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JIM LEHRER: For more now on where the trial stands we go to Tim Sullivan, senior correspondent for Court TV, Jim Fleissner, a former federal prosecutor who has worked with two of the prosecutors in the McVeigh case. He’s now a professor at the Mercer University School of Law in Macon, Georgia, and Dan Recht, president of the board of directors at the Colorado Criminal Defense Bar and a practicing lawyer in Denver.
Tim Sullivan, an emotional ending, it was an emotional beginning too, was it not, for the prosecution’s case?
TIM SULLIVAN, Court TV: Very emotional, Jim. We saw several people crying again in the gallery today, visitors from Oklahoma, mainly, as Florence Rogers described losing her co-workers, six people, as Betty Ann said, who were in a meeting with her, just disappeared, she said, when that bomb went off. She also talked about 12 other co-workers of hers in the federal credit union who were killed, and then a fire captain–a fire chief came on and talked about the rescue effort, how he crawled through the rubble in that building for hours, pulling people out, trying to dig people out, and talk emotionally about how difficult it was that the whole building had collapsed and that people were crushed under the floors, and he said there was actually bodily fluids from people dripping down on the firefighters as they dug through that rubble, looking for survivors. It was very dramatic testimony.
JIM LEHRER: Eighteen days in this considered very–to have gone much quicker than expected, did it go more dramatically than expected. Can you characterize what it was like in that courtroom these last 18 days?
TIM SULLIVAN: Well, Jim, it was a very fine-tuned presentation by the prosecution. There was very rarely a dull moment. I mean, there were a couple of slow days when they had to go through phone records and go through some forensic evidence and some dry testimony explaining ammonium nitrate and all that, but they broke it up by bringing in the survivors and the victims at the appropriate times. It seemed like a day didn’t go by that we didn’t hear a very dramatic story, if not from a survivor, than from one of the Fortiers talking about Tim McVeigh explaining what he was going to do with Jennifer McVeigh, talking about her brother’s hatred for the government and his desire to start a revolution. It was just very well put together by the prosecution. It didn’t seem even like it took the 18 days that it did.
JIM LEHRER: Mr. Fleissner, would you agree a very well put together case for the prosecution?
JIM FLEISSNER, Former Federal Prosecutor: Very well put together. They put on a strong case in a compelling and efficient manner. But one thing I think it’s important to realize. While they did a sterling job in this case of selecting witnesses from the long witness list and putting on the best that they had and putting on an excellent order of proof, this was not that unusual in terms of the quality of presentation, and I think the public needs to understand that. And I’m not just talking about the federal court but state trials at all. This was a first class job but not that unusual, in my estimation.
JIM LEHRER: Explain what you mean. I mean, people, for instance, who watch Court TV, Tim’s channel, and others who are now coming–in other words, the O. J. case and all of that, you don’t think this stands out as an outstanding presentation by a prosecution?
JIM FLEISSNER: Oh, it does stand out as an excellent presentation, and it’s much, much better than the Simpson case as an example of how the system works. And while I give high marks to the prosecutor, high marks to the judge, high marks to the defense counsel in the case, I think if you go back and look at former trials that Judge Matsch ran, former trials that Joe Hartzler tried, you’re going to see the same–
JIM LEHRER: He’s the federal prosecutor, and the judge, of course, is the judge in the case. I see.
JIM FLEISSNER: That’s correct.
JIM LEHRER: I see. Mr. Recht, how do you–where would you rate the prosecution’s case in this–in this particular case and the way they presented it?
DANIEL RECHT, Criminal Defense Attorney: Jim, I’d have to rate it high as well. I completely agree with what the other two said, and the interesting thing is it’s–it’s a shame actually that this trial wasn’t televised, because I think the criminal justice system took a beating after the–or during the O. J. case, and the public would have seen if this case was televised how well a courtroom can be run and how much control a judge can have because Judge Matsch is amazing in that way, and frankly how well a prosecutor can put on a case because Hartzler was amazing in that way. So–
JIM LEHRER: Amazing, amazing. I mean, what an amazing job and an amazing prosecutor.
DANIEL RECHT: Well, that’s my view of it.
JIM LEHRER: Yeah. What did they do that makes them amazing, that makes them different than say the O. J. case or any other case that we’re familiar with?
