Terry Nichols and Double Jeopardy

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I suspect that if I were to take a poll in Oklahoma today as to whether or not the current trial of Terry Nichols is justified, the answer would be almost 100 percent in the affirmative. Nichols, after all, has been convicted in federal court for having a crucial role in the 1995 Oklahoma City bombing and received a life sentence. It is that sentence that has Oklahomans enraged, however, and now he is being tried on state charges of murder for one and only one reason: so he can receive the death penalty. If there ever was a case in the United States of "verdict first, trial later," this one surely fits that description.

Before going on, I must make some things clear. The first is that this is not a defense of Nichols’ alleged actions that helped bring about that awful event in April 1995. No amount of dissatisfaction with the federal government justifies what he and his accomplices did and I cannot nor will not defend the bombing of the Murrah Federal Building.

The second is that under different circumstances, I would hold that a state trial of Nichols would have been perfectly justified, with no federal trial whatsoever. Nichols is charged with taking a major role in the murder of nearly 200 individuals and injuring scores more, and the families and survivors of those killed or injured in those attacks surely do deserve their day in court.

However, that having been said, I believe that this present trial is nothing more than a kangaroo court that has been assembled so that the state government can legally kill Nichols in revenge. The reason I use such strong language — which no doubt will make me very unpopular in Oklahoma — is that for purposes of justice, this is a case of double jeopardy, something the Constitution of the United States clearly prohibits. To put it another way, while Nichols assaulted the people of Oklahoma in 1995, the people of Oklahoma today — with approval from the U.S. Department of Justice and U.S. Attorney General John Ashcroft — are assaulting the Constitution and I am not sure which attack will have caused longer run harm.

Although there are a number of other activities swirling about in this case, including the state judge threatening to dismiss all of the charges "with prejudice" (which would mean the state could not bring those charges against Nichols again) due to prosecutorial misconduct, I would like to concentrate solely upon the issue of double jeopardy. Now, this is not the first time that the presence of a dual system of justice — state and federal — has permitted what is in effect double jeopardy to occur.

However, the act of trying an individual twice for the same case, in violation of the spirit of the Constitution, usually has resulted first in a trial at the state level, then one in federal court. In 1993, two Los Angeles police officers were found guilty in federal court of violating the civil rights of Rodney King a year after a California state court had acquitted those two officers (and two others) of assaulting King.

The original King verdict touched off the Los Angeles riots of 1992, and the administration of George Bush, facing a tough re-election challenge, decided to retry the police officers on federal charges. Although Bill Clinton defeated Bush that year, the new administration continued with the trial and a jury the second time "got it right," according to supporters of this action.

In 1991, the same year the police officers had their run-in with King, a rabbinical student named Yankel Rosenbaum was stabbed to death by a black New York youth named Limerick Nelson during the Crown Heights riots. Although the evidence against Nelson was overwhelming, a jury acquitted him in a farce of a trial. (The jurors afterward went to a party hosted by the defense attorneys.)

The verdict clearly was unpopular in much of New York, and since Rosenbaum happened to have been standing on a public sidewalk, the government tried Nelson on civil rights charges and won a guilty verdict. (The verdict was overturned on appeal, as the trial judge right at the beginning had made it clear to jurors that the original trials had been flawed and that they had an opportunity to obtain a "proper" verdict of guilty. In a third trial, a federal jury once again convicted Nelson, who by then had served almost all of the original 10-year sentence.)

In both cases, the original state court verdicts were unpopular and U.S. attorneys were able to take advantage of a public mood that wanted revenge. Furthermore, a person like Limerick Nelson is hardly a sympathetic character, murdering someone simply because the man was Jewish.

Yet, despite what the courts have ruled, both the Los Angeles and Nelson cases were examples of double jeopardy. In both trials, U.S. attorneys used the same evidence that had previously been used by state prosecutors. Furthermore, the trials covered the same actions that the defendants had taken. In other words, there was no difference, except that the first trials had taken place in state courts and the second in federal court, with the charges having different names.

While the Los Angeles police officers and Nelson cases were an affront to the Constitution, the Nichols case is even worse. At least in the other two instances, juries acquitted those who were in the dock. Nichols, on the other hand, was convicted, with the conviction occurring in federal court, where the rules of evidence are loose and the playing field is heavily tilted towards the prosecution.

If one goes back to the original trial, there was no reason for Nichols to have been tried first in federal court. In fact, there was no reason to have tried him there at all. (The government tried him in federal court for the deaths of five federal law enforcement agents.) Given that most of the people killed in the bombing either were federal employees or their children who were in a day care center there, it would seem that the government was declaring that the lives of the agents were more important than the other lives.

Furthermore, my own experience in examining and writing about federal criminal law tells me that the feds wanted Nichols tried in federal court precisely because less evidence is needed there than in state courts in order to obtain a conviction. However, now that a jury — even a federal jury — has ruled Nichols guilty, I do not see any way that he can avoid a similar verdict in Oklahoma, along with receiving the death penalty.

If the original trial of Terry Nichols had been held in Oklahoma state court, I would have been willing to accept whatever the outcome might have been. That is where the trial should have taken place, not federal court.

However, now that the feds have acted — unconstitutionally, I might add, given the original intent of the Constitution’s framers — I do not believe that justice is served by further burying what is left of the rule of law. No, this is not justice; it is mob rule in which the people with the guns tell the rest of us that they will interpret the Law of the Land in any way that they see fit. The courts go along and continue the farce.

Supporters of this trial are declaring that since the federal jury and judge did not impose a death sentence upon Nichols, this is an opportunity to "get it right." Unfortunately, this is yet another example of government authorities — state and federal — combining forces to trash the Constitution and impose a system of "justice" that once was alien to this country. We no longer have rule of law in the United States; law has ended, and the will of the people with authority has replaced it.

March 27, 2004

William L. Anderson, Ph.D. [send him mail], teaches economics at Frostburg State University in Maryland, and is an adjunct scholar of the Ludwig von Mises Institute.

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