The Oklahoma City Bombing Trial Transcripts
Terry Nichols
Monday, December 15, 1997 (afternoon)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal Action No. 96-CR-68
UNITED STATES OF AMERICA,
Plaintiff,
vs.
TERRY LYNN NICHOLS,
Defendant.
REPORTER'S TRANSCRIPT
(Trial to Jury: Volume 126)
Proceedings before the HONORABLE RICHARD P. MATSCH,
Judge, United States District Court for the District of
Colorado, commencing at 1:15 p.m., on the 15th day of December,
1997, in Courtroom C-204, United States Courthouse, Denver,
Colorado.
Proceeding Recorded by Mechanical Stenography, Transcription
Produced via Computer by Paul Zuckerman, 1929 Stout Street,
P.O. Box 3563, Denver, Colorado, 80294, (303) 629-9285
APPEARANCES
PATRICK RYAN, United States Attorney for the Western
District of Oklahoma, and RANDAL SENGEL, Assistant U.S.
Attorney for the Western District of Oklahoma, 210 West Park
Avenue, Suite 400, Oklahoma City, Oklahoma, 73102, appearing
for the plaintiff.
LARRY MACKEY, SEAN CONNELLY, BETH WILKINSON, GEOFFREY
MEARNS, JAMIE ORENSTEIN, and AITAN GOELMAN, Special Attorneys
to the U.S. Attorney General, 1961 Stout Street, Suite 1200,
Denver, Colorado, 80294, appearing for the plaintiff.
MICHAEL TIGAR, RONALD WOODS, ADAM THURSCHWELL, REID
NEUREITER, and JANE TIGAR, Attorneys at Law, 1120 Lincoln
Street, Suite 1308, Denver, Colorado, 80203, appearing for
Defendant Nichols.
* * * * *
PROCEEDINGS
(In open court at 1:15 p.m.)
THE COURT: Be seated, please.
(Jury in at 1:15 p.m.)
THE COURT: Ms. Wilkinson, you may proceed.
CLOSING ARGUMENT CONTINUED
MS. WILKINSON: Thank you, your Honor.
Good afternoon. When we broke, we were talking about
Mr. Nichols' last activities on April 18 when he was building
the bomb with Timothy McVeigh at Geary Lake.
You know that that afternoon, he left Mr. McVeigh,
according to his story, at the McDonald's in Junction City,
Kansas, for the last time. When Mr. Nichols spoke to the FBI
on April 21st, he told them at first that Mr. McVeigh had left
and they had parted the way they always did, "Catch you later."
But eventually during the questioning, Mr. Nichols admitted
that Mr. McVeigh had asked him to clear out his storage shed in
Herington, Kansas. And Mr. Nichols admitted to the FBI that he
had done that; that on the morning after the bombing on
April 20th, he had gone to Unit 2 in Herington and cleared out
the storage shed for Mr. McVeigh.
There are several questions that are raised by
Mr. Nichols' version of the story to the FBI. First is how did
he know that he should clean out that storage shed on the
morning of April 20th if he wasn't involved with the bombing.
Mr. McVeigh, he says, told him that he was leaving to go back
East to see relatives. That means Mr. McVeigh would have had
to leave on the afternoon of April 18th and returned on the
19th for -- to clean out the storage shed in order not to raise
suspicion in Mr. Nichols' mind. Just 24 hours to get all the
way to New York and back to his family. That, of course, makes
no sense. The reason that Mr. Nichols cleaned out the storage
shed on Wednesday, April 20th -- excuse me -- on Thursday,
April 20th, was because he was expecting Mr. McVeigh to come
back. He was expecting Mr. McVeigh to drive down to Oklahoma
City, to leave the truck bomb that they had made and to drive
directly back north to central Kansas.
You know this was the plan because when Mr. McVeigh
was arrested on April 19th, after detonating the bomb outside
the Murrah Building at approximately 9:02 a.m. on Wednesday the
19th, he got on Route -- I-35 and drove directly north, going
back to Kansas. And as part of his plan, he was going to
return to central Kansas to be with his partner in crime, Terry
Nichols.
