Killing McVeigh: The Death Penalty and the Myth of Closure.

• Author: Tigar, Michael E.
• Position: Book review

KILLING MCVEIGH: THE DEATH PENALTY AND THE MYTH OF CLOSURE. By Jody Lynei Madeira. New York and London: New York University Press. 2012. Pp. xxvii, 274. Cloth, $65; paper, $24.

INTRODUCTION

[O]n the 19th morning of April at 9:02 in the morning, or actually just a few minutes before, Timothy McVeigh parked in front of the Murrah Building in Oklahoma City. He was in a Ford F-700 truck from Ryder rentals with a 20-foot box.... The driver parked the truck and set the bomb to go off. .... ... An explosion as quick as a heartbeat and sadness as long as life. (1) These words--from my opening statement in United States v. Nichols--sketch a story that many of us heard and saw in the days following April 19, 1995. The bombing that killed at least 169 people became an event by which time was thereafter measured--at least in Oklahoma. (2) Ninety minutes after the bombing, a state trooper arrested Timothy McVeigh on a traffic charge; within hours, he was linked to the bombing, and the legal process began.

Terry Nichols, who had met McVeigh when they were in the army together, was arrested in Herington, Kansas, where he lived with his wife and daughter. Within a few weeks, Michael and Lori Fortier, McVeigh's collaborators in Kingman, Arizona, had begun negotiating their plea bargain. Michael Fortier had traveled with McVeigh to inspect the Murrah Building as a potential bombing site. On the kitchen floor of the Fortiers' trailer home in Kingman, McVeigh had used soup cans to show how he would construct an ammonium nitrate--fuel oil bomb with plastic barrels in the back of a rented truck. Fortier and McVeigh were heavy methamphetamine users.

On August 11, 1995, the federal grand jury in Oklahoma City indicted McVeigh and Nichols for conspiracy to commit arson on a federal building and to use a weapon of mass destruction, as well as on substantive counts of arson, use of a weapon of mass destruction, and first degree murder of the eight federal law enforcement officers who died in the blast. The government alleged that Nichols had worked with McVeigh to plan the bombing and was therefore liable as a conspirator and accomplice, even though he had not been with McVeigh in Oklahoma City that morning. Nichols's defense was that his friendship with McVeigh did not include complicity in the bombing and that McVeigh had worked with others to plan and carry out the bombing.

District Judge Alley denied a recusal motion; his chambers had been damaged by the bombing, and he knew many victims and potential witnesses. (3) On mandamus sought by Nichols's counsel, the Tenth Circuit ordered all Oklahoma district judges recused. (4) The Tenth Circuit chief judge designated Richard Matsch, (5) chief judge for the District of Colorado, to preside over the case.

Judge Matsch came to Oklahoma City, where he heard--and on February 20, 1996, granted--a motion to change venue to Colorado. (6) In later hearings, he granted McVeigh and Nichols separate trials. (7) McVeigh's case went to trial in Denver on March 31, 1997. The jury found him guilty on all counts on June 2, 1997,8 and after the penalty phase, it decided on June 13 that he should receive the death penalty. (9)

Voir dire for Terry Nichols's trial began on September 18, 1997. (10) On December 23, the jury found him guilty on the conspiracy count, not guilty of arson, not guilty of use of a weapon of mass destruction, not guilty of first degree murder, not guilty of second degree murder, and guilty of involuntary manslaughter. (11) Judge Matsch held that this verdict required a penalty trial, which began after a few days' recess for the holidays. On January 7, 1998, the jury announced that it could not agree on the threshold issue of whether Nichols had a culpable intent with respect to resulting death. (12) On June 4, 1998, Judge Matsch sentenced Nichols to life without parole. (13)

In an effort to get a death verdict, the Oklahoma County district attorney's office filed first degree murder charges against Nichols for victims other than the federal law enforcement officers. He was found guilty on May 26, 2004, but the jury declined to impose the death penalty. He is now serving a life sentence. (14) Michael Fortier served a little over ten years; Lori Fortier received immunity.

