GPSolo Magazine - July/August 2006
Brian Hermanson : Answering the Call
In 1846 in Albany, New York, William Freeman, a young black man deranged from years of physical abuse while serving a prison sentence for a crime he did not commit, entered the home of a prominent white man, there butchering the man, his small child, his pregnant wife, and her mother. When, in response to public threats, no lawyer would agree to represent Freeman, William Seward stepped forward. Seward (who would later in life narrowly lose the Republican nomination for president to Abraham Lincoln, only to become Lincoln’s secretary of state) mounted a vigorous insanity defense, simultaneously facing down the racial undertones, all in an effort to save Freeman’s life.
In 1995 in Oklahoma City, a rental truck containing 5,000 pounds of ammonium nitrate was parked adjacent the Alfred P. Murrah Federal Building when it exploded, killing 168 people, including 19 children and one rescue worker. Timothy McVeigh was subsequently tried in federal court and convicted of murder for the unthinkable act, was sentenced to death, and was executed by lethal injection in 2001. His alleged co-conspirator, Terry Nichols, was sentenced to life in prison after being convicted of manslaughter in a federal trial. The State of Oklahoma, not content with the federal disposition, resolved to try Nichols on 161 counts of first-degree capital murder. Brian Hermanson, like Seward before him, answered the call to defend a universally despised man.
I understand that right out of law school, you moved to Ponca City, Oklahoma, and have practiced as a solo for the better part of 27 years there. How did you come to land in Ponca City, and what led you to the decision to be a sole practitioner?
I moved to Ponca City directly from law school as a result of being recruited by a four-person firm and worked there until the firm dissolved some seven years later. At that time I went out on my own and stayed in Ponca City because it is a great place to live and practice law. I decided to become a sole practitioner because I wanted to have complete control over my practice setting and I felt that was the best way to accomplish that goal. I have been a sole practitioner now for about 20 years, even though part of that time I worked with a large group of lawyers on the Terry Nichols case.
What can you tell us about the nature of your practice and how it has evolved through the years?
My emphasis has always been on litigation. I enjoy being in the courtroom. It is because of that desire that I practice in areas that allow me to get into the courtroom as often as possible. Most of my practice is criminal law, personal injury, and family law. Like any small-town sole practitioner, I also do some probates, wills, and miscellaneous types of cases.
How was it that a solo from Ponca City was called upon to represent Terry Nichols, one of the state’s most infamous persons in perhaps the biggest case in the history of Oklahoma?
On December 29, 1997, I was working at my office when I received a call from the Board of the Oklahoma Indigent Defense System. They wanted to know whether I would consider representing either Timothy McVeigh or Terry Nichols if the State of Oklahoma decided to file state charges against them. I knew that Timothy McVeigh had already been convicted of the charges in federal court and had received a death sentence. I also knew that Terry Nichols had been convicted of manslaughter charges in federal court a few days prior to this phone call and was beginning to go into the penalty stage. I don’t know why they called me, but I told them that I would only be interested in representing Terry. It appeared that he would not get the death penalty in the federal case, and representing him would give me a chance to protect his life. I felt that McVeigh would be executed before any state trial. I later learned that the Oklahoma Indigent Defense System had received numerous requests from attorneys expressing their willingness to defend Terry, but they had decided to contact me because of other successes I have had in death penalty work and my reputation in the bar.
We have all seen the images of firefighters and paramedics caring for the injured and dead children in the moments after the explosion at the Murrah Federal Building. From all reports, the public anger was still torrid when the state decided to prosecute Nichols following his federal conviction. When you were considering whether or not to take on this case, what concerns did you have regarding the welfare and safety of you or your family?
I had many concerns. Death penalty work is always hard on the lawyer and his or her family. The case consumes you and the stress level is high. These cases also cause financial hardships and can have a long-term effect on your practice. My family readily accepted my role in leading the defense of Terry. They all met Terry and really believed that he needed the assistance of dedicated counsel. I had hoped that, in a case of this magnitude, the financial prob-lems associated with other cases would not appear. Unfortunately, I was wrong.