But thank goodness for Trooper Charlie Hanger.
Trooper Charlie Hanger finally stopped Timothy McVeigh and
Terry Nichols' plan. Timothy McVeigh could have driven
anywhere. He could have gone south, he could have gone east,
and he could have gone west; but he drove -- he chose to drive
north back to Kansas.
Just the way he planned it.
When Trooper Hanger arrested him and brought him back
to the Perry County jail, Terry Nichols was alone. On Thursday
morning, when Timothy McVeigh did not arrive back as planned,
Terry Nichols went to the storage shed and cleaned out Timothy
McVeigh's items. He then went into town to get cable TV so
that he could find out what had happened to his compatriot, and
he recognized at that point that he needed more information.
He started to panic.
He started to realize that for the first time, Terry
Nichols didn't have a plan.
So he went and he bought three newspapers, three
newspapers all from Kansas that talked about the Oklahoma City
bombing.
Now, you have to ask yourself if Terry Nichols was
responsible for the bombing, why would he buy three different
newspapers on the same day? You know that the only reason that
most people buy three different newspapers on the same day is
when the story is about you or someone you know.
If your wedding announcement is in the papers, your
retirement or a touchdown that your son scored at the high
school football game, you would buy several papers because
you're proud of what your family had done. Terry Nichols
bought three newspapers on the same day because the story about
the Oklahoma City bombing was about him. He and Timothy
McVeigh had planned and executed the event that was the
headline in every paper around the country on April 20th.
Terry Nichols wanted to read about the bombing; and most
importantly, he probably wanted to find out about the
investigation of the bombing because he wanted to know what law
enforcement knew about what he had done.
He was a clever, crafty man, and he wanted to make
sure that he had as much information as law enforcement did.
He wanted to know if they had figured out that he had stored
the bomb components in the storage sheds near his community.
He wanted to know when the law enforcement would find out about
the Ryder truck being rented in the town next to him. And he
wanted to -- wanted to know when the police would realize that
one of the main components in the massive bomb that destroyed
the Murrah Building was ammonium nitrate.
Can you imagine the panic he started to feel? The
methodical, careful, and devious Terry Nichols had planned for
almost everything, but he never expected that Timothy McVeigh
would not return to Kansas. For the first time in months, he
was on his own with no plan.
And inside his house was plenty of incriminating
evidence.
So on April 21 when he woke up that morning, he knew
that he had to do something, but he didn't know what to do. So
he got out in his yard and started tossing ammonium nitrate,
covering his yard so it looked like snow.
You all remember Gladys Wendt. She was the lady from
Herington, Kansas, who drove in to have her hair done every
Friday morning, met up with her cousin, and took their day to
hoot and holler. She told you exactly what she saw on the
morning of April 21st, 1995. She saw Terry Nichols tossing
ammonium nitrate on his yard, on a yard that didn't have a
whole lot of grass, and it was certainly not done to grow that
grass on April 21st, 1995. Gladys told you that that's -- the
ammonium nitrate that looked like snow was on so heavy that it
would have burnt any grass that was already there, but she kept
her mouth shut and didn't talk to Terry Nichols.
Terry Nichols was trying to destroy the evidence that
he knew would incriminate him, the evidence that he knew but at
the time no one else knew would show that he had been part of
the Oklahoma City bombing.
Why would he toss ammonium nitrate on his yard? He
tossed it because he had mixed the bomb himself and he knew
that the main charge, the massive part of the amm -- of the
bomb was made of ammonium nitrate. And he panicked. He wanted
to get rid of it, and he put it on his yard, hoping that law
enforcement would never suspect him.
Just a couple hours later, as his wife Marife told
you, he heard his name on the radio and decided that he had to
talk to law enforcement. He couldn't take it anymore. He
wanted to know what they knew, and he wanted to try and explain
away everything he had done.
And he thought that he could talk his way out of it.
He knew or at least he thought that no one could ever trace the
Daryl Bridges phone card. He knew it was a debit card. And he
knew that -- or he thought that because he didn't receive a
bill for those records and because that card was in a false
name, that once he debited the account, there would never be
any records of his criminal calls with Timothy McVeigh.
