Setting the Stage: Timothy McVeigh/Oklahoma City Bombing Trial
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JIM LEHRER: Now three perspectives on the trial. Larry Pozner is first vice president of the National Association of Criminal Defense Lawyers and a practicing lawyer in Denver. Jim Fleissner is a former federal prosecutor, and he’s worked with two of the prosecutors in the McVeigh case. He’s currently a professor at the Mercer University School of Law in Atlanta. Patrick Cole of Time Magazine has been covering this story since the bombing and has interviewed Timothy McVeigh. Mr. Fleissner, what appears to be the crux of the government’s case against McVeigh?
JIM FLEISSNER, Former Federal Prosecutor: (San Francisco) The crux of the government’s case is the way that the various pieces of the government’s case fit together. The government’s case is a mosaic made of various pieces. The government, I think, is going to try its case by methodically putting the pieces in item by item and witness by witness. There will be evidence of eyewitnesses, eight or nine, that will link McVeigh and/or Nichols to the bomb plot. There will be forensic evidence of bomb residue found on McVeigh’s clothes. There will be evidence of an insider, Michael Fortier, who will talk about how McVeigh confided in him about the bomb plot. There will be a variety of other evidence. And now all of this will be attacked by the defense. And the defense has some ammunition to use against the government. But the key is how the mosaic fits together and how the pieces relate to each other and reinforce each other to point to the guilt of Timothy McVeigh.
JIM LEHRER: Do they evidence that places McVeigh at the bombing site?
JIM FLEISSNER: They have one witness who they may or may not call who can describe a person of McVeigh’s description, cannot do a positive identification, and can describe his clothes. They have another eyewitness, Fred Skirdloff, who was a gas station attendant who will testify that he saw McVeigh at a gas station off of I-35, he was alone, and he was in the Ryder truck.
JIM LEHRER: All right. So to recap here, there’s not going to be one dramatic piece of evidence that the prosecution has. It’s a whole series of things that they hope add up to, hey, this guy did it, right?
JIM FLEISSNER: That’s correct.
JIM LEHRER: Mr. Pozner, what then will the defense do about that?
LARRY POZNER, Criminal Defense Lawyer: (Denver) It will do what the defense has done for 200 years. It will ask the jury, are you convinced beyond a reasonable doubt, and in doing that it will pick apart the FBI crime lab analysis which is very suspect now, in light of the draft report showing irregularities in testing and a bias in favor of the government. The defense will go at the alleged eyewitnesses to the rental of a Ryder truck. After all, for a long time America was hunting all over for John Doe No. 2. Now we’re told, oops, forget that, there is no John Doe No. 2. They’ll go at Michael Fortier, saying, you were in deep trouble and made a deal to save your own life. And those will be the key spots for the cross-examination. Remember, they do not have to say to the jury we can prove beyond a reasonable doubt the innocence of our client. The Constitution doesn’t demand that; only that the jury understand, after hearing all the evidence, they have a doubt based on reason and common sense as to the guilt of Mr. McVeigh.
JIM LEHRER: But as a practical matter, Mr. Pozner, does the defense have a kind of non-smoking gun–in other words, hey, McVeigh was in Seattle that day or something that like that–going for them? Is it based on–if this man’s going to walk, it’s going to have based on their ability to tear down the government’s case?
LARRY POZNER: That’s almost always true. It’s very dangerous for any defense to mount a smoking gun defense because if the gun misfires, the jury tends to ignore everything else in the case and say, gee, you told us about this, we don’t believe that, therefore, you forfeit your right to a defense. Good old fashioned, is there proof beyond a reasonable doubt, do you really trust the word of these conflicting witnesses will be the way the defense will go at it.
JIM LEHRER: Mr. Cole, you’ve been on this story from the very beginning and you’ve looked–you’ve examined both sides of this. How does it look to you as this trial begins?
