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Huck Finn, the River & Trying Your Case

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Huck Finn, the River & Trying Your Case HUCK FINN, THE RIVER AND TRYING YOUR CASE Sponsor: KBA Criminal Law Section CLE Credit: 1.0 Wednesday, June 18, 2014 2:25 p.m. - 3:25 p.m. Exhibit Hall I Northern Kentucky Convention Center Covington, Kentucky A NOTE CONCERNING THE PROGRAM MATERIALS The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority. Printed by: Evolution Creative Solutions 7107 Shona Drive Cincinnati, Ohio 45237 Kentucky Bar Association TABLE OF CONTENTS The Presenter .................................................................................................................. i Item One: Terry Nichols ................................................................................................. 1 Items Two and Three – From the Case of Orlando Cordia Hall ..................................... 63 THE PRESENTER Professor Michael E. Tigar Duke University School of Law Post Office Box 528 Oriental, North Carolina 28571 MICHAEL E. TIGAR is the Emeritus Professor of the Practice of Law at Duke University School of Law and Washington College of Law, American University, Washington, D.C. He received his B.A. in political science in 1962 from the University of California, Berkeley and his J.D. in 1966 from Boalt Hall, University of California, Berkeley. Mr. Tigar has authored or co-authored thirteen books, three plays and scores of articles and essays. He has been Chair of the 60,000 member Section of Litigation of the American Bar Association and Chair of the Board of Directors of the Texas Resource Center for Capital Litigation. In his teaching, he has worked with law students in clinical programs where students are counsel or law clerks in significant human rights litigation. Mr. Tigar is listed in Professor John Vile’s book, Great American Lawyers: An Encyclopedia (2001), as one of the 100 "great" lawyers in United States history. i ii HUCK FINN, THE RIVER AND TRYING YOUR CASE Michael E. Tigar These materials have to do with three cases, each of which can teach us about law, lawyers and lawyering. The first item is a chapter from the book Trial Stories, edited by me and Angela Jordan Davis and published by Foundation Press. You can order it on Amazon.com as a regular book or in Kindle format. It is a collection of essays about iconic trials and (not surprisingly) I recommend it. I will also be discussing another matter that is the subject of a chapter in that book – the Vioxx litigation. The second and third items are from the case of Orlando Cordia Hall, convicted of murder in federal court in Fort Worth, Texas. After he exhausted his domestic remedies, Mr. Hall brought his case to the Inter-American Commission on Human Rights. I agreed to be an expert witness for Mr. Hall. The first item is an excerpt from my oral testimony. The second is an affidavit filed after the oral hearing. I. ITEM ONE: TERRY NICHOLS A SANCTUARY IN THE JUNGLE: TERRY LYNN NICHOLS AND HIS OKLAHOMA CITY BOMBING TRIAL1 Michael E. Tigar2 James E. Coleman, Jr.3 A. Factual Background On April 19, 1995, Timothy McVeigh, who was then twenty-six years old, stepped from the cab of a rented Ryder truck parked in front of the Murrah Federal Building in Oklahoma City. The truck carried a 5,000 pound bomb made of barrels of ammonium nitrate mixed with diesel fuel and nitromethane, with blasting caps rigged to set it off. Ammonium nitrate is a commercially-available fertilizer, whose explosive properties are well known. On a farm, ANFO (ammonium nitrate/fuel oil) charges often are used to blow stumps and for other benign purposes, and United States Department of Agriculture literature describes how to make them. McVeigh's purpose was much more sinister. 1 The entire trial transcript is on Westlaw in the database OKLA-TRANS. There are also DVDs of the pretrial and trial proceedings in the McVeigh and Nichols cases, published by PubNetics, Inc. of Denver, Colorado and available in law libraries, including the Pence Library at Washington College of Law. Michael Tigar's opening and closing arguments are in Volume XXV of the Classics of the Courtroom Series, published by Professional Education Group, www.proedgroup.com. In excerpting trial materials, the authors do not always use ellipses to indicate omissions. The phrase "sanctuary in the jungle" was used by Edward Bennett Williams, during oral argument in Alderman v. United States, 394 U.S. 165 (1969). See Michael E. Tigar, Persuasion: The Litigator's Art 281 (1999). 