He was wrong.
He also knew that he had been with Timothy McVeigh on
the evening of April 16th. And he knew from the CNN broadcast
on April 21st, which was interesting -- which was introduced in
evidence that the FBI acknowledged that they had recovered a
videotape from near the Murrah Building so in his calculating
way, he knew that he had to admit to law enforcement that he
had been in Oklahoma City on April 16th, 1995, because the
videotape could have captured him going around the Murrah
Building. And he was right. You saw the videotape from the
Regency Towers, showing his truck passing by the building,
going down 5th Street one way towards the Murrah Building, on
the evening of April 16th.
You also showed the -- saw the videotape which showed
the Ryder truck approaching the Murrah Building just moments
before the blast.
So Terry Nichols, on the afternoon of April 21st, did
a calculation in his mind. He decided that he knew what law
enforcement knew. He knew what they could figure out and what
they couldn't, and he was going to go in and talk to them. He
was going to go in and try and blame it on his friend Timothy
McVeigh and elude detection for all criminal activities.
But Terry Nichols lied, and Terry Nichols lied over
and over again to the FBI on the pieces of information that he
thought they could never contradict. But he was wrong. Terry
Nichols lied about anything that would have incriminated him
just like a guilty man does.
The first lie Terry Nichols told was that he had no
contact with Timothy McVeigh before April 16th other than the
letter he wrote for the television. You know that's a lie
because you've seen the phone records.
You also know that that's a lie because of the
Wal-Mart receipt.
He also lied about the purpose of his trip to Oklahoma
City. He admitted that he went to Oklahoma City, but he lied
and said he was going down there to pick up a television set.
He lied and said that he hadn't seen Timothy McVeigh
face to face before that date. And it's the Wal-Mart receipt,
a simple receipt for $2.54 that shows you he was lying about
everything.
Here's the Wal-Mart receipt with the front and the
back and the sticker that shows you that on April 15th, 1995,
Terry Nichols returned the oil filter that was circled here by
Mr. Kordyak at the Manhattan Wal-Mart. You know he was there
because we found another receipt that showed him purchasing
items for his home; but most importantly, his own wife told you
that he returned the oil filter on that day.
In case there's any question, you can see right on the
back here, circled on the left of this piece of evidence is SWB
upside down, which is Southwestern Bell, and Mr. Nichols' No.
9349. You can see that that matches the Southwestern Bell card
for Mr. Nichols, Government's Exhibit 2003.
You also know that that receipt was Mr. McVeigh's
receipt from Arkansas City because it says on the receipt that
the initial purchase was made in Arkansas City on April 13.
You know that Mr. McVeigh handled that receipt because you
heard that there were fingerprints on that receipt of Timothy
McVeigh and Terry Nichols.
Here on this chart, you see the Wal-Mart receipt with
the purchase from Arkansas City on April 13th, the circle of
the oil filter with the initials and the tag showing, "Return
on April 15th"; and to the left, you see Terry Nichols'
thumbprint on the top and Timothy McVeigh's thumbprint on the
bottom.
Here is the exhibit -- Government's Exhibit 265CC that
Mr. Huff made for you to show you exactly where those
fingerprints were on the front of the receipt. Up here, where
it says "Terry Nichols," shows that Terry Nichols had his
thumbprint right here where the initials were and above the
"Wal-Mart." And Timothy McVeigh had his fingerprint, his
thumbprint right down on the bottom of the front of the
receipt.
Their fingerprints were found not just on the front,
but also on the back, as if Timothy McVeigh had been face to
face with Terry Nichols and handed him the receipt just like
that.
For Terry Nichols to get that April 13th, 1995,
Wal-Mart receipt, Terry Nichols had to be face to face with
Timothy McVeigh before April 15th when he returned the oil
filter. He had to get that oil filter that Mr. Kordyak told
you he got returned on April 15th from Timothy McVeigh. That's
what happened, ladies and gentlemen. The documentary evidence
proves it, and Mrs. Nichols left no doubt in your mind about
what happened.
