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Legal Commentary

: Prawfs

What We Think of Family Men Who Land in the Pen...

By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel

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When I undertook the project of revising my dissertation on the impact of McVeigh's capital trial and execution on Oklahoma City family members and survivors into a book, I never thought of it as a creative project, per se.  I thought that it would be a pleasant experience, kind of like playing in the same sandbox that you've played in for the past several years, with the same toys.  It's still fun although it's familiar.  But I'm constantly surprised at how much the "book sandbox," and consequently the play experience, has changed--this playscape is much bigger, and has a lot more toys.  And playing with them has yielded insights that are more developed or even altogether different.  


One of the surprising new insights of this project is an awareness of how the family lives of Oklahoma City bombing defendants Tim McVeigh, Terry Nichols, and Michael Fortier affected family members' and survivors impressions of their characters.  Family members and survivors commented on the fact that McVeigh did not have a girlfriend, wife, or children (and in fact had not had any significant romantic relationships) whereas Nichols and Fortier both had been married and had children.  While having a family was not a mitigating factor per se?indeed, it meant that Nichols and Fortier had more to lose by participating in the bombing plot, and thus rendered their involvement even more inexplicable?it did serve as a proxy for the ability to engage in meaningful human relationships, and signified some capacity for normative emotional engagement.  In essence, involvement in family life made Nichols and Fortier seem more human than McVeigh.

While McVeigh did not date or really even have a girlfriend when he was in high school or after he joined the Army and was very nervous around women to the point of blushing, Nichols had fathered three children with two wives (one unborn at the time of the bombing), and Fortier had fathered two (again, one of which was unborn at the time of the bombing). The media reported that neighbors and acquaintances had described Nichols as an upstanding family man.  Nichols' family life was somewhat odd; he and his brother had married two sisters.  Nichols and his first wife were divorced after the birth of a son.  To find a second wife, Nichols traveled to the Philippines, where he allegedly met a young woman--really a teenager--named Marife.  Nichols' second marriage did not begin in a particularly auspicious manner; shortly after marrying Nichols, Marife returned to her Filipino boyfriend and shortly thereafter became pregnant.  Yet, Nichols accepted the child of that adulterous union as his own, and behaved, according to Marife?s family members, as a doting father towards his biological daughter Nicole.  

Other details, however, reveal a darker side to Nichols? family life.  He appears to have been somewhat misogynist; Marife once confirmed under cross-examination that she had heard her husband say that "Young ones [wives] were easier to train."  And acquaintances of the family in Herington, Kansas, where Nichols was living at the time of the bombing, described him as a reclusive patriarch who was controlling and did not allow his eldest son to socialize with other children.

Nichols? defense team chose to capitalize on the image of Nichols as a family man during the sentencing phase of his trial, portraying him as a loving father and husband who was led down the dark path of conspiracy by McVeigh.  Many of Nichols' family members--even his ex-wife--testified on his behalf, though it is questionable whether this testimony helped or hurt Nichols' case.  When his ex, Lana Padilla, testified for instance, she noted that he was a ?full-time father? who was "always, in his own soft-spoken way, teaching Josh."  Yet, under cross-examination, Padilla acknowledged that one of the things Nichols had  taught his son was how to make homemade bombs out of bottles.  At sentencing, Nichols reportedly cried as others told how he made flash cards and greeting cards for his children and family members from file folders and toothpaste that he was given in prison.

            Like Nichols, Michael Fortier was married with children. But unlike Nichols, who was described as quiet, Fortier was deemed happy-go-lucky.  Though Fortier had allegedly returned to his hometown of Kingman, Arizona to raise a family and start a business, he was sidetracked on the way by habitual use of crystal meth, marijuana, and LSD as well as by his involvement in the bombing.  Fortier pled guilty to reduced charges in exchange for his cooperation and testified before a federal grand jury against McVeigh and Nichols; his pregnant wife Lori was granted immunity from prosecution.  There was commentary to the effect that Fortier took this deal in order to preserve his family so that he could eventually be reunited with them when he was released from prison.  Though the media was largely quiet about Fortier?s fatherly side, numerous articles stated that being united with his family was the most important thing to him, and shortly before his release in 2006, his attorney was quoted as stating that Fortier was looking forward to spending time with his family and getting resettled with them in the witness protection program.  

Family members and survivors knew, of course, that the fact that Nichols and Fortier were husbands and fathers did not necessarily mean that they were successful in those roles and relationships.  Nichols likely had difficulties in maintaining romantic relationships with women, if his choice of a Filipino mail-order bride is any indication.  And it is difficult to believe that the Fortiers? marriage and familial relationships were not affected by the fact that both Michael and Lori were drug users, and habitually used marijuana, crystal meth, and LSD.

In fact, participants often drew conclusions about the offenders from the details of their family lives that emerged through media coverage.  One stated, for instance, that Nichols? buy-a-bride philosophy and lack of a work ethic marked him as an ?idiot? and ?loser.?  Yet, however imperfect their family lives, Nichols and Fortier were still seen as family men, and thus different from McVeigh.  These family relationships exposed entirely different sides of these offenders' natures; whereas McVeigh ahd been a loner and a drifter, Nichols and Fortier were emotionally attached to their wives and children and had been part of families and communities.  This enabled a different kind of character testimony--stories of family life.  Even in the face of danger signs such as mail-order brides and meth additions, even the bare presumption that Nichols and Fortier loved their families made their involvement in the bombing harder to understand.  As a loner, McVeigh had nothing to lose, but participants wondered what had  motivated Nichols and Fortier to imperil their family relationships by taking part in the bombing conspiracy.  

These ruminations in the Oklahoma City context bring to mind other examples of murderers who are also family men.  I believe there have been a few serial killers who led double lives, serving as pillars of their communities, loving husbands and devoted fathers at the same time as they were picking up and killing some type of vulnerable victim such as prostitutes or children and disposing of the evidence practically in their own backyards.  I'm thinking of killers such as Robert Hansen, John Wayne Gacy and Dennis Rader, the BTK Killer.  Of course, maintaining familial and community relationships seems at odds with a murderous lifestyle, rendering those who do so even more creepy in a way than other murderers who do not (or cannot?) engage in such relationships.  Of course, the family man role might be a facade, a social game.  But it makes us think twice about how we tend to stereotype the terrorists and serial killers who walk among us.


Full post as published by Prawfs on June 13, 2010 (boomark / email).

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