McALESTER, Okla. – The judge in Terry Nichols' (search) state murder trial in the Oklahoma City bombing on Wednesday placed the last two alternates on the jury deciding his fate, raising the possibility that Nichols could escape the death penalty if another juror is disabled or dismissed.
Judge Steven Taylor (search) used the remaining alternates to replace two jurors he dismissed for reasons he did not reveal. But Taylor repeatedly admonished the 12-member panel not to talk about the case before they begin deliberating Nichols' sentence.
If the number of jurors were to drop below 12, sentencing would be placed in the hands of the judge, who cannot sentence Nichols to death. State law only allows juries to impose capital punishment, according to Oklahoma Supreme Court (search) precedents.
Taylor's only apparent option would be to sentence Nichols to life in prison, with or without the possibility of parole.
Taylor excused juror Dorma Jean Carrion and jury foreman Wayne Gates on the second day of the trial's sentencing phase, replacing them with the last of six alternates picked at the start of Nichols' trial to supplement the original 12-member panel.
Two jurors and one alternate were excused before testimony began because they were distantly related to a member of the prosecutor's staff. Another juror was excused last month after he had a heart attack.
Jurors convicted Nichols on May 26 of 161 counts first-degree murder for the 1995 bombing of the Alfred P. Murrah Federal Building (search).
He already is serving life in prison on federal charges for the deaths of eight federal agents in the bombing, which killed 168 people. Oklahoma prosecutors charged Nichols for the other 160 people who died and one victim's fetus. The state jury has sentenced him to life in prison without parole for the count involving the fetus.
Also Wednesday, Taylor denied a defense motion for a mistrial when a 5-year-old girl sitting a short distance from jurors wept after her mother testified about the deaths of three relatives, including a child.
"I understand human emotion, but it will not take place in this courtroom," Taylor said.
Thirty witnesses testified for state prosecutors during the second day of victim impact testimony.
Nichols' attorneys sought the mistrial following the testimony of Kathleen Treanor, whose daughter, Ashley Megan Eckles, 4, and in-laws Luther and LaRue Treanor were killed in the Social Security Administration office on the first floor.
Jurors and spectators cried softly as Treanor said she was "plunged into the depths of depression" by the loss.
"For weeks I prayed for death," Treanor said.
After testifying, Treanor joined her 5-year-old daughter and her daughter's aunt on the front row of the gallery. They huddled in an emotional embrace, and the girl started crying.
Taylor ordered a recess and jurors left the courtroom. After denying the mistrial motion, Taylor admonished jurors to not be swayed by emotion and sentiment.
"In no way can you consider any emotional response," Taylor said. "Whatever occurs in the gallery of the courtroom is not evidence."
In other testimony, Jeannine Gist, whose daughter, Karen Gist Carr, died in the bombing, fought back tears as she recalled her daughter's energy and love of sports.
Jurors dabbed their eyes as Gist said her daughter had appeared to her in dreams. Nichols removed his glasses during part of her testimony and appeared to wipe away a tear.
"I should have gone before she did," said Gist, choking with emotion. "I'm her mother. I just should have gone first."
Jacquelyn Bowman, whose father, David Jack Walker, an engineer for the U.S. Department of Housing and Urban Development, died in the blast, glared at Nichols as she read from a prepared statement that said her father "was everything to me." Nichols stared back.
"Many times I have wished that I could go to sleep and not wake up so I wouldn't have to deal with this emotional pain," she said.