So once you see that evidence, what is the only
conclusion that you can make? That Terry Nichols lied about
why he went to Oklahoma City on April 16th, that Sunday. He
had already been face to face with Timothy McVeigh the day
before. He had received that oil filter and that receipt. If
he was face to face with him, why didn't he get his television
set with him then? Because he wasn't going to Oklahoma City to
pick up a television set. He was going there to stash the
getaway car and to prepare for the bombing of the Murrah
Building. There is no other explanation. Terry Nichols and
Timothy McVeigh were face to face before April 16th. Terry
Nichols lied to everyone and he lied about something that he
knew would show he had been part of the plan up to the very
end, and it's a simple Wal-Mart receipt that tells you that
that is true.
Terry Nichols had returned the oil filter that day,
but he did not get his cash. Mrs. Nichols told you that he had
forgotten when he was in the store. After he went back to the
automotive section and returned the oil filter, they went about
their shopping. He forgot to go to the customer service desk
to get his money back, so he still had that receipt in his
hand. They drove on to Junction City and stopped at the
Wal-Mart one more time where Mr. Nichols tried to get his money
back, but the lines were too long.
If Terry Nichols had been able to get his money back
that day, he would have left the receipt with the Wal-Mart and
you would have never seen it. But even criminals mess up. And
Terry Nichols had no idea on April 15th that that Wal-Mart
receipt would tell you everything you need to know about what
Terry Nichols was doing in the week before the bombing and why
he was going to Oklahoma City on April 16th, 1995.
So Terry Nichols lied about his contact before
April 16th because he didn't want to tell the truth about his
trip to Oklahoma City.
He lied about his knowledge of Timothy McVeigh being
at the Dreamland because, again, that would tell you that he
had been in contact with Timothy McVeigh on those days
preceding the bombing and that they had planned to build the
bomb in that phone call from the Kansas City airport to the
Dreamland Motel the night before the meeting at Geary Lake.
You know he lied about that because you've seen the
phone records.
He also lied about having any explosives in his house
because he didn't want the FBI to be suspicious, but we know
Primadet was found in his house.
He lied about being at DRMO for six hours because of
the reasons we've already reviewed. He didn't want anyone to
know that he had been mixing those bomb components with his own
hands just 24 hours before the bombing. He lied about DRMO but
let the FBI know that he had signed in so they could go see the
record at 12:50. He told them the truth about what he knew
they could figure out, and he lied about the things he thought
they could never discover.
The best example of that is his statement -- it's his
lack of forthrightness about Bridges and Havens. He told the
FBI and the marshal service about the aliases that he used. He
never mentioned Bridges and he never mentioned Havens. He
never mentioned Bridges for the reasons we've already stated,
because that phone card, the phone card in Bridges' name, gives
you a road map to what Terry Nichols and Timothy McVeigh were
doing from the fall of 1994 to the spring of 1995; and he
surely didn't want to reveal the name "Havens," whether it was
Joe, Mike, or Terry, because he knew that would lead the FBI to
the purchase of 4,000 pounds of ammonium nitrate back in the
fall of 1994.
When Mr. Nichols did talk about the storage sheds that
he had rented, he told the FBI about the Council Grove storage
shed No. 40, and he told them about the Herington storage shed.
He told them that because he had seen -- he thought the FBI
knew about some of the storage sheds when they came back and
asked him during the end of the interview, but he never
revealed Council Grove No. 37. Even though he told them about
No. 40, he never revealed No. 37; but again, that would have
led the FBI to the robbery of Roger Moore and the storage of
the stolen guns.
He never told the truth about the purpose of emptying
the storage shed in Herington because he knew that if he didn't
make it sound like he was just doing Timothy McVeigh a favor,
everyone would have known that he was emptying the storage shed
in Herington on April 20th because his plan with Timothy
McVeigh had gone awry after the bombing. Timothy McVeigh had
not returned.
