SALON Daily Clicks: Newsreal

In the Oklahoma City bombing trial, the prosecution did what it had to do.

Published May 22, 1997 7:00PM (EDT)

the defense opened Thursday in the murder-conspiracy trial of Timothy McVeigh and by all accounts faces quite an uphill battle on behalf of its client. The prosecution ended its case the previous day, having called more than 135 witnesses in 19 days, ending with the testimony of a survivor of the April 19, 1995, bombing of the Alfred P. Murrah Federal Building in Oklahoma City, which killed 168 people.

How well did the prosecution perform? Salon talked with Christopher Mueller, professor of law at the University of Colorado at Boulder. Mueller is the co-author of the five-volume "Federal Evidence," the authoritative text on evidence procedure, and teaches evidence refresher courses to judges across the nation.

How would you assess the prosecution's case against McVeigh?

I think they've demonstrated almost ironclad proof that McVeigh was intimately involved in the bombing.

How so?

Primarily through two crucial pieces of evidence. The first is the axle which is known to have come from the truck that carried the bomb. That axle, which was immediately traced to Eldon Elliot's Ryder truck agency in Junction City, Kan., was shown without any doubt to have been from the truck that was rented by a Robert Kling. The second crucial thing the government showed is that Robert Kling is Timothy McVeigh.

Based on testimony from the Fortiers.

Right. Lori and Michael Fortier both testified that Tim McVeigh obtained a phony driver's license blank form and Lori says he made it out in the name of Robert Kling. Kling rented the truck in Junction City. Other witnesses testified that McVeigh was in Junction City at the crucial period before the bombing.

And those witnesses made the Kling-McVeigh link even tighter?

Eldon Elliott, the owner of the truck rental agency, identified the man who picked up the truck in the name Robert Kling as Tim McVeigh. Tom Manning, who sold McVeigh the Mercury, said McVeigh disappeared for 15 minutes, at the point in time when the person who turned out to be Robert Kling reserved the truck. And Eric McGown, the son of the proprietor of the Dreamland Motel, identifies Tim McVeigh as the person who stayed there.

You use the term "ironclad." In the O.J. Simpson case, the prosecution had seemingly ironclad evidence relating to blood and DNA, and look what happened there.

The jury in the Simpson case let everybody down by failing to deliberate on the evidence. They gave something like 265 days worth of trial testimony essentially three hours worth of thought. That's proof enough that they didn't take the duty of deliberation as seriously as they should have.

But they'll take the prosecution's equally detailed case more seriously this time?

It's a very strong case. And whereas the Simpson trial meandered and was filled with diversions, misbehavior by lawyers and poor management by the trial judge, the Oklahoma City bombing trial has involved first-rate, efficient, carefully prepared lawyering by both the prosecution team and the defense team and the able and firm-handed guidance by an extraordinary trial judge, Judge Richard Matsch. Also, there have not been cameras in the courtroom, so distractions have been minimized.

Did the prosecution make any significant mistakes?

No. I think they put on an absolutely first-rate case. It's hard to improve on what they've done.

But their key witness, Michael Fortier, is a methamphetamine abuser who cut a major deal with the prosecution. Are the jurors going to find him credible?

Jurors would be right to feel some healthy skepticism and to look for key points where Fortier might have stretched a point, if not lied, to help the government. There were many of those points in the testimony of both Fortiers, but to my ear they had the ring of truth. Also, cutting deals is commonplace in the federal system, particularly with crimes involving more than one person. Necessarily, the government has to depend for a good bit of its testimony on people who are in some way connected with the case; and the only way the government can ensure that they testify is by pressure and promises of more favorable treatment. It goes on every day.

One of the prosecution witnesses, an FBI fingerprint technician, testified that McVeigh's fingerprints have not been found on key pieces of evidence, including the key and rental agreement for the Ryder truck. Doesn't that weaken the prosecution's case?

No. Really not. They have McVeigh's prints on the purchase slip, the sales slip, that was found at (alleged accomplice Terry) Nichols' house for ammonium nitrate. It would have been wonderful if they'd found his prints on the rental agreement, but they got a signature and that's just about as good. And they've got a positive ID from the guy who's standing right across the counter from him when he took it. You don't always leave prints everywhere, and it's Kansas and it's dry, there's not quite as much moisture on the palm, and the paper doesn't always show the prints. I don't think it hurts much.

How did the forensics and scientific evidence stand up, in view of the fact that much of it was analyzed by the FBI? The judge thwarted defense attempts to raise broader questions about the FBI crime lab.

The testimony of Steve Burmeister (a forensic chemist from the FBI lab in Washington, D.C.) that he found residue from the bomb on the clothing and in the earplugs of Tim McVeigh was pretty solid. And Burmeister, alone among the FBI agents who worked on the lab and scientific part of this case, escaped any criticism for his role in the much-criticized FBI lab report. The government showed a lot of strategic sense in relying on him and not any of the other experts.

But Burmeister also didn't find bomb residue in the storage locker in Kansas where he allegedly stashed bomb ingredients. What about that?

Of course one would have liked to have found bomb residue there. It's significant, but not catastrophic. They also called Linda Jones, an English bomb expert who knows a good deal from her experience analyzing Irish Republican Army attacks in England. She too is untainted by the FBI report.

What then do you think the highlight of the defense will be?

They are going to highlight two or three points. First, the Fortiers are crass people motivated both by the possibility of selling their story and by the temptation of winning Michael Fortier's early release from prison. Also, they used crystal meth on a regular basis. Michael even testified he's forgotten how much he used. So their perceptions and memories are distorted. And in any event they are not to be trusted -- after all, Michael Fortier is a common thief as well as a drug user.

Secondly, they will highlight the negatives. There are no eyewitnesses who place McVeigh on the scene at the time of the bombing. There are no eyewitnesses that show that McVeigh actually ignited the bomb. No eyewitnesses actually saw him construct the bomb. It looks as if the defense will call a survivor, Dana Bradley, who was in the building when it was bombed and who will say that she looked outside, just before, and saw a person who was not Tim McVeigh get out of the Ryder truck.

Third, they will focus on this unknown person, who the government even admits or admitted exists, who was around the truck at the time of the bombing. It's also possible that the defense will call ATF agent Carol Howe, who apparently filed reports that she had talked with two men in Elohim City, Okla. -- one of those extremist encampments -- and told her they were interested in an attack on a federal building in Oklahoma City. The judge might allow that or he might exclude it as a red herring.

I think Stephen Jones (McVeigh's attorney) hopes that will provide enough doubt, if not to acquit McVeigh -- I don't think Jones really thinks McVeigh will be acquitted -- so that the jury would be reluctant to impose the death penalty on McVeigh.

Do you think he'll get the death penalty?

I wouldn't want to speculate. It's a Colorado jury and there hasn't been an execution in Colorado since some time in the '60s.

By Ros Davidson

Ros Davidson is a frequent contributor to Salon.

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