The defence began its first day in the penalty phase with a special hearing to ask the judge to set the sentence for Terry Nichols, rather than leave it to the jurers. Head lawyer, Michael Tigar, told the court that the prosecution's witnesses had improperly tried to influence the jury with their emotional testimony.

Judge Richard Matsch was forced to intervene several times during the three days of stories from the relatives of those who died in the bombing, but the judge refused the defence motion and ruled that the penalty phase should continue, meaning that Nichols could still be sentenced to death. The first defence witness called was his Filipino wife, Marife, who told the court how Nichols had been a good family man and had sent hand-made cards to their two children from prison, aimed at helping them to learn.