At one point during jury selection for the trial of Terry Nichols, the second accused Oklahoma City bomber, Judge Richard Matsch told the lawyers, “There is no precedent for the challenge we face here.”
    It’s unlikely that Michael Tigar, leader of the Nichols defense team, had to be reminded of that fact. He knows only too well the daunting task he and his colleagues face. It’s their job to find jurors who believe in the propriety of the death penalty, yet who—if they first convict Nichols of the most bloody mass murder in American history—would be willing, for some reason as yet unknown to them, to spare his life.
    Among defenders and prosecutors alike, Tigar has earned a reputation as one of the most skilled trial lawyers in the business. To watch him conduct jury selection in the Nichols case is to understand why.
    The chess game that is jury selection in a capital case begins with a ground rule that gives the prosecution a distinct advantage. That rule is called “death qualification.” It means that only people who are capable of imposing a death sentence can be considered for service on the jury; those who are opposed to the death penalty as a matter of principle are excluded.
    But there’s a second part to the rule: People who would automatically impose death for intentional murder—regardless of who the defendant is, or the circumstances of his life prior to the crime—are also excluded. In other words, to get on the Nichols jury, a person must be able to impose a death sentence, but must be equally open to consideration of a life sentence.
    It’s the latter provision that gives Tigar a ray of hope, however dim that ray may seem, given the circumstances of the crime.
    There is a large element of irony to the strategies prosecutors and defenders must employ to death-qualify a jury. When the prosecutors find jurors who demonstrate a strong commitment to the death penalty, they cannot assume those people will get on the jury. That’s because such jurors are subject to challenges by the defense on the ground that they are close-minded. So prosecutors often spend a lot of time in their interviews trying to elicit answers that show the jurors are also willing to consider a more lenient life sentence.
    Defense lawyers face a similar task when they find jurors who are soft on the death penalty. The attorneys must establish that those jurors could overcome their reluctance to impose death if the circumstances of the crime were sufficiently heinous. Even in the context of OK Bomb, a crime whose 168 victims included 19 small children, that’s not necessarily an easy job.
    During the past month, Michael Tigar has stunned courtroom observers time and again with his ability to knock out jurors who seemed safely qualified during their initial interviews, first with Judge Richard Matsch and then with prosecutors. Tigar has been equally adept at qualifying jurors whom the judge and prosecutors had apparently eliminated because they appeared to have already made up their minds as to the appropriate punishment.

            Tigar Turns a Juror Around
    It seemed clear from her answers to the judge’s questions that Juror #474, a thirty-something divorcee from Denver, was not going to make it into the jury pool.
    “I don’t believe in the death penalty,” she said. “I guess that’s a combination, for me, of my religious beliefs, my family values, and my life experiences—that some people might deserve to die for a crime they commit—but I don’t think that I, personally, should be the one to cause that to happen. I think that’s something that should be left up to God.”
    The judge then posed a hypothetical: If you were drafted into the Army, and the nation was at war, could you kill somebody in combat?
    “I couldn’t personally do that,” the juror replied. “... I don’t believe I could serve in a capacity where I would have to kill somebody.”
    Larry Mackey, the lead prosecutor, was so confident this juror would be excused for cause, on the ground that she was unable to consider a death sentence, that he opted to ask no questions.
    But Tigar saw an opportunity.
    “If there were a military draft,” said Tigar, “you think you’ll be willing to serve but you’d ask for, perhaps, some kind of conscientious objector status; is that right?”
    “Right,” said the juror.
    “Now, if there were an invasion of American soil by foreign troops,” continued Tigar, “would your view about your own willingness to carry arms be different?”
    “It might be different if I were in a defensive position,” the juror replied. “... I could probably hurt somebody if I needed to defend myself, or defend my child, and it was very immediate and I needed to do something like that. I don’t think I could take an offensive position, though.”
    This response gave Tigar confidence. He explained, as the judge had, that the jury, in the event of a conviction, would have three options: death, life without parole, or some lesser sentence to be determined by the court. “No juror is ever required to vote a death sentence,” he said reassuringly.
    Tigar then spoke for several minutes about the jury’s obligation in a penalty phase to weigh aggravating circumstances offered by the prosecution, and mitigating circumstances offered by the defense, before deciding punishment.
“Could you,” he concluded, “even understanding that you have these views, say, ‘Well, I took an oath, I’m a juror, I’ll listen to what the judge says and I’ll follow the law and make this decision.’ Is that something that you feel, at the end of the day, that you could do?”
    “Yes,”” said #474, “I could.”
    “Well, you know, that’s all we would ask of you,” said Tigar with a slight smile. “Thank you very much.”
Now Judge Matsch had a problem. Tigar had just brought the juror back—back from the extreme position of inability to impose death, to the more moderate ground of being able to give the ultimate penalty fair consideration. Was she or wasn’t she death-qualified?
    The judge wanted clarification. He explained again that the jury would have three sentencing options: death, life, or an undetermined prison term. “The question is,” he said, “can you consider—and you’ve been clear you can consider—but can you decide among these three?”
    “I can decide among those three,” the juror replied. “It would take something enormous for me to decide on the death penalty,” she added. “I don’t even know what that would be.”
    “Okay,” said Matsch. “But I think it’s fair for the Government, here, too, who didn’t ask any questions... But, you know, that’s fine, if your answer is that you can decide, because something is so enormous that, yes, you could decide on the three things, including death?”
    “Yes,” said the juror.
    Tigar, seated beside Terry Nichols at the defense table, was beaming.
    A few days later, when the lawyers made their weekly motions to eliminate jurors on the ground that they could not be fair to both sides, prosecutors argued that “one ambiguous answer at the end of voire dire does not dispel the doubts” about Juror #474’s ability to impose a death sentence.
    The judge disagreed, ruling that the woman satisfied him that she could fairly consider all the options. So, with no more than 15 minutes of questioning, Tigar had qualified a juror who seemed highly unlikely to vote for the death penalty. But that doesn’t necessarily mean he saved his client’s life.
    Tigar’s deft technique put Juror #474 into a pool of 64 death-qualified people from which the final 12 jurors and six alternates would be chosen. And prosecutors would undoubtedly use one of their 23 peremptory strikes to get rid of #474.
    But it was one of several strategic victories for the defense. By qualifying people who are soft on the death penalty, Tigar can dictate to the government how it must use its strikes. As a result, prosecutors go into the final phase of jury selection with little room for flexibility in their decision-making.

