Oklahoma to try again for Nichols death penalty

The state of Oklahoma will retry Terry Nichols, Timothy McVeigh's co-conspirator in the Oklahoma City bombing, in an attempt to secure a death penalty conviction despite widespread misgivings over the fairness, cost and likely success of the venture.

Nichols is already serving a life sentence on federal charges. The district attorney in Oklahoma City, who announced the decision at a memorial built to celebrate the lives of the 168 people killed in the explosion at the Alfred P Murrah federal building on 19 April 1995, said he wanted to make sure nothing in the federal appeals process could prevent Nichols from spending the rest of his life behind bars.

"Accountability to the laws of the state of Oklahoma demands we stay the course," Wes Lane, the district attorney, said. "I will not roll the dice on this issue. There is simply too much at stake."

If the death penalty prosecution is successful, Nichols will meet the same fate as McVeigh, who was deemed to be the mastermind behind the bombing and executed by lethal injection in June.

Nichols was convicted in federal court in 1997 on charges of conspiracy and involuntary manslaughter relating to the deaths of eight federal government employees. He was acquitted of more serious murder charges, largely because he was not in Oklahoma City at the time of the explosion.

Neither he nor McVeigh was tried for the deaths of the other 160 ordinary citizens ­ a matter that usually falls under the jurisdiction of the state courts.

Although some of the victims' families have insisted the crime should be prosecuted in its entirety, there are doubts that Nichols could receive a fair trial in Oklahoma City.

Even if he were sentenced to death, the venue of the trial might be reason enough for the sentence to be overturned on appeal.

The district attorney's decision went against the advice of many law enforcement officials including Oklahoma's Governor, Frank Keating, a former prosecutor. "If the evidence is that he didn't light the fuse, it will be very difficult to get a punishment greater than life in prison," Mr Keating said.

The move also comes at a time when America's appetite for the death penalty has been diminished by growing doubts over the safety of capital convictions ­ a study published in yesterday's Washington Post suggested executions could be down by as much as one-third this year.

DNA testing and a growing number of reports suggesting defendants in capital cases were improperly represented by their lawyers have been responsible for changing such high-profile minds as Sandra Day O'Connor, a member of the US Supreme Court who previously supported the death penalty but now says she has "serious doubts" about how it is administered.

The Washington Post reported that only 12 people had been executed in Texas this year, compared with 40 ­ the highest number yet ­ in 2000. In Virginia there had been one execution, compared with eight last year and 14 in 1999. Opinion polls show popular support for capital punishment is at its lowest in two decades, although a majority of Americans is still in favour.

Nichols' prosecution has been complicated by the revelation that the Federal Bureau of Investigation withheld several thousand pages of evidence during his and McVeigh's trial.

Nichols' lawyers may now have an opportunity ­ either in a federal appeals court or in state court in Oklahoma ­ to argue that the conspiracy to blow up the federal building went far wider than two people, and that Nichols' role was smaller than prosecutors have alleged.

The FBI has rejected the claim that there were other co-conspirators, arguing McVeigh was alone in Oklahoma City on the day of the bombing. That line, however, is contradicted by the testimony of many witnesses interviewed by the FBI but never put on the witness stand in court.