The U.S. Justice Department plans to poll potential Colorado jurors to learn what kind of case it will need to obtain a death penalty verdict against the two Oklahoma City bombing suspects, a department source says.
Prosecutors are concerned about the reluctance of Coloradans to impose the death penalty. Colorado has only five people on death row and has not executed anyone since 1967. Oklahoma has 136 people on death row and last year executed three.Some prosecutors are arguing for a stripped-down case focusing largely on circumstantial evidence. Others are leaning toward a case alleging a longstanding conspiracy, believing a case built on just circumstantial evidence would not persuade a jury to impose the death penalty.
"The prosecution theme will depend on what our poll shows the jury needs to hear," the source said.
One option being considered is to hire a firm that did the polling in Oklahoma that led to the trial being moved to Denver, the source said.
Timothy McVeigh and Terry Nichols face murder and conspiracy charges in the April 19 bombing of the Alfred P. Murrah Federal Building that claimed 169 lives.
Richard Burr, one of McVeigh's attorneys, told the Tulsa World he was troubled by the proposed poll because it would raise the possibility of the death penalty in the minds of potential jurors before the trial.
"I don't know how you counter this hegemony of the federal information system," Burr said this week. "It's an unfortunate dynamic that has been set up from day one in this case."
Investigators have said the bombing may have been retaliation for the cult disaster near Waco, Texas, in which nearly 80 people died. The deaths enraged far-right groups, and investigators say Nichols and McVeigh shared extremist views.
Last month's decision by U.S. District Judge Richard Matsch to move the trial to Denver upset many in Oklahoma, a tough law-and-order state. Some entrepreneurs have been selling T-shirts expressing gratitude that the trial wasn't moved to California, where the death penalty is seldom carried out.
Colorado lawmakers, prosecutors and defense attorneys say the federal government could have a tough time persuading a Colorado jury to impose the death penalty, even if there's enough evidence to get a conviction.
"I don't think a jury in Colorado will return a death verdict if the case is purely circumstantial," said Robin Desmond, deputy state public defender.
"Always in referendums, 80 percent say they favor the death penalty," he added. "But when they're actually asked to return a death penalty verdict, they're very reluctant."
Meanwhile, federal prosecutors said that McVeigh's lawyers are wrong if they believe they will find useful data by reviewing classified intelligence information, The Daily Oklahoman reported this week.
"Requiring the CIA to search its files and produce information on terrorist groups that might have been willing and able to commit the bombing would be a limitless task that would accomplish nothing," prosecutors said in a brief released this week.
Federal rules of evidence do not give defense attorneys broad leeway to search for speculative suspects, the brief said. The case against the former Army buddies was prepared without assistance from the CIA, it said.
Prosecutors have asked Matsch to reject McVeigh's request to view broad areas of CIA documents and other intelligence information that he claims may lead to other bombing suspects.
Prosecutors have asked federal agencies for any evidence pointing to other suspects, but none has been provided, the brief said. If the information surfaces, it will be turned over to the defense, it said.
Matsch is expected to consider the classified information issue in a hearing scheduled to begin April 9 in Denver.
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ADDITIONAL INFORMATION
Basement cells
Rooms recently built in basement of courthouse probably will house the defendants during the trial.
Courtroom
Probably will be Judge Edward Nottingham's courtroom on the second floor of the federal courthouse. It is Denver's largest federal courtroom, seating 150.
Key Players
Judge Richard Matsch. Defense: Stephen Jones, Michael Tigar. Prosecution: Joseph Hartzler, Patrick Ryan.
Jury
12 jurors and an unknown number of alternates will hear the case. They will be registered voters or licensed drivers from Colorado.
Spectators
Most of the seats are expected to go to survivors and relatives of victims. Authorities are seeking financial aid so families can travel to Denver.
Media
Local, national and international media representatives will be vying for seats in courtroom. Judge Richard Matsch will decide who gets seats. Cameras won't be allowed unless Matsch makes an exception for closed-circuit transmission.
Q&A
Q When is the trial and how long will it last?
A No date has been set. District Judge Richard Matsch, who will conduct the trial, earlier this year canceled a trial date of May 17, saying that was too soon. An attorney for defendant Timothy McVeigh has speculated that the trial won't start until after Labor Day, Sept. 2. A trial could last 8 weeks or 1 year, experts say.
Q Who can attend the trial?
A The largest courtroom at Denver's federal courthouse seats 150 spectators. A portion of the seats will be set aside for the media and victims' families. A pool system may be used for media seats. It's unclear whether the general public will be allotted seats.
Q Will there be two trials?
A This hasn't been determined yet, but attorneys for defendants, Timothy McVeigh and Terry Nichols expect to file motions soon to try the men separately.