What ultimately led to your decision to handle the case?
I am a criminal defense lawyer who was asked to take on the most high-profile case in my state’s history. It was a case that will be in the history books. We had a defendant who was hated by most Oklahomans, and we would be trying it after many years of negative publicity and with all the public knowing that he had already been convicted in federal court of the same crime. After being promised that the case would be properly funded and assured that the defense would be given proper time to prepare and also being assured that I could pick my own defense team, I felt that it was a great honor to be selected to lead the team. I also felt that it was important that Terry have a lawyer who would be willing to shun the spotlight and to deal with this case on the merits.
Did you have to negotiate a fee?
I originally worked with the Oklahoma Indigent Defense System (OIDS) on a contract that provided the fee. After OIDS withdrew from the case because of a conflict, I negotiated with the Oklahoma County Court Fund for a budget and certain hourly rates for my attorneys and staff members. When the Oklahoma County Court Fund was taken out of the budget setting mix by the Oklahoma Supreme Court, I worked on the budget with the district judge involved with the case at that time.
What were your concerns about the obvious effects the case would have on your practice and the impacts upon your staff and clients?
I felt that I had to shut down my practice in order to properly represent my client. Michael Tigar’s federal defense team [from Nichols’ previous trial] gave me more than 600 banker boxes full of files when I started this case. By the time the case ended we had more than 1,200 banker boxes. Early in the case I calculated that if I took one minute to read each page of the FBI reports, it would take over 14 years to read all the reports. The task was going to be all consuming. I did worry whether I would have a practice to come back to after the case was over, but I felt that, in a small town, the people would know when I came back and that it would not take long to build the practice back to where it was.
Just how did you go about the planning process of litigating a case as enormous as the Terry Nichols case?
First we had to organize the files. We needed a better index of the files that would allow us to find documents quickly. Early on I met Richard Demarest, who was great at document control. I hired him to scan and organize the documents. We then went about setting up systems that would make the information very usable. As time went by, we continued to tweak the system to meet the many challenges that we were faced with in this case.
As a solo, what challenges did you have assembling and organizing a team?
Despite my diverse case experience, this case presented a vastly different challenge. I decided the team needed to be made up of some very different people. My legal assistant, Lennis Ailey, had been with me for over 20 years, and she was able to handle all the office management issues as well as serve as an exhibit control person in the courtroom. I had taught a seminar with Creekmore Wallace several months before, and I knew that he had tried some 25 death penalty cases in his life. I asked him to serve as my second chair. I knew a law professor from the University of Oklahoma, Rod Uphoff, who had done research in the areas of voir dire and ethics in the criminal setting, and I asked him to join us. I contacted Barbara Bergman, who taught law at the University of New Mexico, and hired her to write briefs and motions. She later joined Creek and me at the table during the trial to deal with expert witnesses. Then I was able to hire Mark Ernest, Theresa Duncan, and Susan Kane, rounding out our trial and investigative team. As I mentioned before, Richard Demarest was able to keep the documents under control and was in the courtroom with his computer to help with the presentation and finding of documents. Joe Guastaferro joined us to help with jury selection issues as well as the mitigation phase of the trial. The state was amazed at how well I was able to staff my team on the budget I was given.
Initially, what was your anticipated timeline for the prosecution of the case? How did this change over the course of the case?
The charges were filed in March 1999. We thought that it would take two or three years for the case to be completed. In fact the case took more than five years to complete, with the last hearing occurring in August 2004. The delays were caused by many events: the prosecution causing the recusal of the original examining magistrate, the DA being removed from the case because of his conduct, the FBI disclosing that they had failed to turn over all the documents, the Oklahoma County Court Fund failing to pay the defense claims for 14 months, and the Supreme Court having to twice order the court fund to pay our fees.
My sense was that there was intense media interest in coverage of the proceedings. How did you resolve to deal with the media requests? What kind of pressure was placed on you by the media to discuss the case?