PATRICK COLE, Time: (Denver) Well, I don’t think it’s an open and shut case. I think the prosecution has left no stone unturned, along with its network of FBI agents, to assemble a case that can pin McVeigh at every stage of the bombing; however, there are some gaps that might exist in the prosecution’s case. No. 1, they don’t have any eyewitnesses who saw Timothy McVeigh make the bomb, and they thought–the theory is that it was done at the Gary Lake Fishing Area.
JIM LEHRER: That’s outside Oklahoma City, there in Oklahoma.
PATRICK COLE: That’s in Kansas, right.
JIM LEHRER: I’m sorry. Okay.
PATRICK COLE: And as Mr. Pozner said, also this problem of identifying Timothy McVeigh at the Murrah Building, they might present some witnesses, but, you know, sources tell us that they might decide not to present any witnesses because they feel with all of the circumstantial evidence linking him to the bombing plus you bring in Tim–excuse me–Michael Fortier, his best friend, who will come in and corroborate a lot of physical evidence that’s being presented–this should be enough to convince the jury that Timothy McVeigh was the one.
JIM LEHRER: Mr. Fleissner, what kind of ship is Judge Matsch likely to run? What’s his reputation?
LARRY POZNER: He’ll run the same ship he’s run for 20 years on the bench, a tight ship, a well-ordered ship. He will guard the rights of America to a fair trial. He’ll do it in this case as he has in every case, big or little.
JIM LEHRER: All right. That was Mr. Pozner. Mr. Fleissner, how do you feel about that?
JIM FLEISSNER: I couldn’t have said it any better. I agree with what he said. Judge Matsch, his management of the pretrial matters in this case was exemplary. I don’t agree with every ruling that he made in the case, and I know there are others who disagree with other rulings he made, but he ran a wonderful pretrial litigation. He was inundated with hundreds and hundreds of filings. He sorted through them. His rulings are concise. He doesn’t put up with a lot of guff from the lawyers. I think he’s going to put on a great trial and one that may contrast in a favorable way with a recent trial of some note.
JIM LEHRER: You mean O.J. Simpson.
JIM FLEISSNER: Yes.
JIM LEHRER: Mr. Pozner, do you agree with that? Of course, you’re not going to see it on television like you did Simpson, so it’s going to be dependent on reporters coming out and reporting and other folks, but do you think this is going to be an entirely different legal matter for America to see or hear about?
LARRY POZNER: Yes. It’s going to present a completely different side of the law, but it will still give a skewed vision of American law because most cases get tried in less than a week with two or three agents at most. And after all, this is a case that the government has probably spent $100 million on and assigned 500 agents. So it still isn’t the typical case but it will be exceedingly well run.
JIM LEHRER: Mr. Cole, you’re one of the few people who’s actually talked to Timothy McVeigh since–in the last two years since this bombing occurred. What’s he like?
PATRICK COLE: Well, when you meet him in person, he was very affable, very, very affable. He’s very friendly, greeted me by name, which was kind of a surprise, but he reads the press and he reads “Time” Magazine. He comes across as very, very well read. He reads–he spends most of his time reading since he’s behind bars, but he’s somebody who’s also very devoted to the ideals of the founding fathers, which is quite typical of those individuals who consider themselves patriots, and I think he does too. Very intelligent but also somebody who was very, very troubled about what happened to him during the Gulf War. I think the Gulf War was a turning point for him because this turned him against the idea of war. He felt that it was–instead of joining the army and sort of this “be all you can be” mantra that he joined it in, he, once he got over there confronted the Iraqi soldiers one on one. He saw that they were individuals just like him, and people who didn’t really want to be out there fighting. And I think that began to turn him against, you know, the idea of government. And I think also he’s–
JIM LEHRER: Excuse me. There wasn’t one specific incident in the Gulf War, was there? It was just his reading of his fellow soldiers’ minds and what they said, is that it?
PATRICK COLE: I think it was–I think specifically it was on the second day of the ground war when they had cornered an Iraqi battalion and they arrested them and they surrendered, and he saw these guys who were, you know, just scared to death. And that was the key thing that when he came face to face with these people and saw that they didn’t want to fight, and he thought that, you know, hey, this isn’t war, isn’t really what we think it is. It’s really some kind of manipulation game by the government.
