message to the country that all defendants will get a fair trial no matter how heinous the crime in which they are accused.
Nigh, of Tulsa, made the plea while criticizing the 10th U.S. Circuit Court of Appeals for upholding McVeigh’s convictions even though U.S. District Judge Richard Matsch didn’t investigate alleged jury misconduct.
“The Oklahoma City bombing case and the trial of Timothy McVeigh were of critical importance to the nation,” Nigh wrote. “The country looked to this case as the means by which faith in the criminal justice system might be restored after media fiascoes in other high profile criminal cases had engendered profound disillusionment in the processes of criminal law.
“The Tenth Circuit’s decision to uphold the district court’s refusal to recognize the prejudice from premature decision when ‘ordinarily’ an investigation should be conducted sends an unmistakable message to the citizens and courts of the United States. The message is that the rules of law may be applied on a sliding scale when the crime is unspeakable and public outrage is great.
“This court should grant… (review) so that a different message is sent.”
McVeigh was convicted in 1997 of eight counts of first-degree murder of federal law enforcement officers, one count of conspiracy to use a weapon of mass destruction, one count of use of a weapon of mass destruction and one count of destruction by explosives.
He was tried in Denver after Matsch moved the case from Oklahoma.
But McVeigh argues that, even with the change of venue, pretrial publicity was inescapable and harmful.
The first of his three constitutional claims focuses on reports in The Dallas Morning News and Playboy magazine that McVeigh confessed to his attorneys that he bombed the Alfred P. Murrah Federal Building in April 1995.
The Morning News story appeared a month before McVeigh’s trial began, and after potential jurors were informed they were being considered for service on the trial, McVeigh’s petition says.
Four of the jurors seated in the case said they had heard the reports of the confession, though all said they could keep an open mind. The 10th Circuit Court said the reports were hearsay and that there was no videotape or a copy of a signed confession. The circuit court also said that the change of venue substantially weakened the claim of pretrial publicity.
McVeigh’s petition argues that Matsch didn’t fulfill his duty to ensure a fair trial and instead pushed to stay on schedule.
In his second claim, McVeigh says Matsch should have investigated whether a juror told an alternate juror that “we all know what the verdict should be.”
The remark was supposedly made at a recess during the testimony of prosecution witnesses.
The day Matsch heard about the comment, he admonished jurors to remain open-minded and refrain from discussing the case. He also told the attorneys about it privately. McVeigh’s attorneys wanted the juror removed, while prosecutors said they were satisfied with the judge’s admonition. Matsch did not hold a hearing or question the juror, and he kept him on the panel.
The 10th Circuit said a hearing would have been preferable but that Matsch didn’t abuse his discretion in deciding not to do so.
The juror, Fred Clarke, has insisted repeatedly since the trial that he never made such a statement and must have been misunderstood.
Nigh, citing a previous case that was reversed because of juror discussions of guilt, wrote, “Once a juror has expressed his or her view in the presence of other jurors he is likely to continue to adhere to that opinion and to pay greater attention to evidence that supports it.”
In the claim regarding his sentencing, McVeigh says his attorneys should have been able to ask potential jurors whether, on the basis of what they knew about the bombing, they had already determined what the sentence should be if he were found guilty.
In the subsequent bombing trial of Terry Nichols, jurors were asked that question, McVeigh says in his petition. The questioning revealed that some believed any of the principals found guilty of the bombing should be put to death.
Nichols was convicted of conspiracy and manslaughter but was not sentenced to death.
The 10th Circuit Court said that there were enough safeguards in McVeigh’s trial “for us to conclude that each prospective juror was impartial as to punishment, and thus that McVeigh’s trial was not fundamentally unfair.”
But McVeigh argues that none of the so-called safeguards would necessarily prevent the seating of a juror who had already made up his mind about punishment if the defendant were convicted.
“If the court tolerates the Tenth Circuit’s attempt to avoid the simple dictate of the Constitution that jurors be asked directly whether, on the basis of what they already know about the case, they have predetermined the punishment necessary if the defendant is found guilty, we risk having an ‘Oklahoma City bombing case’ exception to the rule of law,” Nigh wrote in the petition. “Surely, the Court cannot countenance such a result.”
Prosecutors have argued the judge allowed proper questions at McVeigh’s trial and unwisely changed the process for Nichols trial – “a major reason why… (it) took two weeks longer to complete.”
Supreme Court justices would not have to hear all of the claims made in McVeigh’s petition, but could choose to focus on any that they believed had merit. The justices will sometimes hear a case if it represents a conflict among circuit courts. Nigh’s argument in the juror misconduct claim is that other circuits have more stringent standards.
Judges “are in desperate need of guidance from this court,” Nigh wrote.
Staff writer Nolan Clay contributed to this report.
Archive ID: 748207