TESTIMONY BEGINS November 4, 1997 NEWSHOUR TRANSCRIPT

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Testimony began today to determine whether Terry Nichols conspired with Timothy McVeigh to blow up the federal building in Oklahoma City. NewsHour correspondent Phil Ponce discusses the trial with Court TV's Tim Sullivan and two attorneys

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A RealAudio version of this segment is available. NEWSHOUR LINKS: September 29, 1997 Jury selection begins for the Terry Nichols trial. August 26, 1997 Betty Ann Bowser explores how Joseph Hartzler is reacquainting himself. June 13, 1997: A Denver jury sentenced Timothy McVeigh to death. June 11, 1997: The parents of Timothy McVeigh plead for his life. June 6, 1997: Victims' families discuss their reactions to the tragedy. Browse the NewsHour's coverage of law. OUTSIDE LINKS CourtTV archive of transcripts and documents from the McVeigh trial.

PHIL PONCE: Today was the first full day of testimony. The jury in Denver heard from several survivors of the 1995 bombing. We get perspective on the trial of Terry Nichols from three people who joined us periodically during the trial of Timothy McVeigh, who was convicted earlier this year in connection with the bombing: Tim Sullivan, senior correspondent for Court TV; Jim Fleissner, professor at the Mercer University School of Law in Macon, Georgia, and a former federal prosecutor; and Dan Recht, the immediate past president of the Colorado Criminal Defense Bar and a practicing attorney in Denver. Gentlemen, welcome, all of you.

Tim Sullivan, what exactly are prosecutors trying to show that Terry Nichols did?

TIM SULLIVAN, Court TV: Well, Phil, they want to prove to this jury that Terry Nichols was in this conspiracy with Tim McVeigh from day one right up until that bomb exploded. Larry Mackie, the lead prosecutor, told the jury yesterday that Terry Nichols was in this step by step with Tim McVeigh. He had Tim procure the ingredients for the bomb. He helped him build the bomb in the back of a Ryder Truck the day before the explosion. He helped him stash a getaway car in Oklahoma City, and Larry Mackie said there wasn't any facet of this conspiracy in which Terry Nichols did not knowingly and willingly participate.

PHIL PONCE: And the prosecutors acknowledged the fact that Terry Nichols was not in Oklahoma City at the time of the bombing, yes?

TIM SULLIVAN: That's right, Phil. There's no dispute about that.

PHIL PONCE: What--based on the opening statements--what might be new that will be coming out in this trial that didn't come out in the McVeigh trial?

TIM SULLIVAN: Well, there's a lot of physical evidence against Terry Nichols that did not come out in the trial of Timothy McVeigh. It's all circumstantial evidence, but it very well could link into this crime in the eyes of the jury. For example, there are fingerprints from Terry Nichols on some explosives that were found in Kingman, Arizona, the home of Michael Fortier, a good friend of Timothy McVeigh's who testified against him and will testify against Nichols; fingerprints of Terry Nichols; receipts for things that Tim McVeigh had purchased. It appeared at a time when Terry Nichols claims he was not in contact with Timothy McVeigh--and a lot of explosives--stolen guns and other items that were found in Terry Nichols' house.

PHIL PONCE: And how about this report that prosecutors may introduce evidence that the two actually assembled the bomb the day before the bombing?

TIM SULLIVAN: Yes, Phil. Larry Mackie told the jury yesterday that that evidence will be put on. That was not used in the trial of Timothy McVeigh, so anything that the jury hears that we learn from this trial about where, when, and how that bomb was actually constructed the day before the explosion would be new evidence.

PHIL PONCE: Jim Fleissner, what will be the crux of the prosecution's case? What do they have to prove?

JIM FLEISSNER, Former Federal Prosecutor: Well, the crux of the case is not any individual piece of evidence. Tim Sullivan did a nice job of summarizing a lot of key pieces of evidence. It's how those pieces fit together and interact and reinforce each other. If there is a centerpiece to the government's case, it's the statement made by Nichols in his lengthy interview with the FBI where he denied that he was involved in the bomb plot, but he made many damaging admissions, he told some lies according to the government, and he admitted knowing a lot about building bombs, knowing Timothy McVeigh, although he did deny at the bottom line his guilt, the prosecution is going to argue that that statement is powerfully incriminating of Terry Nichols.

"... it takes very little to commit the crime of conspiracy but it can be difficult to prove because you're trying to prove something about someone's mental state."