He definitely did not want the FBI to know about
Michael Fortier, because he knew that Michael Fortier knew he
was part of the plan. So when he talked to the FBI, he said he
didn't know Michael Fortier's first name. You know that's not
true because the book recovered from Mr. Nichols' house listing
addresses shows on page 4 that he has Michael Fortier's first
name and his full address. He was hoping beyond hope at that
time that the FBI would not be able to find Michael Fortier and
determine that Terry Nichols had agreed with Timothy McVeigh to
bomb and kill.
And finally, after the F -- after he finally
acknowledged at the end of his interview that he had tossed
ammonium nitrate on his yard, he explained to the agents that
the reason he did it, but didn't tell them about it initially,
was because it would make him look guilty in front of a jury.
Well, we all agree on that. It definitely makes him look
guilty in front of a jury.
He also said that anyone with ammonium nitrate on
April 21st would have been a suspect in the bombing, an
absolutely ludicrous assertion. Terry Nichols had this yard in
front of his home on April 21st, 1995. He tossed that ammonium
nitrate on there not to grow his grass, but to hide the
evidence. And he knew the reason it would make him a suspect
was not just because he had ammonium nitrate in his house, but
because he had virtually everything else anyone would need to
bomb the Murrah Building.
Look at this list of items that were found in
Mr. Nichols' house two days after the bombing. The ammonium
nitrate receipt in the name of "Mike Havens," showing he
purchased 2,000 pounds of ammonium nitrate, which led us to the
second receipt showing he had purchased a total of 4,000 pounds
of ammonium nitrate.
He had ammonium nitrate in his home.
He had the Primadet, the exact same kind of Primadet
that was stolen from the quarry.
He had the Makita drill, the drill that was used to
drill the padlocks at the quarry.
He had plastic barrels, Smurfit plastic barrels that
were used to contain the device in Oklahoma City.
He had the Bridges card, the card that showed all the
phone calls he made to further the plot.
He had the Hunter, the book that showed him and showed
you that he knew exactly what would happen if an ammonium
nitrate/fuel bomb was placed in front of a glass building.
He had Mr. Moore's guns and ammunition.
He had Mr. Moore's quilt and keys.
And he had Waco materials, showing how he felt about
the government's actions at Waco.
This list of incriminating evidence was found in Terry
Nichols' house. All of these items were there on April 22d
when the agents searched his home.
Mr. Nichols was not a suspect because he tossed
ammonium nitrate on his yard or just because he had some
antigovernment literature in his home. He was a suspect
because of everything else that he had in his house and every
action he had taken from September of 1994 until April 19,
1995.
In the face of this overwhelming avalanche of
evidence, Terry Nichols presented a defense to you that was
meant to confuse and to throw blame once again onto someone
else.
Ask yourself what type of man would raise the issue of
John Doe 2 and other sightings of a Ryder truck at Geary Lake.
This is the defense of a guilty man. Terry Nichols used
witnesses that he knew were mistaken. He knew that what they
were telling you could not be true. The best example of that
is when he called Germaine Johnston, a victim of the bombing,
in to testify before you, the most disingenuous type of defense
that you could have. Germaine Johnston had been in the
building on the morning of April 19th, and she told you that
she was in shock, she was confused and traumatized, as anyone
would be by the bombing. But despite that, Terry Nichols
called her into this courtroom and had her tell you about how
she searched the streets looking for friends and family and how
she finally turned down an alley to look for her husband. She
recalls that when she walked down that alley, she saw two men
sitting near a Mercury at around 9:30 a.m., about 25 minutes
after the bombing, and that they talked to her and asked her
about what had happened and asked her how many people had died.
Terry Nichols knows that Mrs. Johnston could not have
seen what she said. He admits that Timothy McVeigh was
arrested in Perry, Oklahoma, 75 miles from the bombing scene,
75 minutes after the bombing. For that to be true, Timothy
McVeigh had to get in his Mercury Marquis and drive to Perry,
Oklahoma, immediately after the bombing to arrive at the same
time that Trooper Hanger arrested him.
No one is here to criticize Ms. Johnston. She was a
victim of the crime. But her recollections cannot be correct.
Despite knowing that and despite knowing that it contradicts
his own theory, Terry Nichols brought her before you to somehow
try and confuse you about what had really happened with Timothy
McVeigh on that day.