I had been involved in high-profile criminal cases before, and I knew how aggressive the media could be. Each person on the defense team had written into their contract that all media contact would be through me. I refused to comment on any issue in the case, unless circumstances required that I respond to something that was occurring. I constantly received calls from national media reporters. I felt that it was critical to focus our attention on the defense of this matter and not on what should be said to the media. I also knew that we would be challenging the venue and the prejudice caused by the pretrial publicity, and I felt that we couldn’t complain about the publicity if we were causing it by our comments. In the end, the media respected our position and left us alone. I believe our silence also brought us credibility with the jury. Everyone in Oklahoma was used to comments from or about Timothy McVeigh, but Terry Nichols was seen as a very different type of person.
What about the prosecution? How did the district attorney deal with the press and media?
The trial team for the state, for the most part, stayed away from the media. The district attorney, both the original one and his successor when the first retired, were more prone to comment to the media. As I mentioned, the original DA was removed from the case, in part, for his comments to the media.
Can you give us a sense of the work effort required to prepare for this trial?
My team would work seven days a week. Usually we would get to work around six o’clock a.m. and have our first meeting before seven o’clock a.m. We would usually work until well after dark. On the weekends we were more likely to only put in eight hours on both Saturday and Sunday. I should note that my team members were only paid for 40 hours a week, even though we would work in excess of 80 hours most weeks.
How did technology help you in preparation?
It was critical. When we purchased our computers, I hired a firm from Austin, Texas, to set everything up. We bought the best computers we could buy, in that we knew they would have to handle a great deal of information and not become obsolete in a few years. We bought some high-end software that would allow us to search through more than 3 million documents in a matter of seconds. Our courtroom projection equipment and printing capabilities were also cutting edge. We always tried to make sure our technology would help us, not hurt us.
I understand that the process of this case was impaired by an unusual number of interlocutory appeals. One of these, I believe, included the right of your client to a decent haircut?
We took cases to the Oklahoma Court of Criminal Appeals and the Oklahoma Supreme Court on a frequent basis. We also filed one appeal with the U.S. Supreme Court. We appealed our examining magistrate’s ruling allowing cameras in the courtroom (we won). When the judge ruled that my wife could cut Terry’s hair (we couldn’t trust just anyone to be near him with a sharp instrument), the state appealed that ruling (we won). When the DA was removed, the state appealed his removal (we won). When the examining magistrate was recused, we appealed that ruling (we lost). We appealed the issue of double jeopardy all the way to the U.S. Supreme Court (we lost). When the Oklahoma County Court Fund Board ruled that our contract required us to continue to work on the case without additional pay after all funds initially appropriated ran out after the first two years, we appealed (we won). When the Oklahoma County Court Fund Board continued to refuse to follow the Oklahoma Supreme Court’s ruling about paying the defense team, we appealed (we won). And when the examining magistrate granted the media’s request to put the exhibits from the preliminary hearing on the Internet, we appealed (we won).
What were the biggest hardships on you and your team during the course of your representation?
It is hard to say what was the greatest hardship, but I think it was the stress of dealing with the enormity of the case with the close scrutiny by the media and the predisposition of the public. When it was over, we were all just totally worn out.
What considerations of trial bias/venue entered into the equation?
The Oklahoma City bombing had consumed Oklahoma since it happened. The facts were written about over and over, victims were seen at each anniversary and during any development in their lives. The number of newspaper articles, television programs, and news clips was just staggering. Our records of these media items filled a large portion of the courtroom during our request for the case to be dismissed because of the pretrial publicity and my client’s inability to get a fair trial. It was fair to say that there were not a lot of people pulling for us during this trial. On the flip side, this case was in the media so long that we had a feeling that the general public was growing weary of the case and felt that the state trial served no purpose. We hoped to gain some advantage with that sentiment.
What was your strategy regarding the preliminary hearing?
To learn as much about the state case as possible. While there had already been two federal trials concerning the Oklahoma City bombing, we felt that it was important to find out . . . what the witnesses were now saying about the case and to study how their testimony had changed.
