When the crime produces the senseless death of 168 innocent people, heart-rending testimony will be inevitable when the defendant stands trial.
To many, that is precisely as it should be. As a matter of law and justice, prosecutors are entitled to delve into the emotional effects of a crime upon its victims and survivors.
Yet as the emotion in any courtroom mounts, few would argue that jurors' ability to remain objective stands at risk. In cases dominated by deep emotion - such as the Oklahoma City bombing trial - can jurors adequately separate feeling from fact to assess a defendant's guilt or innocence?
That question is at the heart of the trial of bombing codefendant Terry Lynn Nichols, in which victim testimony took center stage this week in Denver. With the Nichols trial now under way and the Louise Woodward verdict in doubt, the issue of whether emotion clouds jurors' power to discern truth is under particularly close scrutiny. The direction the Nichols trial takes could better define how far prosecutors will be able to go in playing for pathos in the courtroom.
"The prosecution has the right to establish its case in the most dramatic and emotional way it can," notes Andrew Cohen, a Denver defense attorney and trial consultant. "And the intent of the defense is to keep jurors from getting so overwhelmed by inflamed passions that they can't judge the facts. Ideally, you want a balance. [The Nichols trial] is a classic case where you have that battle going on."
Already, jurors in the second bombing trial have been brought to tears hearing survivors' accounts of the human tragedy in the aftermath of the April 19, 1995, blast. At one point this week, US District Judge Richard Matsch halted testimony from a witness who began describing the screams of the injured who were trapped inside the Alfred P. Murrah Federal Building. "I think we're going on beyond what is relevant," the judge concluded.
And while some may favor a system where guilt or innocence is debated without stirring jurors' prejudices, experts say completely circumventing emotional response is probably unrealistic.
"There's no guarantee you can get jurors to separate emotions from facts. The jury is made up of human beings, and human beings are emotional by nature," says Robert Hardaway, a law professor at the University of Denver, and a former Colorado prosecutor and public defender. "You do the best you can, but there is going to be some emotional influence no matter what. No system is perfect."
One of the ways defense lawyers try to limit the impact of emotion is through jury selection - by screening out those who appear particularly sensitive.
Beyond that, the nature of the testimony admitted is a matter decided by the judge. In the trial of codefendant Timothy McVeigh, which resulted in a conviction and death sentence last June, Judge Matsch worked hard to keep the courtroom atmosphere neutral. He banned jewelry such as lockets and pins that memorialized victims, he admonished spectators to avoid displays of emotion, and he restricted evidence calculated to evoke emotional reactions in jurors.
Even so, testimony became so wrenching at times that lead prosecutor Joe Hartzler stood at the podium on one occasion wiping a tear from his eye. Victims' family members sobbed quietly in the back rows of the courtroom on a regular basis. Even the no-nonsense Matsch was observed moist-eyed at times.
Nichols is charged with the same 11 federal counts of conspiracy and murder as was McVeigh. And as with McVeigh, federal prosecutors will try to prove that Nichols and McVeigh conspired to blow up the Murrah Building in retaliation for the FBI siege on the Branch Davidian compound in Waco, Texas, two years earlier.
But lead defense attorney Michael Tigar wants the similarities between the two cases to end there. To avoid an atmosphere similar to the McVeigh trial, Mr. Tigar wants Matsch to tighten restrictions on graphic and heart-tugging testimony. He has also requested that victim witnesses be confined to a portion of the government's case, rather than interspersed throughout, as in McVeigh's trial. So far, the judge has not ruled publicly on the motions.
Judging from opening arguments in the Nichols case, prosecutors don't plan to scale back on emotional evidence. Chief prosecutor Larry Mackey cautioned jurors to steel themselves for painful testimony about each victim's death. "All of this testimony about the loss of life will be difficult to listen to," he warned. "But it's why we're here. This is a murder case."
Tigar, in response, gave jurors a caution of his own: "The prosecutors may choose to put before you graphic, emotional, tragic evidence of the devastation on April 19. This evidence, these events, are not in dispute. The prosecutors may replay these terrible images as if to say somebody has to be punished for these things. That, of course, is not the question. The question for you at the end of the evidence will be, who [is responsible]?"
Turning attention to the question of guilt or innocence in this manner may be the best hope for keeping jurors neutral. "The way for the defense to take emotion out of it is to concentrate on guilt or innocence, rather than the nature of the act," Mr. Hardaway says. "You agree that it was terrible, but you say the accused isn't guilty."
Because, realistically, when the crime leaves 168 people dead, emotional testimony is a given, Hardaway says. "Some of this testimony the judge has to allow in."