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Prosecution Rests; After 98 Witnesses in 20 Days, Nichols Starts Defense

Mackey/File
Prosecutor Larry Mackey.
(File Photo)
By Lois Romano and Tom Kenworthy
Washington Post Staff Writers
Wed., Dec. 3, 1997; Page A01

DENVER, Dec. 2 With a final story of survival and loss from a Marine officer, federal prosecutors today rested their case against Oklahoma City bombing suspect Terry L. Nichols, on trial here for the deadly terrorist attack that killed 168 people.

Minutes after Marine Capt. Matthew Cooper told a bloody tale of trying to rescue colleagues from the rubble of a collapsing nine-story office building, prosecutor Larry Mackey rose to say, "The United States rests its case."

Presenting 98 witnesses over 20 days, the government offered a federal jury what legal experts say was a convincing though not overwhelming case linking Nichols, 42, to the April 19, 1995, bombing of the Alfred P. Murrah Federal Building. Timothy J. McVeigh, Nichols's Army buddy, was convicted in June on identical murder and conspiracy charges, and sentenced to death for the crime.

Prosecutors traced an intricate web of circumstantial evidence tying Nichols to McVeigh, which they hope will be enough to trump the defense's strongest card: the compelling fact that Nichols was nowhere near Oklahoma City when McVeigh detonated a two-ton truck bomb in front of the Murrah building at the beginning of a sunny workday.

"If the jurors followed the prosecution's story, then Nichols is in big trouble," said Andrew Cohen, a Denver legal analyst who has observed both trials. "But the defense has already done a good job showing that there are inconsistencies and contradictions and those could be enough to hang a jury."

Promptly after the prosecution rested, Nichols's lead attorney, Michael Tigar, opened his case by sowing the seeds of reasonable doubt with witnesses who contradicted the government's view of events surrounding the crime. The defense also introduced the notion that McVeigh had an accomplice other than Nichols. A maid from the Dreamland Motel in Junction City, Kan., where McVeigh stayed in the days before the blast, testified that she saw a man there at the same time who resembled a police sketch of the suspect the FBI dubbed John Doe No. 2.

The government has since withdrawn the arrest warrant for John Doe No. 2 and now maintains that no such suspect exists.

Sources close to the case say that Nichols will not likely take the stand in his own defense. Instead, Tigar will probably call Nichols's wife, Marife, to offer an alternative scenario, perhaps suggesting that Nichols may have been duped by his friend into unwittingly helping with the conspiracy.

But in its month-long and often tedious case, prosecutors sought to prove that Nichols knew exactly what McVeigh was up to and that the friends together acquired ingredients for their homemade bomb, hid them in storage lockers rented under aliases, and then assembled them at a state fishing park in rural Kansas.

"There is a huge combination of circumstances that connect Nichols to McVeigh just as there was a huge combination of circumstances connecting McVeigh to the bombing," said Christopher Mueller, a professor of law at the University of Colorado who is following the trial.

Still, legal experts agree that lacking evidence and eye witnesses to directly link Nichols to the crime, the panel of seven men of five women will have to painstakingly piece the case together to arrive at a conviction.

At first, prosecutors attempted to follow the script from the successful McVeigh case, when they effectively used the highly emotional testimony of victims that often brought McVeigh jurors to tears. But prosecutors quickly retreated from that strategy after repeated challenges from the defense, which claimed the testimony was prejudicial. Even today, when Matthew Cooper testified in full-dress uniform about his final moments in the Murrah building after the 4,000-pound bomb ripped it open, he was brief and matter-of-fact.

When Cooper testified at the McVeigh trial, he choked back tears as he graphically described the mayhem and horror of April 19.

Absent too was a clear picture of motive. In the McVeigh case, vitriolic writings and firsthand witnesses showed that he had long planned an act of violence to avenge the government's botched assault on the Branch Davidian religious compound near Waco, Tex.

Although prosecutors tried to show that Nichols too was angry about Waco, evidence of his alleged motive was not nearly as strong.

In addition, prosecutors lacked the kind of damning evidence that they had in the McVeigh case, such as explosive residue on McVeigh's clothing and witnesses who positively identified him as the man who rented the Ryder truck two days before the blast.

The government's star witness, Michael Fortier, also appeared far less effective at this trial. For one, Fortier changed his testimony from the McVeigh trial to suggest he did not know who McVeigh was referring to when he said that "they" were planning to take offensive action against the government.

And Nichols attorney Tigar skillfully portrayed Fortier -- who pleaded to lesser charges in exchange for his testimony -- as a liar and drug user who would say anything to save his own neck.

Key elements of the prosecution case included:

Testimony linking Nichols, using the alias Mike Havens, to the purchase of two tons of ammonium nitrate fertilizer from a Kansas farm cooperative. A receipt with McVeigh's fingerprint on it was found at Nichols's Herington, Kan., home. But co-op employees could not identify Nichols as the purchaser.

Evidence tying Nichols to the burglary of a Kansas rock quarry in which explosives were stolen. Blasting caps matching those from the quarry were found in Nichols's home.

A letter Nichols wrote to McVeigh in which he instructed his friend, "Your [sic] on your own. Go for it!! As far as heat - none that I know."

Testimony alleging that Nichols said the government needed to be overthrown.

Phone records from a debit card allegedly used by both men to locate fertilizer, oil and barrels, all components used to build the bomb.

Weapons recovered at Nichols's home belonging to Arkansas gun dealer Roger Moore, whom prosecutors say Nichols robbed to finance the conspiracy.

The heart of the government's case was nine hours of interviews Nichols voluntarily gave the FBI two days after the bombing. Prosecutors claimed Nichols repeatedly lied about his contacts with McVeigh, his knowledge of bomb-making and his actions in the critical days preceding the bombing.

Nichols told the FBI he had not seen McVeigh between the late fall or early winter and the Sunday before the bombing.

The government produced an oil filter receipt bearing the fingerprints of both men indicating that they had been together on April 15. The government alleged that the next day, Easter Sunday, Nichols caravaned to Oklahoma City with his friend so McVeigh could drop off the getaway car three days before he blew up the building.

© Copyright 1997 The Washington Post Company

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