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Home Stretch in the Timothy McVeigh Trial

May 30, 1997 at 12:00 AM EDT


JIM LEHRER: The Oklahoma City bombing trial is our lead story tonight. A Denver jury began deliberations this morning in the case against Timothy McVeigh. We look at the closing phase of the trial now with Tim Sullivan, senior correspondent for Court TV; Jim Fleissner, a former federal prosecutor, who’s 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 of the Colorado Criminal Defense Bar and a practicing attorney in Denver. Tim, first, on the closing events, the final arguments, both the prosecution and the defense pretty much stayed with their overriding themes, did they not?

TIM SULLIVAN, Court TV: Yes, they did, Jim. Larry Mackey, on behalf of the prosecution, took the jury through almost all the evidence step by step. He talked for about three hours, and he urged them to consider the circumstantial evidence in this case just as strongly as they consider the direct evidence. He also urged them to believe the testimony of Michael and Lorie Fortier because he said yes, they’ve lied in the past but they admitted that, and in this case their testimony was corroborated by other evidence. And Stephen Jones, on behalf of the defendant, argued that the FBI lab evidence can’t be trusted; that there’s a possibility that there was contamination of McVeigh’s clothing, and that would explain the explosives residue on those clothes, and also he attacked the identification of Tim McVeigh as the man who rented the Ryder truck. He pointed out to the jury that only one witness identified McVeigh as the man who rented the truck and no witnesses said they saw McVeigh either building a bomb in that truck, or even driving that truck in Oklahoma City on the day of the bombing.

JIM LEHRER: Did either side in their closing arguments go the emotional route, or was it mostly the recitation of what had already been heard in the courtroom?

TIM SULLIVAN: Well, Larry Mackey, for the prosecutors, did raise a lot of emotion. He talked about the victims. He talked about the survivors who came in here and testified. He reminded the jurors of Helena Garrett, a young woman who testified very early in the case, and when she testified, she brought the whole courtroom to tears talking about the dead babies in that building. And Mr. Mackey said her son, 16 months old, who was killed, barely lived as long as Tim McVeigh’s conspiracy was in existence. And by the time Mr. Mackey finished his closing argument at least three jurors appeared to be crying, and many people in the gallery were crying.

JIM LEHRER: Yeah. Mr. Fleissner, as a matter of practice, how important do you think closing arguments are?

JIM FLEISSNER, Former Federal Prosecutor: I think they can be very important, very important, indeed. When the prosecution puts in its case with lots of little bits and pieces like phone records and evidence like that, in the closing argument, the prosecution–Larry Mackey did a very nice job–was able to show how all of this fits together. And sometimes for the jury it’s going to be almost a revelation. They knew there was this phone record, but they didn’t see the significance of it. And I’m of the school of thought that closing arguments can have a real influence on a verdict in a criminal case.

JIM LEHRER: Mr. Recht, are you from that same school of thought?

DAN RECHT, Criminal Defense Attorney: Generally, Jim, although, you know, the research shows us that most jurors have made up their mind after the opening statement and before they’ve even heard the evidence. So it doesn’t mean that closings aren’t important. I think they’re very important, and I spent tons of time on them. But interestingly, there’s this rule of primacy that people make up their minds very early in the trial.

JIM LEHRER: Do you know of a case, Mr. Recht, where an outcome of a trial was determined by a closing argument? Are there any famous cases that you lawyers cite?

DAN RECHT: Can’t. And the mostly–the reason for that is what goes on in a jury room you usually don’t know. Nobody’s recording it. Nobody knows about it, and so we can’t document those things.

JIM LEHRER: Mr. Fleissner, do you know any examples?

JIM FLEISSNER: No. I don’t know of any clear examples, but I can tell you this; that sometimes the closing arguments have a bigger effect than even a jury later can acknowledge. I had a friend who told me once that the jury barely remembered that he gave a closing argument. But when he started asking him about the reasoning, he was hearing the kinds of things he’d done in his argument. And that’s what the argument’s for; to help the jury in a thinking process. I think the jurors do look to the lawyers, but they help them in that process of sorting through the evidence and analyzing the case.

JIM LEHRER: All right. Now, Tim, the other thing was the judge’s charge to the jury laying out the law in the case and the instructions to them. Anything noteworthy or unexpected in that charge?

