MURDER AND CONSPIRACY? September 29, 1997 NEWSHOUR TRANSCRIPT

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Jury selection has begun in the second Oklahoma City bombing trial. Terry Nichols, a friend of convicted killer Timothy McVeigh, is charged with murder and conspiracy. He could face the death penalty. A background report is followed by a legal discussion with a reporter, a former prosecutor, and a defense attorney.

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A RealAudio version of this segment is available. NEWSHOUR LINKS: September 29, 1997 Betty Ann Bowser reports on the opening day of 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 has transcripts and documents from the case.

ELIZABETH FARNSWORTH: We turn to three men who followed this trial periodically when it was the trial of Timothy McVeigh: 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. Welcome back to all three of you. Tim Sullivan, describe the scene today. Was it like the early stages of the Timothy McVeigh trial?

"Not very much like the McVeigh trial."

TIM SULLIVAN, Court TV: Well, it was not very much like the McVeigh trial, Elizabeth. The day began with a short statement from Judge Richard Matsch of the people back in Oklahoma City, who are watching the trial on closed-circuit television, the families of victims and survivors of the bombing, and the judge said to them, "The evidence in this case will be very different from the trial of Timothy McVeigh." He said, "The trial of Terry Nichols begins on a clean page." In the courtroom the mood was I think more subdued, at least inside the well in the front part of the courtroom. Terry Nichols is a much more calm man than Timothy McVeigh. He's a very subdued sort of man. He's quiet. He comes in in the morning wearing a blue blazer and he shakes hands with his attorneys and chats with them but none of the laughing and joking with the attorneys that we saw from Timothy McVeigh or nodding to people in the audience and things like that, though Terry Nichols did acknowledge with a slight wave to his mother this morning that she was there, accompanied by Terry Nichols' sister, but there was only about half the press here for opening day than we saw at the McVeigh trial.

ELIZABETH FARNSWORTH: Dan Recht, how would you, if you were doing this case, get an impartial jury in the same courtroom with the same judge, the same place that Timothy McVeigh was just convicted and sentenced to death on the same charges that Terry Nichols faces?

DANIEL RECHT, Defense Lawyer: Well, it's a difficult task, that's for sure. The defense tried to have this trial moved to San Francisco, and unsuccessfully. So they need to go carefully with each juror, and each juror is being questioned individually, and, you know, as a background, each juror has gotten a long questionnaire asking them many questions about their background, what they knew about this case, what they heard about this case, how they heard it, where they heard it. And then they just need to be questioned concerning their biases and what they know, and you hope that you come up with a jury that doesn't have preconceived notions.

ELIZABETH FARNSWORTH: And Jim Fleissner, what would you, as a prosecuting attorney, be looking for in a jury at this point?

Analyzing the defense and prosecution strategies.

JIM FLEISSNER, Former Federal Prosecutor: (Atlanta) Well, I think the main thing the prosecution is going to be looking for, jurors with an open mind about the death penalty. And the prosecution is entitled to a jury with an open mind about the death penalty. As to the question of bias and publicity, I just don't think that's going to be a major problem in selecting this jury. I think the reality is that most of these jurors know a lot about McVeigh but very little about Nichols. And they're going to be told--as the judge did tell them already--this is a blank slate, it's a different case; you shouldn't presume anything. And the defense in the case, the defense strategy is going to make that even easier, because the defense in the case is going to be McVeigh did this but Nichols didn't do this, and didn't participate. So the very defense strategy is going to make it so that jurors with a preconceived notion about McVeigh's guilt are going to be able to be fair because the issue in this case is different.

ELIZABETH FARNSWORTH: And, Mr. Recht, do you agree that that's what the defense strategy will be?

DANIEL RECHT: Well, you know, I actually talked to Michael Tigar about this yesterday, and, and it's true; the defense strategy is going to be that Nichols was never involved in any conspiracy. Now, the press has sort of wondered and I've wondered whether that was going to be their defense, or that he was initially involved in a conspiracy and then pulled out of it, which is a legal defense, and he would not be guilty if, in fact, that went through. But Mr. Tigar confirmed for me that their position is he was never--from the beginning--involved in any conspiracy.

ELIZABETH FARNSWORTH: Mr. Fleissner, if that's the case, what does that do? What should the prosecution do? What do they have to do?

JIM FLEISSNER: Well, there's a very important aspect of the prosecution strategy and that is they have to remember that in the first case they were prosecuting McVeigh. He was the leading man in the bomb plot. Here they are prosecuting Nichols. He is a supporting actor. He wasn't there when the bomb went off. He didn't rent the Ryder truck. He has a lesser degree of involvement. The government has to forthrightly acknowledge his lesser degree of involvement and demonstrate to the jury that in the eyes of the law it doesn't matter; they can still convict Terry Nichols based on his supporting role in the case.

ELIZABETH FARNSWORTH: Okay. Jump in here, Tim Sullivan, on the differences between the two trials and how that makes the strategies of both sides different.

TIM SULLIVAN: Well, I think the prosecution here--they have a circumstantial case against Terry Nichols. Their case against Tim McVeigh was largely circumstantial but, of course, against Tim McVeigh. They had him arrested 70 miles from Oklahoma City about 70 minutes after the bombing, explosives residue on his clothing. He was, more or less, caught red-handed. They don't have anything like that against Terry Nichols.

The challenge to the government here is they have to prove their allegation about Terry Nichols built that bomb. That's the most direct connection they have to put Terry Nichols deeply inside this plot. They have said on the record more than once that Terry Nichols built the bomb the day before the bombing, but in the McVeigh trial they put on no evidence of that. There wasn't one word from the government about where, how, or when that fourth or five thousand pound bomb was constructed. We may hear the government's theory about that in this case, as Betty Ann said. They allege it was built the day before at a state park in Kansas. We'll see if they can prove that.

