On Tuesday, the penalty phase begins in the trial of convicted bomber Dzhokhar Tsarnaev, and there's a lasting moral weight jurors in major terrorism cases carry with them.
There are few people who know firsthand what the Boston jurors are experiencing — these cases are exceedingly rare. Since 1993, prosecutors have sought the death penalty 14 times in federal terrorism cases. Jurors have handed down the sentence just once.
On April 19, 1995, 26-year-old Timothy McVeigh parked a rented Ryder truck in front of the Alfred P. Murrah Federal Building in downtown Oklahoma City. It was packed with 5,000 pounds of homemade explosives. At 9:02 a.m., the truck exploded. One hundred sixty-eight people died, including 19 children, most of whom were at a daycare on the second floor.
Timothy McVeigh was tried in 1997. Proceedings were moved from Oklahoma to Denver. There, Mike Leeper was named Juror No. 5.
When asked if being a member of that jury changed him in any way, Leeper says, "Well, according to my spouse it did." He laughs, but sadly.
A Vietnam veteran, he's man who holds sacrosanct the request to serve. He was 47 when he was called to jury duty in 1997. He heard testimony from 168 witnesses, including from an Army captain who had been thrown 12 feet in the air by the explosion and through a wall, and a credit union CEO who testified that only half her employees survived the explosion, and that "everything else was gone."
Leeper says that "every day," it was hard to hear all the things he had to hear.
"I've been through war," he says, taking a long pause. "I really don't want to talk about it. And I didn't think I'd ever have to be exposed to the things I was exposed to in that courtroom. And I hope I never have to go through that again, and I feel really sad for those people in Boston. They're having to go through something similar."
After 22 days of testimony, the McVeigh jury began its deliberations.
When the 12 jurors first went into the jury room, it was the first time they were left alone without a Marshal.
"We were actually able to kind of meet and greet, which we hadn't really been able to do prior to that," Leeper says. "[We] needed to get to know our fellow jury members. [It was] just a relief of the fact that we were now able to visit. So, we worked through that fairly quickly and then got on to the — how we were going to do this, how we were going to conduct ourselves?"
They went through each of the 11 counts McVeigh faced, from murder to conspiracy to using a weapon of mass destruction.
It took them 23 hours over four days. On June 2, 1997, they reached their unanimous verdict.
"Mr. McVeigh made eye contact with certain jurors on a daily basis. However, he did not make eye contact with me," Leeper recalls. "I looked at him daily, as to whether there was an emotion involved, a reaction to testimonies, reaction to arguments presented by both sides. So, you would look for any kind of reaction. Never saw any."
Leeper came to the conclusion that McVeigh's actions were "unforgivable."
"His thought process and his actions ended up being against people that really weren't targeted — be it the daycare, the social security, the innocent people of Oklahoma City."
And it's here that observers point to further similarities between the McVeigh and Tsarnaev cases. Both are young men. Both object to the actions of the U.S. government. McVeigh had been outraged by the botched FBI raid on the Branch Davidian compound in Waco, Texas. Tsarnaev scrawled inside the Watertown boat, "The U.S. government is killing our innocent civilians...we Muslims are one body, you hurt one, you hurt us all." And both resorted to violence that killed and injured innocent bystanders.
After reaching their verdict, Leeper and the McVeigh jury were tasked with the difficult decision facing the Tsarnaev jury now: to weigh the defendant's life in their hands. The McVeigh jury heard six days of testimony in the penalty phase of the trial, but Leeper says there aren't particular moments that stand out to him from those days.
"It's the same as the trial," he says. "We had to listen to a lot of graphic stories by survivors, family members."
Sharon Coyne talked about the agony she felt after having to give up the search for her 14-month-old daughter. "I could picture her just saying, 'Mama,' " Coyne said. "I felt so guilty leaving this place."
"I've been through war...And I didn't think I'd ever have to be exposed to the things I was exposed to in that courtroom. I hope I never have to go through that again, and I feel really sad for those people in Boston."Mike Leeper
The jurors also heard from another parent: McVeigh's mother, Mildred Frazer, who wept as she said, "Yes, I am pleading for my son. He is a human being, just as we all are. You must make this very difficult decision on my son's life or death, and I hope and pray that God helps you make the right one."
Leeper says, as painful as it was, he and his fellow jurors did their best to stay focused.
"We were just dealing with Mr. McVeigh and trying to figure out the reasons, the whys, the — what would make a person do that?"
Then, the jurors went back into the jury room to make the decision about what punishment to give to McVeigh. The 12 of them started that discussion by looking at their options and deciding, as a group: Would they feel comfortable with whatever decision they reached?
"Here were a wide variety of just citizens, and having to make probably one of the most difficult decisions you have to make in your life. But if you believe in the system, and you realize, you know, God forbid, you're in the chair and asking somebody else to make a decision regarding your actions, are you really being treated fairly and taken seriously for those things that you've done?"
Leeper and his fellow jurors deliberated for 11 hours. They had to make a profound decision.
"I think the things that went on behind closed doors are best left behind closed doors," he says. "We were very, in general I think — almost to a person — proud of the way we conducted ourselves, but the things that happened inside the jury room, I think that's where they should stay."
Leeper says he was "comfortable" with his decision, and with the evidence and testimony presented to him and his fellow jurors.
On June 13, 1997, jurors handed over their decision: McVeigh deserved the death penalty. But of course, though Leeper says he was "glad it was done," nearly 20 years later, he knows the case was not done with him. Leeper says the media hounded him after the trial. Testimony he heard haunted him.
"None of us asked to be there," he says. "Goodness, out of 1,000 people polled in the quarter of Colorado, for 22 of us and then 12 to be chosen, through no faults of our own but to honor the system that exists...[we] wanted to hopefully conduct ourselves to where...the system can work, and can work perhaps better than most, and that we all should be proud of America."
Leeper returned to this theme again and again — that, as a juror, his duty was to do his part to show that the system works. But what does it mean that the power to punish is in the hands of 12 average citizens? That question lies at the heart of the American criminal justice system.
Ironically, McVeigh himself pointed to the moral implications of that question two months after Leeper and his fellow jurors had handed McVeigh the death penalty.
On August 14, 1997, in the final formal proceedings of the trial, Judge Richard Matsch asked McVeigh if he had a statement for the court. McVeigh had not uttered one word during the entirety of his trial. But on this day, he quoted famed Massachusetts lawyer and Supreme Court Justice Louis Brandeis.
In a 1928 dissenting opinion, Brandeis wrote, "Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example."
Leeper doesn't want to respond to McVeigh's use of Brandeis' words. Instead, Leeper quietly, proudly, stands by the example he and his fellow jurors set, the way they conducted themselves and how they bore the burden of the decision they were asked to make regardless of what it cost them in their own lives.
"I think the ongoing attention that is garnered by some of us, at what point do you feel like you're just John Q. Public, just another citizen? I guess it's just never going to go away, 20 years later."
When asked what he would tell the jurors sitting in the Tsarnaev trial, Leeper encourages them to be confident in their decision.
"I hope you're proud of the fact that you got to serve," he says, "and I hope that this life-changing event that you've been asked upon and done, you can live with for the rest of your life."
Leeper says there's no joy in the decision he made, but he's "proud, confident and accepting."
Timothy McVeigh was put to death by lethal injection in Terra Haute, Indiana, on June 11, 2001. It was the last time a federal terrorism case ended with the death penalty.
Testimony in the penalty phase in the trial of Dzhokhar Tsarnaev begins April 21.
Mike Leeper, Denver-based real estate attorney and Juror No. 5 in the trial of Timothy McVeigh.
This segment aired on April 15, 2015.