McVeigh Bomb Defense Rests After Assailing Key Witness

By Tom Kenworthy
Washington Post Staff Writer
Thursday, May 29, 1997; Page A041

Attorneys for Oklahoma City bombing defendant Timothy J. McVeigh concluded their truncated defense today with a final portrayal of the government's star witness as a crude, drug-abusing opportunist who proclaimed the innocence of his good friend McVeigh until faced with prosecution himself.

Using tape recordings of telephone conversations tapped by the FBI, defense attorneys characterized McVeigh's Army buddy, Michael Fortier, as angling in the days after the April 19, 1995, explosion for a lucrative book or movie contract.

"I can tell a fable, I can tell stories all day long," Fortier told his brother John nine days after a Ryder truck packed with homemade explosives ripped open the Alfred P. Murrah Federal Building, killing 168 people.

"The less I say now, the bigger the price will be later," Fortier, who faces a 23-year prison term for conspiracy, weapons charges and failing to report the alleged bombing conspiracy, said in another taped conversation.

Leaving the federal courthouse to prepare for closing arguments on Thursday, Stephen Jones, McVeigh's lead attorney, said, "I feel we've done everything we came to Denver to do. We've done our best."

But despite the closing attack on Fortier's credibility, legal specialists said McVeigh's defense team had done little to undermine the prosecution's case and failed even to provide an alibi for their client.

With their options for offering a broad range of conspiracy theories closed off by U.S. District Judge Richard P. Matsch, McVeigh's lawyers concluded their defense after 3 1/2 days and 25 witnesses.

The seven-man, five-woman jury could begin deliberating McVeigh's guilt or innocence in the worst case of domestic terrorism in U.S. history by late Thursday, after closing arguments and the judge's instructions to the anonymous panel.

McVeigh, a 29-year-old decorated veteran of the Persian Gulf War, could receive the death penalty if convicted on conspiracy and murder charges. If he is found guilty, the same jury will decide between capital punishment and life in prison during a separate penalty phase of the trial. McVeigh's co-defendant, Terry L. Nichols, will be tried separately later this year.

The charges against McVeigh include eight counts of murder in the deaths of eight federal law enforcement officers, four from the Secret Service, two from the Customs Service, one from the Drug Enforcement Administration and one from the Department of Housing and Urban Development. Other charges include conspiracy to use a weapon of mass destruction, use of a weapon of mass destruction, and destruction by explosive.

Before jury selection began March 31, Jones said, "We will concede no fact" to the prosecution. In his opening statement to the jury, he promised that "our evidence will be the rest of the story" that would establish not just a reasonable doubt about McVeigh's guilt but absolute proof of his innocence.

In presenting such a brief defense, legal specialists said, Jones left significant holes in "the rest of the story."

And after sending lawyers and investigators to the far corners of the world to scour for evidence of involvement of international terrorists, Jones was blocked by Matsch from presenting any witnesses who could back up his claims of a foreign conspiracy behind the bombing.

The charitable explanation for Jones's defense, said Denver attorney Andrew Cohen, is that the judge blocked him from presenting evidence of a conspiracy and from putting the FBI laboratory examiners on trial for alleged mishandling of bombing evidence. With those options foreclosed, Jones instead exploited holes in the government's case, such as the failure to place McVeigh at the bombing scene or detail where and how he built the bomb.

But the jury is more likely to focus on Jones's inability to prove McVeigh's innocence, Cohen said. "The message you get as a juror," he added, "is [that] this is the worst mass murder in American history. There's 168 dead, and you can only come up with four days of testimony? What about the alibi? If you're going to call a guy innocent, you'd better make your case."

To lawyers who have watched the case closely, Jones appeared to have scored some points:

• On Day One of the defense, a British pathologist with impeccable forensic credentials testified that a 169th victim died in the blast, and suggested he might have been the real bomber. The presence of a stray leg still unidentified two years after the explosion, said Thomas K. Marshall, "must represent another victim." Marshall, who investigated numerous terrorist bombings during a long career as pathologist in Northern Ireland, said it was not unheard of for a body to be nearly obliterated by a bomb detonating at close range.

• On the same day, two witnesses said they saw a Ryder truck parked at the Dreamland Motel in Junction City, Kan., on Easter Sunday, 1995. That is a full day before a man using the alias Robert Kling rented the truck experts have identified as the one that carried the 4,000-pound bomb that destroyed the Murrah building. According to the government's case, McVeigh, using the alias Kling, rented the Ryder truck used to carry the bomb on Monday, April 17, 1995.

• On Day Two of the defense, a waitress at a Denny's restaurant in Junction City said she saw McVeigh in town at about 4:30 p.m. on Easter Sunday. The account raised questions about the prosecution time line and other evidence alleging that McVeigh and Nichols drove to Oklahoma City that afternoon, in time for Nichols's truck to be captured by a video camera a block from the Murrah building.

• The defense later presented the testimony of whistleblower Frederic Whitehurst, a chemist whose complaints about the FBI's forensic laboratory prompted a critical investigation by the Justice Department inspector general's office. Whitehurst told jurors that a key piece of prosecution evidence -- ammonium nitrate crystals embedded on a small piece of paneling from the Ryder truck -- could not have survived a torrential downpour that soaked the crime scene the night of April 19, 1995. He also testified that anti-contamination procedures were so lax at the FBI lab at the time it was testing materials taken from the bombing scene that the Ryder truck part and other evidence, including McVeigh's clothing where explosive residue was found, could have been contaminated. On cross-examination, however, Whitehurst conceded he had no direct knowledge that any of that evidence was contaminated at the lab.

McVeigh's defense team suffered a setback last Friday, when what should have been their star witness, Daina Bradley, unexpectedly changed a story she had repeated for nearly two years.

A victim of the bombing who lost her two children, her mother and her right leg, Bradley had steadfastly maintained that she looked out a window of the Social Security office on the first floor of the Murrah building just before the bombing and saw a swarthy man get out of a Ryder truck. But on the witness stand, Bradley said she also saw a second man -- whom she had never mentioned in public before -- who had a light complexion. Bradley also testified that she had been treated for mental illness and that she had a poor memory.

Relatives of the victims of the bombing, dozens of whom have watched the proceedings over the past month, greeted the conclusion of the testimony with relief and expectation. Said Blanche Tomlin, whose son, Ricky Lee Tomlin, 46, died in the explosion: "He's guilty, and I'd like to punch the button to kill him 168 times."