“We have lost one of the best among us, but each day when we do something good for a client, we are renewing our connection with Rob.”
Death penalty attorney Richard Burr wrote those words to the defense community in late September, shortly after his close friend, defense attorney Rob Nigh, died at the age of 57.
Burr and Nigh were two of the three attorneys who initially represented Timothy McVeigh in his murder trial for the bombing of the Alfred P. Murrah Federal Building in Oklahoma City on April 19, 1995.
“We immediately liked each other. We worked as closely as people can when they represent someone,” Burr says. “We had an immediate connection on very deep levels as lawyers. We had great respect for each other’s skills, insight, abilities. We developed a very deep friendship very quickly.”
To call it a huge case would be an understatement. McVeigh was accused of loading the back of a Ryder truck with 5,000 pounds of explosives, driving it to the front of the Murrah Federal Building, where there was a daycare center on the second floor, and detonating the bomb. It destroyed half of the building and killed 168 people, 19 of them children, and injured 684 others. It is still the worst act of domestic terrorism perpetrated in U.S. history.
“When I first heard of the bombing, my initial instinct was whoever represents this young man has got to figure out how to relate to all these people who were hurt,” Burr says. “When I was asked to come on to the case, I carried that with me. But many of the other members of the team were ambivalent. Their experience was that the defense is an adversary of the victims. Rob was the only one who felt the same way I did. We saw the magnitude of the loss, and decided we had to figure out a way to respond as human beings, and not be restricted to the traditional role of defense lawyers.”
To help them figure out how to “work within the framework of representing their client, and being good advocates for him, while continuing to be respectful of the victims and victims’ family members,” Burr and Nigh invited Howard Zehr, “the grandfather of restorative justice,” to conduct a three-day colloquium for the attorneys. On the Eastern Mennonite University website where Zehr is a co-director of the Zehr Institute for Restorative Justice, he is described as “an early advocate of making the needs of victims central to the practice of restorative justice.”
It was a theme that resonated deeply with Nigh, Burr says, because of his listening skills, and his innate kindness – he had the “ability to listen without judgment. That’s a hard skill to develop for any of us,” he says. “When most of us are listening, we’re thinking about what we want to say. Rob didn’t do that. He just listened, to what was being said and what wasn’t being said. That act of listening without judgment and listening deeply is one of the most compassionate things we can do for each other. Rob was the only non-death penalty person to be a part of the experience. The rest of us were death penalty attorneys who were shaped by our experiences, and while Rob didn’t have that, he still came to the case with the same instincts we had.”
From the time of McVeigh’s arrest shortly after the bombing, until his conviction and death sentence two years later, the case consumed the defense team. None more so than Nigh.
“Rob became the person closest to Tim [McVeigh],” Burr says. “He was the one Tim felt closest to. He was the one Tim wanted to have with him in the execution chamber. And he was the one who took care of his remains after the execution.”
Nigh and Burr and Mandy Welch (who was part of the original defense team) appealed McVeigh’s conviction to the Tenth Circuit in June 1997, but were denied. But they continued to visit McVeigh on death row. “We were both very connected with Tim, and each other during that time,” Burr says.
They returned to the case just before his execution after the government found 30 boxes of investigative materials that should have been turned over to the defense, but their efforts to have the execution halted failed. At McVeigh’s execution in June 2001, Nigh was in the execution chamber and Burr was outside with the press. After it was over, Burr says Nigh came out, and “made an eloquent statement.” Both continued to reach out to the survivors and the victims’ family members, “and tried to find some meaning in what had happened.”
Burr, and two of the other defense attorneys, including Welch and Maurie Levin, tried to find that meaning by again working with Zehr and his then-graduate student Tammy Krause, who had done victim outreach for the defense team, by meeting with about 25 survivors of the bombing about a year after the trial had ended. Burr says the victims asked questions about McVeigh and “We answered them as best we could. There was a positive spirit all around, all of us trying to learn from and with each other.”
From that experience came the practice of Defense-Initiated Victim Outreach (DIVO), which Burr, Zehr, and Krause began using in federal capital cases. DIVO eventually became part of many state cases, and Burr says it’s now a “fairly routine practice in defending capital cases at trial.”
Nigh and Burr never worked together again after the McVeigh trial. Burr went on to become a member of the Federal Death Penalty Resource Council, often recommending Nigh for federal death penalty cases. He is now a death penalty attorney in Texas. Nigh eventually became Tulsa County’s Chief Public Defender in 2014 before stepping down after two-and-a-half years to return to his previous law firm, and deal with health issues. He died September 24th.
The bond Nigh and Burr forged during the McVeigh trial endured. “We never lost touch,” Burr says. “We talked by phone four or five times a year. We just remained very close friends. It feels like he’s still with me. He’s been with me for 22 years and I don’t see that that will change. We became a part of each other.”