JIM LEHRER: So I interrupted you. You were saying this has now led to very strong anti-government feelings on his part, right?
PATRICK COLE: Well, I think that’s what the prosecutor is going to show. He didn’t talk about it that much, and during that interview, he was very cautious about talking about areas that, you know, that, that were–that the public really wanted to know, such as where was he the day of the bombing if he says that he’s not the one? He was very cautious about that but it came across. I asked him specifically about Waco, and he said, “Well, I didn’t think the government really handled Waco.” And I asked him, “If you could sit across from Louie Freeh, who is the head of the FBI, and talk to him, what would you tell him,” and he said, “Well, I would say, ‘look, you need to sit down for a long time because we’re going to have a long talk.’”
JIM LEHRER: Yeah.
PATRICK COLE: And he didn’t go into specifics, but you know you got that angst from him.
JIM LEHRER: Sure. Mr. Pozner, if you had to bet money on this, what do you think the chances are that McVeigh–a bad way to start a question–but do you think McVeigh will testify?
LARRY POZNER: Boy, that’s a tough one. What the good defense lawyer will do is leave that open to see if they believe they have created reasonable doubt. If you think at the end of the government’s case plus whatever surrounding defense witnesses you’re going to call that you’ve already achieved reasonable doubt, then you don’t put a defendant up because defendants traditionally make bad witnesses. They’re just too nervous. And nobody has great belief in them.
JIM LEHRER: Mr. Fleissner, what’s your view of that?
JIM FLEISSNER: Well, I too would be reluctant to bet about it, but I–I think the chances are that Mr. McVeigh will not testify in this case. I think that the reasonable doubt defense attacking the government on every front, reminding the jury of the government’s burden of proof, I think that will be the defense. And if Mr. McVeigh testifies, I think it will open up the trial to a lot of material in his cross-examination like the veracity of some of the statements that he made in his interview with Mr. Cole and the consistency of that with, for example, is apparently his most favored book, “The Turner Diaries,” which is a novel about terrorist militia members blowing up government buildings. I just don’t think that it’ll be the wise decision to put him up on the stand. But that’s my 2 cents.
JIM LEHRER: Mr. Pozner, what’s your two cents on the decision by the judge not to sequester the jury, as was done in the Simpson case and is done in a lot of these big cases?
LARRY POZNER: It’s really which set of problems do you want to inherit? When you sequester the jury, you create frankly surly people. You lock ‘em up away from their families, away from everything that makes them normal people, which is how they got on the jury in the first place, by being fairly normal. And you just have a host of problems guarding them and shepherding them and cutting things out of the paper. On the other hand, you leave ‘em out there alone like he is. And they’re reading everything, and people coming up to ‘em in the supermarket, and so you have those problems.
JIM LEHRER: Yeah. Mr. Fleissner.
JIM FLEISSNER: I think his decision to sequester the jury is a wise one. I think that the court is going to try to help this jury, though. I assume that they’re going to be providing support services like the kind that you’d get if you were in sequestration to edit out the newspaper or your favorite television show, make tapes of those, to make sure that the jurors are going to be protected. I also think that the judge is going to look during jury selection for jurors who are liable to be religious about adhering to his admonitions. And he’s going to have a track record because as your lead piece said these people have been told since February to stay away from the press.
JIM LEHRER: Speaking of the press, finally, Mr. Cole, what–how long are the reservations you and your fellow reporters out there, how long are they? In other words, how long do you all expect this thing to last, the trial?
PATRICK COLE: Well, we’re looking at about at least four months, April, May, June, maybe even into July, and then again that’s uncertain because there could be other motions that could be filed by both sides. That could take it through the course of the summer, so I have an open lease at the apartment that I’m staying in.
JIM LEHRER: Yeah. You’re a smart man. Thank you all three very much.