PHIL PONCE: And as far as the elements of a conspiracy just point by point, what does the government have to prove in order to show that a conspiracy did, in fact, exist?

JIM FLEISSNER: Well, a conspiracy is nothing more than an agreement to commit one or more crimes, and in a way the jury has to do a mind-reading exercise of getting inside Terry Nichols' mind to determine whether he agreed and took steps to help Timothy McVeigh with the bomb plot. So it takes very little to commit the crime of conspiracy but it can be difficult to prove because you're trying to prove something about someone's mental state.

PHIL PONCE: Dan Recht, what will the defense attempt to do? What is going to be the crux of their case, do you think?

DANIEL RECHT, Defense Attorney: Well, Michael Tigar, who gave much of the opening for the defense, said--the sort of key phrase he used, and he used it over and over again--I'd say three or four times--is that Mr. Nichols was building a life and not a bomb. And he was trying hard to distinguish between Nichols and McVeigh. He called McVeigh a wanderer and that he didn't have any roots and he portrayed his client, Nichols, as just the opposite, as being a family man, with a young family, with a wife who was pregnant, with a young child that he cared about, and so he tried very hard to distinguish between the two, and he went on to say importantly that the prosecution, with all the evidence they have, they don't have anybody saying that Nichols ever said anything about committing a violent act against the government. And so they've got a difficult task but that's the essence of their case.

McVeigh and Nichols: two contrasting portraits.

PHIL PONCE: So, Dan, is the defense then saying that McVeigh was, in fact, the bad guy but that their client, Terry Nichols, was not involved with him in committing the bombing?

DANIEL RECHT: That's absolutely right. They dumped heavily on McVeigh, just like the prosecution did. They admit that McVeigh did all of this. They said there's no question about how terrible this was, and McVeigh did it, and their view is their client, Nichols, only had a short business association with McVeigh for two months in 1994. And after that, they were just sort of distant friends, and that Nichols wasn't involved in this conspiracy in any way. The other thing to point out is that the defense spent a lot of time pointing at this unknown person, this mysterious person, who the FBI and everyone else is calling "John Doe Two," "John Doe Number Two." And I think the defense is going to try to make a lot of that; that the Fortiers and "John Doe Number Two" were the co-conspirators and not Mr. Nichols.

PHIL PONCE: The Fortiers being people who knew Mr. McVeigh, who testified in the earlier trial against him. Jim Fleissner, is this going to be a tougher case for the prosecution than the first case against Timothy McVeigh?

JIM FLEISSNER: Yes. I think it is going to be somewhat more difficult. It's a little more difficult because the circumstantial case on McVeigh was somewhat more powerful. Terry Nichols is a supporting actor in this whole drama. And he was not as involved--he obviously wasn't in Oklahoma City on the day of the crime. But I think the prosecution in their opening statement explained all of those things to the jury, and I think got across to the jury that he can still be a co-conspirator in this crime, and he's still responsible if he helped bring about the bombing.

What are the dynamics of a second trial?

PHIL PONCE: Are there any pitfalls, aside from this specific case, are there any pitfalls when a prosecutor has to--when a prosecution team retries a case, so to speak? Is there a danger of over-confidence or anything along those lines?

JIM FLEISSNER: Usually retrials go fairly well for the government. In this case the prosecution in the first case made some strategic decisions not to offer certain evidence, like the evidence concerning the building of the bomb, for example, so the defense did not get a complete preview of some of the key parts of the case against Nichols. And I don't know, but I assume that those were strategy decisions by the prosecution.

PHIL PONCE: Dan Recht, as far as the defense is concerned, are there some advantages for the defense team having a second go at it, so to speak? The defense attorney Tigar, for example, didn't take part in the first trial but he sat in on the first trial.

DANIEL RECHT: There's a huge advantage to being the second case to go. Remember, Tigar wasn't the attorney in the first case, like you said, but now he knows much of what all these witnesses are going to say. Let's take the Fortiers again for a second. He has transcripts of everything they said in the first trial. He knows what they're going to say. If they vary one inch from what they said before, he can impeach them; he can attack their truthfulness with their prior statements. So there's a big advantage to being the defendant that goes second and Tigar's going to take advantage of that advantage.

PHIL PONCE: And is Tigar considered a "more aggressive" defense lawyer than the defense lawyer for Mr. McVeigh?