TIM SULLIVAN: Well, the interesting thing about the way Judge Matsch gives the charge, Jim, is that he’s very good at reducing all this legalism to simple language that lay people on the jury can understand. He talks, for example, about the presumption of innocence. And he said all that presumption of innocence means is this: that if after listening to all the evidence you have any doubt, any reasonable doubt about the evidence, you’re willing to give the benefit of the doubt to the defendant. And that’s what it means. If you presume him innocent, it means you’re willing to give him the benefit of the doubt. And then he defined reasonable doubt. And he said a reasonable doubt is a doubt which would cause a reasonable person to hesitate to act on a decision. And that’s as simple as that. So I think it was also sort of a pro defense charge and that he also threw in there some instructions about how to consider identification testimony, and that was pretty good for the defense because he said you have to consider the description, how close is it to the real person, how long did the subject see the suspect, et cetera. So I think the defense is probably pretty happy with the instructions.

JIM LEHRER: Mr. Recht, this is an important matter, is it not?

DAN RECHT: Absolutely. You know, let’s talk about what Judge Matsch said when he closed even after the instructions. He said two things that mimicked, in essence, what the attorney Jones said for the defense. One, don’t pay attention to the public’s perception of what’s going on; and two, don’t let your emotions rule. Those are two things that Mr. Jones emphasized in his closing, and then Judge Matsch, in essence, echoed it and supported what Jones had to say. So I think it’s very important.

JIM LEHRER: Mr. Fleissner, what’s the record on the ability of jurors to follow the charge of a judge, even a good one and an effective one like Judge Matsch?

JIM FLEISSNER: Well, jury charges are notoriously filled with legalese. A good judge like Judge Matsch can present the legalese but help the jury with an understanding of it. My knowledge of the instructions in this case is they’re not indecipherable. They’re relatively straightforward. These are basically murder charges and conspiracy charges. The charges are not so complicated that the jury’s going to have a difficult time understanding the charges in the case. I don’t think this is one of those cases with an almost indecipherable instruction. I think it’s pretty clear.

JIM LEHRER: Mr. Recht, do you agree that the law on this is fairly simple?

DAN RECHT: I do. I do. I think it’s a factual issue. This jury has to decide if there’s any reasonable doubts left in their mind about whether Mr. McVeigh did this. And, you know, Mr. Jones tried his hardest to establish some kind of reasonable doubt in that jury’s mind, and so I don’t think it’s going to be lots of worrying about what the instructions say. I think the jury’s going to be sitting in that jury room talking about the facts and whether they have any doubts.

JIM LEHRER: Yeah. Tim Sullivan, beginning with you, all three of you when you were on this program a couple of weeks ago said that this was a model trial, at least at the time we talked before; the prosecution had just finished putting on its case. Do you still feel that same way?

TIM SULLIVAN: Jim, I do feel that way, with one exception though that could become important later. Last week, Judge Matsch ruled that the defense would not be permitted to call a woman named Carol Howell. She was an informant for the ATF at a right-wing militia commune in Eastern Oklahoma. And she told the ATF several months before the Oklahoma City bombing that people at that commune were planning to blow up federal buildings in Oklahoma. And she told them that some of those people–she named names–had gone to Oklahoma City to look at some federal buildings down there, and they were talking about blowing up buildings. Well, the defense was not permitted to call her. And that limited very severely the defense that they could put on. They wanted to put on a bigger conspiracy defense to show that if McVeigh was involved, he had a minor role. They weren’t permitted to do that. So that could be a blemish on this trial later, especially on appeal. The defense will argue that they were not allowed to put in the case they wanted to put in to defend their client.

JIM LEHRER: Do you see a potential blemish there, Mr. Fleissner?

JIM FLEISSNER: Not a serious one. Not a serious one at all. If the purpose of putting on that evidence was to show that McVeigh was not the lead player in this whole plot, that evidence is really irrelevant to whether he is criminally responsible. And I think that was the basis of the judge keeping it out. As for the trial as a whole, I think it is a model trial in many respects. It was very well run. Both sides did a great job, but I still continue to think that this case is far more representative of what’s going on in courtrooms around the country than the O. J. Simpson case, which got so much notoriety. I really think that the lawyers in this case, although they did a great job, it was very representative of the kinds of work that you’re going to see in courtrooms all across the country.

JIM LEHRER: Mr. Recht, you said when you were with us before that it was too bad this one couldn’t be on television for the people to see, rather than the O. J. Simpson trial. Do you still feel the same way?

