Next stop for McVeigh: Judgment day

Reasonable doubt? Probably not.

Published May 29, 1997 7:00PM (EDT)

"We've done our best," said Timothy McVeigh's attorney after resting the defense case in just three-and-a-half days. Whether the "best" was good enough will be decided by the jury, which is likely to begin deliberations on Thursday.

As expected, McVeigh's lawyers attempted to discredit the government's star witness, Michael Fortier, who had testified about McVeigh's alleged role in the April 19, 1995, bombing of the Oklahoma City federal building that killed 168 people. They also sought to call into question the reliability of the FBI's forensic investigation, but were thwarted by Judge Richard Matsch in raising the specter of a neo-Nazi conspiracy behind the bombing.

Did the defense, in its truncated presentation, manage to raise "reasonable doubt" about McVeigh's alleged crime? Salon spoke with Mimi Wesson, a former assistant U.S. attorney and death penalty expert who currently teaches law at the University of Colorado at Boulder.

By most accounts, the prosecution's case was seamless. Did the defense manage to make any tears in it?

The main thing they tried to suggest was that McVeigh was not alone. They elicited that through witnesses who testified they saw McVeigh with someone else, or that they saw someone else at places connected to the bombing. But I must say that rather puzzled me, since it is no defense for McVeigh that he acted with a confederate even if that confederate cannot be identified and has not been apprehended and cannot be prosecuted.

But might the suggestion that he had an accomplice be useful for McVeigh later -- if he's convicted, the jurors might be less likely to impose the death penalty if they thought someone else is involved?

Yes, and it may be that's what the defense was aiming at. There are what are called "mitigating circumstances" in the federal death penalty statute.

And what might those be for McVeigh?

There are two mitigating factors that the defense may have had their eyes on. One is what's called "minor participation," meaning the defendant's participation in the crime was relatively minor, relative to someone else. That may be where the "John Doe No. 2" comes in. The second mitigating circumstance is that there is another person who bears equal responsibility for the crime but who will not be punished by death. So "John Doe No. 2" may be useful if the defense can argue that there's someone still out there, not identified, not apprehended, not charged, not prosecuted or sentenced to death but who's equally responsible as Timothy McVeigh.

It could have been the person whose severed leg was found in the ruins.

Yes, but that rather puzzles me, too. The defense brought it up at the beginning of their case, but it's hard for me to see how it helps McVeigh. If an accomplice was blown up in the blast, he was in a sense punished by death, and so that mitigating sentence is less likely to apply than if he were still alive. It seems to me that "John Doe No. 2" is much more useful to the defense if he's still alive. It didn't seem to me that the defense understood that.

The defense also seemed surprised by Daina Bradley, who testified that she saw two men -- including one who could have been McVeigh -- get out of the Ryder truck by the federal building. She had earlier said she saw only one olive-skinned man who bore no resemblance to McVeigh.

The surprise was that she changed her story just a few days before testifying. But the defense knew it -- it wasn't astonishing, as the press claimed. Even so, that must have been very dispiriting for them. They'd put a lot of stock in her, but she turned out to be someone who could not disprove that Timothy McVeigh was involved. As it happened she proved to be the only witness called by either side who did say she saw someone who looked like McVeigh at the truck a few minutes before the blast. It's ironic, I guess.

Did the defense have any better success at discrediting the scientific evidence?

The member of the defense team who handled this part, Christopher Tritico, was very skilled, very competent. He did as good a job as could have been done, but the attack was fairly predictable and whether it will be enough to cause the jurors to discredit that evidence of course we can't know.

What about the so-called FBI whistle-blower, Frederick Whitehurst, who expressed doubt on the way some of the forensic evidence was analyzed?

I can only give you my own reaction, and that is that Whitehurst came over as rather a prig, a person who has his own fastidious, rather fussy idea about how things ought to be done, who is extremely inflexible and intolerant about things being done any other way. I myself was not persuaded that the shortcomings he pointed out in the FBI lab were enough to cast serious doubt on the government scientific testimony. The other thing is, he was in a rather embarrassing position, as it was plain that he admired -- almost worshipped -- Steve Burmeister, the principal prosecution witness on the scientific evidence, and admitted that he would never suspect Burmeister of participating in any scientific enterprise that was not up to his own standards. So I think the prosecution was able to dilute quite a bit of the impact of Whitehurst's testimony during cross-examination.

As a final flourish, McVeigh's attorneys played a wiretap tape of Michael Fortier talking about the money, the "cool mill," he could make spinning a story about McVeigh. How damaging might that be?

It's always difficult to know what a jury is thinking. But Fortier's boasting about the money he was going to make with the "fable" he was going to spin was not new. It had all been brought out in previous cross-examination by the defense team. So it's not new information for the jury. His voice -- if jurors thought he sounded particularly cocky or obnoxious -- might have some effect. But substantively that's not the main point. The thing about the Fortiers is not so much that we believe them because they're truthful -- we know they were liars about many things -- but in the end I think you believe them because their testimony about McVeigh is corroborated at almost every point by other testimony.

Do you think that the speed with which the defense presented their case conveyed the message that they had given up?

I don't know what it would convey to jurors. I assume the defense rested because they didn't have anything else. It's better to rest than to put on unconvincing or impeachable witnesses.

If McVeigh is found guilty, how soon will he be sentenced?

It's up to Judge Matsch's discretion. He can give both sides a recess to allow them to prepare, but I think he'd be reluctant to give them much time because the longer the recess the more possible it is the jury will be exposed to something that will damage its impartiality.

What factors would you expect to be brought up during the penalty phase?

We know the government is going to continue its parade of victims through the courtroom. They did such a tremendously effective case of arousing people's emotions during the main part of the case, I don't know how much more they will think is necessary. They can also put on relatives of the 168 people who died, and they could if they wanted to put on people who sustained property damage. I don't think they will want to impose too much more on the jurors, but I would expect some more.

And what mitigating factors might the defense raise, apart from the unpunished accomplice scenario?

Extreme youth, acting under duress, mental impairment ...

Including stress or trauma caused by his Gulf War experience?

Yes, it's possible. Or anything to help the argument that the death penalty is outweighed by his previous good conduct -- like testimony from his family about good things that he's done in his life. Anything that tends to suggest that he's not a despicable hopeless character with no human value at all. It can go on and on, depending upon what the defense wants to do. This whole penalty phase could be longer than the main trial!

If McVeigh is sentenced to death, how will he be executed?

There's a facility being built in Terre Haute, Ind. And there are recommendations from the Justice Department on how this should be done. It would be by lethal injection.

By Ros Davidson

Ros Davidson is a frequent contributor to Salon.

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