            Nichols Dodges a Bullet
    As skilled as Tigar has been at qualifying jurors who are soft on death, he has been equally adept at knocking out jurors who would be too quick to impose a death sentence.
    Juror #618 was one of many who appeared fair and balanced while answering questions from Judge Matsch and prosecutors. But 30 minutes of probing inquiry by Tigar revealed that the US Army veteran was really not prepared to give any significant consideration to mitigating factors that might be offered on behalf of Nichols in a penalty phase.
    The man had stated on a pre-trial questionnaire that he believed the death penalty was appropriate for defendants convicted of murder, but not necessarily in all circumstances.
    “So you’re open to a distinction among cases?” asked the judge.
    “Yes,” the man replied.
    The judge went on to explain federal court procedures, concluding with this question: “Do you think you will be able to base a decision about whether a defendant should be sentenced to life or death on, not only the circumstances of the crime, but also on his personal background and his individual characteristics—the things that make him a human being?”
    “Depending upon the extenuating circumstances, evidence given, etc.?” asked the juror.
    “That’s right,” said the judge.
    “Could I make a decision as far as whether he received one or the other (life or death) if found guilty?” the juror asked.
    “That’s the question,” the judge replied. “Can you do that?”
    “Yes,” said the juror.
    Prosecutor Pat Ryan then sought to make sure this juror would be qualified. He concluded his set of questions with a bit of insurance which, he presumably hoped, would prevent the defense from eliminating the juror.
    “Now,” began Ryan, “do you think it’s appropriate and just that a jury, additionally, consider all of the evidence about a defendant and all of the aggravating circumstances—and whatever mitigating circumstances the defense might introduce—before making a sentencing decision?”
    “Yes,” said the man.
    “And can you agree to take all of that into account prior to making your decision?”
    “Yes,” the juror repeated.
    Then it was Tigar’s turn. He posed a hypothetical, one that had been used in the questionnaire all jurors had filled out a month earlier. It asked jurors to assume they were writing the death-penalty law for the state of Colorado.
    “Would you think that anybody who commits multiple, premeditated murders should receive the death penalty?” asked Tigar.
    “Yes,” the juror responded, without hesitation.
    Tigar then engaged the man in a long conversation about federal law, the process in a penalty phase, and the importance of aggravating and mitigating factors. Throughout this discussion, Tigar was drawing the juror out, trying to discover whether his promise to consider everything was genuine—or was it just another case of a juror giving the court what he thought were the “right” answers?
    Finally, the juror said: “Before I would make a decision on another human’s life, I would want to hear all of the facts and evidence or, as you said, mitigating or whatever.”
    “In addition to hearing,” asked Tigar, “could you give consideration to it? That is, do you think you’d be really open—in a case in which somebody killed a lot of people, premeditatedly—really open to considering—“
    “No,” the juror interrupted. “If you say it: killed an awful lot of people, premeditatedly—no. I would probably not be as open as I probably should—if you use those words.”
    By this time Judge Matsch was frustrated and, confessing his own confusion, he took over the questioning.
    Throughout jury selection, the judge had struggled to prevent the lawyers from asking questions based on the specific facts of the Oklahoma City bombing. He preferred that they rely on hypotheticals, so jurors would not feel they had been locked-in to taking positions on Nichols before hearing the evidence.
    But this time, Matsch apparently saw no other way to clear up the matter. After confirming the juror was aware that Timothy McVeigh received a death sentence for the Oklahoma City bombing, the judge asked: “If the defendant (Nichols) were to be found guilty of some role in connection with the same crimes, then what is your view with respect to punishment?”
    “In this particular case,” said the juror, “I could find for the death penalty.”
    Finally, the questioning came back to Tigar, who delivered the final blow to the prosecutor’s hope of keeping Juror #618 in the pool.
    “I was making it deliberately hypothetical,” said Tigar. “If a person is found guilty of multiple, premeditated murders, are you open to considering a life sentence for that person?”
    “No,” said the juror.
    Three days later, the judge again heard challenges for cause. This time, Tigar argued that #618 must go, because he could never really give fair consideration to the possibility of life for Terry Nichols.
    Judge Matsch agreed.

    Copyright 1999, by The Courtroom Television Network, LLC.