DAN RECHT: I do, Jim, even more strongly. I mean, I think the O. J. case was an aberration, and this case would have been a good case for the country to see. I mean, when we look at famous cases that we’ve seen over the last few years normally justice is done. The Tyson case, the Susan Smith case, the Menendez case, and probably this case, those people are found guilty, and, and, you know, this was a nicely-run courtroom and a nicely-run case, and it’s too bad the people didn’t see it.

JIM LEHRER: What do you think, Mr. Recht, of the judge’s decision to sequester the jury now? The jury was not sequestered during the trial, itself, but is now sequestered in for deliberations, and he’s told ‘em to deliberate over the weekend. What do you think of that?

DAN RECHT: I think the judge has been very good and very fair to this jury. You know, normally or often juries in high publicity cases like this are sequestered the whole time, and he didn’t do that to them. And he simply said to them, look, now that there’s deliberations, now that you’re actually meeting privately I want you to be segregated and by yourself. And that seems fine to me, appropriate to me, and I bet appropriate to the jury as well.

JIM LEHRER: Fine and appropriate to you, Mr. Fleissner?

JIM FLEISSNER: Yes, indeed, Jim. I think that sequestering them at this point is a very, very good move. And if I could make a quick remark about the television aspect–


JIM FLEISSNER: I think that not having this case on television is one of the reasons why the case went so smoothly. You know, there’s that theory in particle physics that just by observing the particles you can sometimes change them, just by observing. And I think that’s true in trials too. I think that had this been on television–although Judge Matsch, I’m sure, would have ruled with an iron hand–it would have changed the perception of the lawyers, the perception of the witnesses, the perception of the jurors, and I don’t think it would have gone as smoothly. I’m against televising trials, obviously.

JIM LEHRER: Now, Tim Sullivan, you’re in the business of televising trials. What do you think the lack of television did, good or bad, to this trial?

TIM SULLIVAN: Well, Jim, I don’t agree that if a camera had been in that courtroom the trial would have proceeded much differently. Judge Matsch is the man who decides how that trial’s going to go. The lawyers in that courtroom don’t even change seats at the table without asking his permission first. That would not have changed. I think the difference–one difference is, however, that maybe there’s more pressure on the attorneys, more personal pressure on the attorneys, when there’s a camera in there, and it might make them a little bit more uptight. I don’t believe it makes them perform much differently, but it might have put a little added pressure on them that I think they would probably say they didn’t need in this case.

JIM LEHRER: Mr. Recht, it’s also been suggested that the lack of television has prevented the creation of a whole new class of celebrity lawyers coming out of this, no movie deals, no book contracts, as there were in these other trials. Do you agree there–with that?

DAN RECHT: In part, but, you know, another interesting piece of that is these attorneys for Mr. McVeigh weren’t paid hundreds of thousands of dollars. They were court-appointed attorneys getting court-appointed rates, whereas, O. J.’s attorneys got, who knows what they got, so these–you know, they were representing an indigent man, and they took this on–as I understand it–because of their strong belief in the fifth amendment and that people have a right to an attorney even if they are indigent. So there’s a big difference there between the attorneys in the two cases.

JIM LEHRER: What about the celebrity prosecutors, Mr. Fleissner, any going to emerge from this trial?

JIM FLEISSNER: Well, the prosecution team did an excellent job. Obviously, Joe Hartzler has had the highest profile of anyone on the team. But I’ll tell you, Joe Hartzler is not a headline grabber. Joe Hartzler is not going to be going on the interview circuit when this trial is over. He got involved with it just like some of the defense attorneys because he believes in the cause. And I think he’s carried himself very well. And I think that if he gets–if he ends up being appointed a judge or something like that down the line, that’ll be his reward. But I don’t think he’s in this for celebrity.

JIM LEHRER: Okay. Quickly, Tim, before we go, what’s the betting odds out there on how fast the verdict is going to come in?

KATHLEEN SULLIVAN: Well, Jim, of course, there’s no way to know. The only indication we do have is that the jurors told the court this afternoon that they need–if they need to come back here tomorrow, they want to start at 8 AM tomorrow. The judge has told them they can set their own hours, and they said they want to get cracking at 8 AM tomorrow, so it looks like they are interested in putting in a long day and getting this thing done maybe as soon as they can.

JIM LEHRER: So stay by the phone, Sullivan.


JIM LEHRER: Okay. Thank you all three very much again.