2 Research Professor of Law, Washington College of Law, American University. 3 Professor of the Practice of Law, Duke Law School. 1 McVeigh ignited a timed fuse and walked away. The explosion devastated the building, killed 168 people, wounded hundreds more, and damaged many nearby buildings. McVeigh's motives were difficult to establish precisely, but he was a right-wing zealot convinced that the American government was the corrupt agent of an international conspiracy to deprive Americans of their liberties. He had ties to several armed militia groups. McVeigh left Oklahoma City in his Mercury Marquis automobile, which he had parked near the Murrah Building as a getaway car. On his way North on Interstate 35, an Oklahoma trooper noticed that the Marquis had no license plate. During the routine stop, McVeigh revealed that he had a loaded pistol in his car. The trooper arrested him on the firearm and license plate charge. While McVeigh was in the Perry County, Oklahoma jail, the FBI search team in Oklahoma City found the Ryder truck rear axle and traced the truck to a rental agency in Junction City, Kansas. The agency employees described the two men who rented the truck, one of whom matched McVeigh's description. A local motel owner identified McVeigh from an FBI sketch. On April 22, 1995, FBI agents took McVeigh into custody in Perry County. The FBI also discovered that McVeigh had a friend, Terry Nichols, whom he had first met in the Army and with whom he had lived for a time on the Nichols family farm in Michigan. Nichols' name and photograph were broadcast nationwide. Nichols was then living in Herrington, Kansas, with his wife Marife and their young daughter. On the afternoon of April 22, 1995, Terry Nichols – having heard of the news broadcasts – voluntarily went with his family to the Herrington police station. The local police notified the FBI and Nichols was taken into custody, first as a material witness and later as an alleged accomplice. McVeigh and Nichols were jointly charged in Oklahoma federal court with conspiracy to use a weapon of mass destruction and to commit arson, use of a weapon of mass destruction, arson, and eight counts of first- degree murder of federal employees. Oklahoma authorities reserved the right to try the two in state court for an additional 160 homicides. Stephen Jones of Enid, Oklahoma, was appointed counsel for McVeigh. Because of the difficulty in finding an Oklahoma lawyer who would accept appointment to represent Nichols, or who did not feel a conflict in the representation, Chief Judge David Russell of the Western District of Oklahoma appointed Professor Michael E. Tigar, then of The University of Texas School of Law, as Nichols' counsel. Because this was a capital case, Nichols was entitled to two experienced counsel.4 The court appointed Ronald G. Woods of Houston, Texas. Woods was a University of Texas law graduate who had served as an FBI agent, an assistant 4 In a capital case, the court will also appoint additional lawyers to assist with the work, as well as paralegals and experts in relevant fields. See, e.g., Ake v. Oklahoma, 470 U.S. 68 (1986); American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (1989), cited with approval in Rompilla v. Beard, 545 U.S. 374, 387 n.7 (2005). 2 district attorney in Houston, Texas, and an assistant United States attorney before being appointed by President George H.W. Bush as United States Attorney for the Southern District of Texas. After he left government service, Woods went into private practice. He and Tigar had teamed up before as co-counsel – with Dick DeGuerin – in the defense of Senator Kay Bailey Hutchison. As the case developed, the court also appointed additional lawyers to assist with the work, as well as paralegals, experts and investigators. B. The Idea of Sanctuary The Oklahoma City bombing was world-wide news, billed as the worst act of domestic terrorism in American history. It so profoundly affected Oklahomans that it became the event by which time was measured: newspaper articles about even unrelated events placed the date as occurring at a certain time after April 19, 1995. Tigar and Woods recoiled at the prospect of a trial in Oklahoma City, Oklahoma, presided over by a judge who had been affected in some way by the bombing and before jurors whose lives were interwoven with the important events. Regardless of where the trial was eventually held, the prosecution's case would inevitably recall, for the jurors as for all Americans, the devastation, fear and anger of the bombing and its aftermath.
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