DANIEL RECHT: That's my view of it. I think that's right. Tigar is more aggressive and frankly, just a greater presence in the courtroom. He--as we discussed on a prior show--he has done wonderfully well in his career. He's a very aggressive, good trial lawyer, and I suspect he's going to do a darn good job in this case.

PHIL PONCE: Tim Sullivan, speaking of the mood in the courtroom, what was the mood in the courtroom the first couple of days? The first time around in the McVeigh case it seemed to be just a very highly charged, highly emotional kind of an atmosphere. What has it been like recently?

An emotional day in court.

TIM SULLIVAN: Well, Phil, yesterday it was a little bit flat as compared to the McVeigh trial, but today things got very emotional. Today the prosecutors brought in the first of the survivors from the bombing people who identified the dead. Just a little while ago they brought in Helena Garrett, a 29-year-old young woman who lost her sixteen-month-old son in the bombing. He was one of fifteen small children killed in the day-care center at the Murrah Building. And when Ms. Garrett testified, she identified with photographs all fifteen of the small children who were killed and in the day-care center, and much of the courtroom audience was in tears as they listened to that testimony. Earlier in the day a woman from HUD, the office manager from the HUD office in the Murrah Building, identified 35 of her co-workers who were killed in the bombing. She cried on the stand and again many of the Oklahomans in the audience were in tears listening to that, so certainly the jury is going to be affected by the emotion in this, just as the jury was in the McVeigh trial.

PHIL PONCE: And yet, according to reports, Judge Richard Matsch, the same trial judge who presided over the McVeigh case, seems to be exercising a lot of control, attempting to shape the testimony so it's not too inflammatory, is that correct?

TIM SULLIVAN: Yes, that's true, Phil. We've already seen today Judge Matsch is keeping a tighter rein on the prosecution. He is not allowing them to let these witnesses, who are survivors and who lost family members, talk a whole lot about that day, what it was like when they showed up and saw the building in shambles, and searched through the rubble for their loved ones. There's been a little bit of that. There will be more, but not as much as there was in the first case.

PHIL PONCE: Jim Fleissner, one of the things that may be coming up this time around is an indication that, according to a witness, that Mr. Nichols said he wanted out of the plan. How will the prosecution deal with that particular bit of evidence, do you think?

JIM FLEISSNER: Well, it may be a question of how the defense deals with that particular piece of evidence. If the defense takes the position that Terry Nichols never knew about the bomb plot until the bomb went off, and he was totally oblivious and was manipulated by McVeigh, that statement may end up being a problem for the defense and not the prosecution because if he wanted out of the bomb plot, it means he was invited into the bomb plot, and that he was in the bomb plot earlier during the plot. And if that is the case, then it's very hard to explain his behavior in the days right before the bombing, including picking up McVeigh in Oklahoma City, when he almost certainly left the getaway car.

PHIL PONCE: Dan Recht, how would the defense approach that bit of evidence?

DANIEL RECHT: Well, you know, Michael Tigar talked about that. What he--that statement that Nichols wanted to get out of the conspiracy comes from the Fortiers again, and Tigar dealt with that directly, and what he said is the Fortiers were drug addicts; they were strung out on speed, methamphetamine, that made them paranoid, delusional, and liars. He specifically called them liars. He said there were certain truths in what they said but only things that could be proved independently. And he said he would prove those things independently. And I suspect the statement with regard to wanting to get out of the conspiracy Tigar is just going to say they're lying; that Nichols was never in it and never had anything to get out of. I know he's going to say that because that's what he said in his opening statement.

Nichols: agitated by testimony?

PHIL PONCE: Tim Sullivan, there are reports that today Terry Nichols was agitated in court. Did you see that, and what was happening in court that might have made him agitated?

TIM SULLIVAN: Well, Phil, that would have been the testimony about these people, all the people who were killed. When these victims and survivors come to the stand and they identify the victims of the Oklahoma City bombing, it's always a very dramatic moment. They put up a big easel next to the witness stand, and on this easel are facial shots, very tight portraits, of each of the dead people. And a witness names each one, says what their job was. It's very disturbing testimony, and that would have been what--what upset Terry Nichols. Interestingly, yesterday, when the prosecution was talking about the dead people during its opening statement, Michael Tigar reached over and put his hand on Terry Nichols' shoulder, something he did during jury selection too, as if to steady Terry Nichols a little bit and also to show the jury that he is even physically support Terry Nichols; that Terry Nichols is not someone that should be shunned.

PHIL PONCE: And with that, I thank you all gentlemen, very much.

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