DANIEL RECHT: Well, you know, they had literally tons of evidence and hundreds of thousands of pages of documents and spent years on this thing and could have put on evidence for years literally, I suppose, and instead, they had to distill it down to 18 days. And that takes a whole lot of work to do it right and choreograph it right, and I say that in a positive sense. And they did just that. And so I think a lot of work went into–hundreds of hours went into the 18 days that we saw.
JIM LEHRER: Yeah. Tim Sullivan, you’ve been in a lot of courtrooms, how would you rate this on the scale of–of superiority in terms of the way–just the way the case was presented and the way the judge presided, et cetera, up till now?
TIM SULLIVAN: Jim, this is probably the best–the best put on prosecution case I’ve ever seen, and Judge Matsch is certainly one of the finest judges I’ve seen. I’ll give you a comparison. In the World Trade Center bombing trial a couple of years ago, which I covered for Court TV, the prosecution took six months to put that case in, and Judge Duffy, Kevin Duffy in that case, another good judge, but he let it go on and on and let them do what they wanted to do. He threatened to stop it several times to limit them, but he never carried out his threats. That’s the difference with Judge Matsch. He doesn’t make hollow threats. He stops things when he wants them stopped. He doesn’t hold side bars even. Yesterday he held a side bar for about 10 minutes.
JIM LEHRER: Explain what a side bar is.
TIM SULLIVAN: That’s a private conference among the attorneys at the judge’s bench, and of course, the gallery and the jury cannot hear what’s going on there. Well, he held one yesterday for about 10 minutes after the jury left. He then apologized to the gallery for holding a side bar. He said, I don’t like to do this, I don’t like to slow things down and do things in secret. Now, he’s done a lot in secret in his chambers, but he doesn’t keep a jury waiting while he’s doing that. And he doesn’t keep the gallery waiting while he’s doing that.
JIM LEHRER: Yeah. Mr. Recht, how did the defense import itself in fighting this–this good case that the prosecution put on?
DANIEL RECHT: Well, Jim, in answering that I think that we have to keep in mind that this is a death penalty case and the prosecution, the government wants to execute Mr. McVeigh. And I say that because from the very moment Mr. Jones got involved in this case–I’ve never talked to him–but I know with certainty he had in mind the death penalty. I’ve done these kind of cases. You have to know it from the beginning. So from the beginning he’s thinking to himself he needs to save the life of or try to save the life of his client, and it’s been a difficult task up until now. Now he hasn’t put on his case, and I don’t want to second-guess what’s going to happen but up till now they’ve had a tough run of it.
JIM LEHRER: Yeah. Would you agree with that, Mr. Fleissner, that the mountain that faces the defense is rather high?
JIM FLEISSNER: Yes. As was just pointed out, the fact that this is a death penalty case is critical because what’s different in a death penalty case is the same 12 jurors are going to decide the death penalty phase. And in deciding how to defend the case, the defense has to be careful not to alienate the jury, to put on elaborate conspiracy theories that the jury rejects and thereby destroy their credibility. Mr. Jones said before this trial that the prosecution’s case was like the Titanic, and I’ll tell you, I don’t see any icebergs; I’m not even sure there are any ice cubes.
JIM LEHRER: Yeah. Do you see–based on your experience, Mr. Recht, where would you–where would you expect the defense to put its main guns in trying to knock this case down?
DANIEL RECHT: I think what we’ve got to do–I have to agree with what just was said–they can’t come up with any grandiose conspiracy theory because they’re going to lose credibility. What they have to do is take shots at the prosecution’s case. There are lots of places where the prosecution’s case is a little bit weak. I mean, there’s somebody that says they see McVeigh in a Ryder truck before he supposedly renting the Ryder truck, and of course, the Fortiers are admitted liars, and, you know, it goes on and on with little things that they can–they can take pot shots at, and that’s what they have to do, and hope that this jury even if they convict Mr. McVeigh, as it looks like they probably will, of first degree murder, will have some residual doubt and choose not to execute him because it’s a circumstantial case, and they have some remaining doubt.
JIM LEHRER: Yeah. Tim Sullivan, based on your reporting, is that kind of the approach that you understand that the defense is going to take?