What was your trial strategy? Did you have a twofold approach—winning outright as a primary strategy and avoiding the death penalty as a secondary goal?
There was no doubt that our primary goal was to save Terry’s life. Some members of our team felt that even that was impossible. With the number of deaths and the devastation involved, it was felt that an Oklahoma jury would have to be very strong not to give the death penalty. We did, however, want to win outright. As we picked the jury, it was clear to us that every juror on the case would know the details of the federal trials and would know that a jury had already convicted him of something in Denver. In spite of that, we still hoped that we would not have to go into the penalty phase.
Tell us about the trial. Were you satisfied with the process? What can you tell us about the result?
We were very concerned when the trial was moved from Oklahoma City to McAlester, Oklahoma. We knew that McAlester was a strong possibility because our trial judge was from McAlester. When we did our surveys for our change of venue motion, we did surveys of Oklahoma City, Tulsa, Muskogee, and McAlester. Our survey showed that McAlester had stronger opinions about this case and was more in favor of the death penalty than even Oklahoma City. We tried to get the case moved out of the State of Oklahoma, and when that was denied, we tried to get it moved to Tulsa because of better media coverage. In the end the trial judge moved it to his hometown. During the jury selection, we felt that our hands were somewhat tied by the procedure dictated by the court. We were, however, pleased with the panel that was seated. The evidence went on as we believed it would, and we became concerned when the jury found Terry guilty of all counts in just a few hours. To come back that quickly on 161 counts could not be a good sign. We got lucky in the penalty phase when we were able to get the trial judge to remove the foreman and another juror. Our evidence in the penalty phase was very strong. We had four victims of the bombing testify in Terry’s behalf. We were also able to severely limit the state’s evidence. We also had more than ten jailers from the federal and the state systems testify how Terry was a model prisoner. One jailer actually told the jury how Terry had counseled him on some family difficulties and discussed his faith. In the end, our belief that we had several strong jurors proved to be correct, as the jury hung on the issue of penalty, leaving the judge no other option but to give Terry life without parole.
What considerations did you have about the prospects of an appeal?
Because it was a hung jury, if we would have appealed and won, the state could have retried the case and again sought the death penalty. Seeing Terry already had life without parole in the federal system and all of those appeals had been exhausted, it did not make sense to appeal the state verdict.
How do you go about picking up the pieces of your life and work?
For a long time it was hard to work. The case has been over almost two years now, and my business is just now getting back to where it used to be prior to this case. I was able to use the slow time to make up for lost time with my family.
I understand you still have a relationship with Terry Nichols.
Terry and I still visit by the phone every couple of weeks. He still writes me notes and sends cards to my family. I have been out to Colorado twice since the trial to visit with him about different issues. I suspect Terry and I will continue to stay in touch over the years.
You have developed a strong opinion with regard to the death penalty. What observations would you like to share?
Once the government had the sentencing option of life without parole, there was no longer any justification for the death penalty. The government should never be in a position to say that “if you kill someone, I will kill you.” That is akin to “I will slap you if you slap someone else.” It sends the wrong message. The death penalty is supposed to be used only in the extraordinary case, and now we see it being used in ordinary murder cases. Also, it is often unfair to the poor or to minorities. Perhaps the greatest example of this can be found in Terry’s case. If Terry was a minority or if Terry did not have a huge budget for his defense team, do you think he would have avoided the death penalty? The prosecution would suggest in Terry’s case that if Terry Nichols, who supposedly helped kill over 167 people, doesn’t get the death penalty, then who should? That is my point exactly. No one should.
Thank you, Brian, for sharing your incredible experience with fellow solo, small firm, and general practice lawyers.
H. Stanley Riffle is a partner in the firm of Arenz Molter Macy & Riffle SC in Waukesha, Wisconsin, and is the Budget Officer of the ABA General Practice, Solo and Small Firm Division. He can be reached at email@example.com.