Also, they have Lana Padilla, Terry Nichols' ex-wife, who will be a key witness in this trial. Terry Nichols left this country a few months before the bombing went to the Philippines left the letter with Lana Padilla, said, don't open this unless I fail to return from the Philippines in 60 days. Well, she opened it immediately upon his leaving, and it was a letter to Tim McVeigh in there that said, "You're on your own, go for it," and had instructions to Tim McVeigh about things that were left in storage lockers, et cetera. That is going to hurt Terry Nichols, I believe, and it will help the government prove that he was more than just a sort of a theoretical backer of this thing.

ELIZABETH FARNSWORTH: Dan Recht, you want to say anything about that?

DANIEL RECHT: Well, it's true. They have circumstantial evidence against Nichols, and my understanding is that the defense team has reasons for all of those things and exculpatory reasons for all those things. The other thing that will differ greatly between these trials. And, again, Mr. Tigar confirmed this for me yesterday, is that they are going to--that is, the defense--put on a substantial case. He told me that they subpoenaed over 300 people just for the defense case, which comes after the prosecution case. And he also said he believed his cross-examination of government witnesses would be longer and more vigorous than we saw in the McVeigh trial.

ELIZABETH FARNSWORTH: And, Mr. Fleissner, let's talk about the lawyers for a minute. We have Michael Tigar and Larry Mackey, rather than Steven Jones and Joseph Hartzler. Starting with Mackey as a prosecutor--I'm sorry, starting with Tigar as a prosecutor--what difference will it make that it's Michael Tigar this time?

The defense lawyer: Michael Tigar.

JIM FLEISSNER: Well, in the first trial the defense team, led by Steven Jones, I think took on the air of a portly officer of the court. And in this trial I think that the defense is going to be much more scrappy. If you're a prosecutor, looking across the courtroom at Michael Tigar, the only legitimate thing to be feeling is to be worried because he is sharp, he is creative, he's smart, and he's very, very tough, and I think that he's--

ELIZABETH FARNSWORTH: Let me interrupt just a minute. He's the defense lawyer which I knew I meant as you as a prosecutor, what difference will it make, so go ahead.

JIM FLEISSNER: Right. He is an extraordinary lawyer. He has kind of a Clarence Darrow-like persona, and I think he's going to be a real star in this case. He has a triable case. He could win this case.

ELIZABETH FARNSWORTH: And Dan Recht, what would you add to that about Michael Tigar?

DANIEL RECHT: Michael Tigar has been my hero for the almost 20 years I've been a lawyer. He's a very good lawyer, but I guess I want to point out to be a very good courtroom lawyer doesn't mean you're tricky or sneaky. To be a very good courtroom lawyer means that you communicate well with jurors, that you--that they believe in you; that they trust you; that you seem honest, and Michael Tigar is all of those things. So I agree with, Jim. I think he's a formidable force.

The prosecuting attorney: Larry Mackey.

ELIZABETH FARNSWORTH: And Tim Sullivan, what about Larry Mackey, the prosecutor?

TIM SULLIVAN: Larry Mackey, Elizabeth, is an excellent lawyer. He had a very big role in the first trial. He was one of the three prosecutors who conducted jury selection in that trial, and he's doing that again here. He also delivered the closing argument, which was a very well constructed and convincing closing argument after the guilt phase in that trial. He also was a key maker of strategy in the first trial, and, of course, he's the boss this time around. And he'll be making the strategic calls.

Just to give you one example, there's a famous videotape, a surveillance video camera at an apartment building near the Murrah building, caught a picture of Terry Nichols' truck, or the government says it's Terry Nichols' truck driving by that building just moments before the bombing a block away from the building that was exploded. They were going to put that in through maintenance man from the building where the video was made, and he was going to introduce that videotape. And it was Larry Mackey who suggested to Joe Hartzler let's not do that, let's put it in through this other witness. This was a civilian witness who was getting into his car in front of that building when that tape was made, putting his 10-year-old nephew in the car, and when the bomb went off the axle from the Ryder truck that carried the bomb flew through the air three blocks and landed on the roof of his car, nearly killing his 10-year-old nephew. The importance of his decision was that the jury saw that tape only after hearing this stirring emotional story about a 10-year-old kid almost killed by the bombing whose uncle was accidentally on the videotape that the government wanted to put in. So Mackey said let's put it in through that guy; it'll have a lot more punch. And it did.

The evidence against Terry Nichols.

ELIZABETH FARNSWORTH: Interesting. Mr. Fleissner, finally, how will Terry Nichols' statement to the FBI, the nine hours and something more of testimony that he gave right after the bombing in Herrington, Kansas? How was that likely to be used?

JIM FLEISSNER: Well, it's not a confession. Terry Nichols says in the statement that he didn't know about the bomb plot. And I think, as Dan said before, that's why the defense is going to pursue that defense, but he never was a member of this bomb plot.

The defense attempted to suppress those statements as being seized in violation of the Constitution. The judge refused to do that. The statement is long. It's involved. He flip flops back and forth between various explanations for things. He starts off protesting his innocence, and he ends up saying, well, McVeigh did this and I may have accidentally helped him. The government will also try to prove that certain statements in that statement are false and they believe, on the whole, it is incriminating, even though at the bottom line it is not a confession.

ELIZABETH FARNSWORTH: Okay, gentlemen. Thank you very much for being with us.

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