TIM SULLIVAN: I think it is, Jim. I think they’re going to mount an all out assault on the identification witnesses. Only one witness, Eldon Elliot, came in here and said Tim McVeigh is the man who rented the Ryder truck. Only one witness said that. Now others saw him in a Ryder truck but of course saw him in a Ryder truck too soon, the day before it was rented. Mr. Jones will call witnesses who will back that up. He’ll call other witnesses who say, yeah, I saw McVeigh in a truck but it was before the bomb truck was rented. And Mr. Jones is also expected to call witnesses who will say they saw other people in that truck who do not resemble Timothy McVeigh at all. He’s going to try to raise the specter of John Doe 2 and John Doe 3. In fact, he has said in his opening that he will introduce evidence that there was another Ryder truck; that maybe the truck McVeigh was seen in wasn’t the one that blew up the building. And of course, he’ll attack the credibility of the FBI lab and try to knock down that explosives residue found on his client’s clothing.
JIM LEHRER: All right. Mr. Fleissner, what is the job of the prosecution now, as the defense puts on its defense? They can’t rest on their laurels, can they?
JIM FLEISSNER: No, they sure can’t. They’re going to, you know, go after the witnesses that are brought forward and test what they have. I don’t think there will be the extent of cross-examination that you saw in the defense case, but I think the government will bring out the good information from the witnesses that they can, limit whatever damage is there, but I think they’re essentially resting on the strength of the case that they brought. And if the defense chips away a little, I think they can live with that. If they fight too hard during the defense case, they can send the message that they think they’re in some trouble based on the defense case.
JIM LEHRER: So they have the same problem that the defense has. You agree with Mr. Recht–well, it’s actually your point–that they go into too big a conspiracy thing–if the defense does that–the prosecution has a similar problem; they can’t run too scared, is that it?
JIM FLEISSNER: No, that’s exactly right. I mean, the prosecution pared down the case. There are a number of eyewitnesses who were prepared to identify McVeigh, but there was good material for the defense to cross-examine them with. The prosecution chose not to call some of those eyewitnesses. If the defense takes the gamble of calling a few of those to raise some of the inconsistencies, the prosecution is going to get some good benefit out of those witnesses because they’ll identify McVeigh in court. One such witness is Tom Kessinger, the Elliot’s auto body employee who was not called in the government’s case in chief.
JIM LEHRER: Yeah. Tim Sullivan, the word is thirty to forty witnesses, that’s what the defense plans to call?
TIM SULLIVAN: Yeah. I think that’s about right, Jim. Stephen Jones has indicated it shouldn’t take any more than a week or two. I think there will be, you know, some conspiracy evidence might come in. He wants to point to other people. He can’t just say it wasn’t McVeigh and not come up with anybody else. He is trying to get in here a form of government informant who says that she warned the ATF that people out in Eastern Oklahoma in a white separatist compound were plotting to bomb buildings in Oklahoma during that period of time, and he may be able to get her in there. I think he has to raise the specter of other people having done this if it wasn’t Tim McVeigh.
JIM LEHRER: Yes. Mr. Recht, back to your point a while ago, this trial is moving so much faster than anybody anticipated and as all three of you have said, much faster than most similar trials have–have moved. Is this mostly attributable to the judge?
DANIEL RECHT: No. I think it’s attributable to three things. I think Hartzler also–the prosecutor–has done a good job of considering that juries get bored, and the jury got bored in O. J. and I don’t know about–I mean, the case in New York that was referred to, but a six month trial, people get bored. It’s much better to do, as Hartzler did, and that is to keep it sharp and to keep it emotional. And so I give a lot of the credit, frankly, to the prosecutor with the judge also.
JIM LEHRER: And the defense has to follow the same tone now, they also have to keep it short?
DANIEL RECHT: Well, I think that they do, but they would anyway. They just don’t have the volume of evidence to put on that the prosecution could have put on. The other point to keep in mind, I think, and see if your other guests agree, that I think the prosecution’s saving some good stuff, and we’re going to see either in rebuttal or in the death penalty phase some strong evidence out of the prosecution that they didn’t do in their case in chief.
JIM LEHRER: Is that possible, Mr. Fleissner?
JIM FLEISSNER: It certainly is. Joe Hartzler showed a tendency during the case to hold things back. A great example was, as your lead-in piece says, Michael Fortier identified the alley where Timothy McVeigh told Fortier he was going to leave his getaway car. Immediately after Fortier went off the stand, Hartzler called in and made the first public revelation that they had found the key to the Ryder truck in that very alley, so he’s shown a propensity to do that sort of thing in the case.
JIM LEHRER: All right. Well, we’ll see what happens. Thank you all three very much.