From the first days after the bombing, politicians called for justice in the form of capital punishment. (15) Media coverage was intense, particularly in Oklahoma: when an event disturbs the community, the media cater to the public desire for assurance that the immediate situation has been resolved and that something that can be called justice will be done with celerity. (16)

Victims groups--to give them a name that includes survivors, families, and supporters--exerted influence on the trials and on public policy. The victims groups focused on three principal tasks: first, to plan and build a memorial in Oklahoma City; second, to lobby for changes in the law to limit appeals in capital cases; and third, to witness, influence, and provide evidence in the criminal trials and posttrial events in the McVeigh and Nichols cases (pp. 70-78).

Now comes Professor Madeira's thoughtful and timely study, Killing McVeigh: The Death Penalty and the Myth of Closure. (17) Madeira examines the ways that victims groups came together and the goals they set for themselves. Her book is based on dozens of interviews with dozens of victims, her study of the trial record and media coverage, and a survey of literature on group memory and victim participation in trials. (18)

The book's title is apt. Madeira exposes and dismisses the myth that killing a perpetrator gives victims any benefit that can meaningfully be called closure. She focuses, rather, on "memory work," a term she uses over 100 times to describe words, actions, and feelings of victims. (19)

Madeira derives the idea of memory work from two distinct sources and amply documents the many sources on which she relies. First, she refers to the work of such groups as survivors of the Nazi holocaust, whose shared loss has led them to create memorial spaces and to seek redress, healing, and accountability. (20) Second, she draws on her own and others' work with and about crime victims, who seek to have their narratives and interests play a role in the criminal process. (21)

Reading this book compelled me to revisit my own memories of the Oklahoma City bombing and trials. I was appointed in April 1995 by a federal judge in Oklahoma to represent Terry Nichols in his federal trial. Cocounsel in this capital case was Ronald G. Woods, the best cocounsel one could imagine. "I" or "we" in this Review refers to the Tigar-Woods team and to the lawyers, paralegals, law students, investigators, and consultants who worked on that team for more than four years.

Madeira has captured the stories of victims, based on her contacts and work with them. She has respected their loss and honored her commitment to them. My relationship with the victims, collectively and in many cases individually, was different. I will not use their names in this Review; they are entitled to their privacy, at least to the extent that they have the right to control who refers to them in any public way.

I should make my bias clear, although most readers will sense it without being reminded. My job was to test the prosecution's evidence and to present a defense--more than 80 witnesses in the defense case in chief. That work included sifting through more than 60,000 witness interviews and 100,000 items of physical evidence. It included legal research, motions practice, jury selection, a trial phase, and a penalty phase. This was the most intense experience of my professional life. Many days, our team met and talked with survivors, and we saw them in court. I said in opening statement,

We understand that there's not a joy the world can give like--like that it takes away. ... We will cross-examine all the witnesses who come here, even those who have lost so much. By doing that, we mean them no disrespect. To the living, we owe respect. To the dead, we owe the truth. (22) Killing McVeigh centers primarily on the actions, trial, and execution of Timothy McVeigh. Madeira discusses Terry Nichols and his defense team as a sort of contrast, to share victims' reactions to, and resentment of, the fact that Nichols was acquitted of the most serious charges against him and did not receive the death penalty (p. 167).

This blending helps us see the Oklahoma City survivors' stories in a broad, empathic, and informative context. But, I shall argue, we ought also to be careful lest we assign primacy to the survivors' narratives over those of others in and beyond the trial process. In this Review, I assess the relationship of group memory to the study of history, the presentation and distortion of memory in the trial process, and the use of group memory as an argument for retribution. I conclude with reflections on McVeigh and his death.

1. MEMORY VERSUS HISTORY

   Memory work is an ingredient of history, but it is not history; it influences the depiction of history. Madeira's book reminds us and warns us to see the relationship and separation between these two concepts. People who have been uprooted, suffered a natural disaster, or are victims of a horrific crime come together to share their stories. They seek a common narrative and spaces within which to display that narrative. They share experiences. They lend one another strength. They seek to vindicate their need for recognition and redress. I find this book so affecting because Madeira has taken care to recognize and record the victims' stories.

   The concept of memory work, however, deserves a deeper analysis: memory's use and value are not unique to the Oklahoma victims. I have worked with displaced peoples, victims of systematic torture and genocide, and those who struggled to end apartheid. I have listened to their stories and, as a human rights lawyer, tried to tell those...