"If you don't consider what happened in Oklahoma, Tim was a good person." --MICHAEL FORTIER
When the prosecution's star witness in the Oklahoma City bombing trial made this observation about his close friend Timothy McVeigh a few weeks ago, he provoked gasps and nervous laughter in the courtroom. The remark was absurd--an amazing, morally obtuse Yogi Berra-ism. And yet it serves as a perfect summary of the argument the defense must now make in order to save McVeigh's life.
After the Denver jury found McVeigh guilty last Monday of all 11 crimes with which he had been charged, the case entered the penalty phase, in which the jurors must decide whether McVeigh deserves to be executed. All the offenses--conspiracy to use a weapon of mass destruction, use of a weapon of mass destruction, destruction by an explosive and the murder of eight federal law-enforcement agents--carry the possible penalty of death. Questions about the morality of the death penalty itself are moot, since in order to join the panel, the jurors had to say they were capable of imposing it. Their vote must be unanimous; if it is not, then McVeigh receives a sentence of life in prison without parole. The jury may choose to give him that punishment, but that is the only alternative to death.
The burden for the prosecutors in this phase is to prove beyond a reasonable doubt that McVeigh's crimes involved one or more "aggravating circumstances." If blowing up a building full of people and killing and wounding hundreds of them isn't an aggravating circumstance, it is hard to imagine what would be. Nevertheless, there are certain legal requirements the government must meet. The federal death- penalty statute lists 15 possible aggravating circumstances, and the prosecution is trying to prove that four of these apply--that deaths occurred while McVeigh was committing various felonies, that he created a grave risk of death to people other than the victims, that he engaged in substantial planning and premeditation and that he killed federal law-enforcement agents. The jury may also consider aggravating circumstances that are not on the statutory list. In this case, the prosecution is attempting to establish that McVeigh caused multiple deaths, that he caused serious physical and emotional injuries, and that his offenses had a severe impact on the victims and the victims' families. Victim-impact testimony is the technical term for the heartbreaking tales that were told in the courtroom last week.
For its part, the defense, led by Stephen Jones, is trying to show that there are "mitigating circumstances." These can include severe mental disturbance, an inability to appreciate the wrongfulness of one's actions, relatively minor participation in the crime and so on. The defense will not attempt to show that any of these apply to McVeigh, but there is a catch-all provision that allows it to bring in the background, record and character of the defendant. Accordingly, Jones will call witnesses from McVeigh's past with the hope of humanizing him and showing that up until April 19, 1995, he was a decent young man and fine soldier. Richard Burr, a soft-spoken death-penalty expert who is conducting the defense case in the penalty phase, told the jury that McVeigh is a man "who could be your son, who could be your brother, who could be your grandson."