You know that Timothy McVeigh was alone because
Trooper Hanger arrested him alone in his Mercury Marquis after
10 a.m. on the morning of April 19th. So why did Terry Nichols
present that kind of defense to you? Again, he presented the
only defense a guilty man has. He tried to confuse you,
embarrass witnesses, and raise some kind of doubt about who was
involved.
He has no burden; but once he takes the burden to
present a case, you can study it and evaluate it just the way
you would the Government's case. And how can you look at the
witnesses that he presented? They fall in several different
categories.
One, we'll call the John Doe 2 category, Timothy
McVeigh's phantom companion in Kansas and Oklahoma City.
Geary Lake, where everybody sees a Ryder truck at
different times but almost nobody sees it twice.
DRMO, where almost anything can happen except seeing
Terry Nichols.
The Herington witnesses who showed you that Terry
Nichols was building an alibi, not building a life.
The witnesses called to impeach Roger Moore who proved
that no matter what else they think of Roger Moore, Roger Moore
got robbed.
The madman McVeigh witnesses, the people who said that
McVeigh had radical ideas and also told you that he wouldn't
stay friends with the people who didn't share those ideas.
And finally, the witnesses who confirmed that Michael
Fortier sometimes used drugs, something that the Government had
already told you during its case.
And what did you hear about these types of witnesses?
Let's start with the John Doe 2 witnesses. You've seen the
sketch. Everybody in America has seen the sketch of John Doe
2, including all the witnesses that the defense paraded before
you. They had seen the television coverage, the newspapers,
and seen the sketches of John Doe 2. Those witnesses told you
some other things.
Two of their witnesses, Mary Martinez and Sharen
White, told you at that time, everybody else wanted to get
involved and everybody claimed to have seen something. But in
an attempt to divert you from the overwhelming evidence against
Terry Nichols himself, they brought you conflicting tales which
could not possibly be true. According to Mary Martinez, John
Doe 2 is a fully erect Mexican midget who stood up in a Ryder
truck. Sharen White, convinced that Timothy McVeigh was
staring at her going 55 miles an hour. Shane Boyd, who told
you that it was some Hispanic male who was buying a Coke at the
Dreamland; therefore, he must be John Doe 2. Rose Mary Zinn,
who insulted everyone when she said the dark-colored man who
came into her store was John Doe and he was going to rob her.
To find the John Doe 2 that the defense presented to
you, we would need to have a morph machine. We need somebody
who's tall, who's short, who's muscular, who's thin, with dark
hair, long hair, Asian, Mexican, dark or light.
That names about three-quarters of America. The only
thing that the defense accomplished in proving to you -- is to
prove to you as a result of the media frenzy that followed the
Oklahoma City bombing, sightings of John Doe 2 were about as
common and about as credible as sightings of Elvis. Don't get
distracted by the sightings.
No one is telling you that Timothy McVeigh was never
with anyone else. That is not the issue here. The issue is
who is on trial. John Doe 2 is not on trial and Timothy
McVeigh is not on trial. This is the trial of Terry Nichols,
and this is the case where we evaluate the evidence against
Terry Nichols.
And if there were someone else involved, what evidence
has there been that anyone but Terry Nichols and Timothy
McVeigh bought the one ton of fertilizer on September 30th?
That alone tells you that Terry Nichols is guilty of the crimes
charged.
What evidence was there that John Doe 2 was involved
with the theft of explosives? You've seen evidence of Terry
Nichols, and finding him guilty of the theft of explosives is
enough showing that he agreed with Timothy McVeigh to bomb the
building to find him guilty of these crimes.
There was no evidence that anyone but Terry Nichols
and Timothy McVeigh were involved with the purchase of the
second ton of ammonium nitrate fertilizer on October 18th.
The same holds true for October 21 when Terry Nichols
and Timothy McVeigh went to Ennis, Texas, to purchase the
nitromethane.
The only evidence that we have heard in this case is
that Terry Nichols was involved with robbing Roger Moore on
November 5th, 1994.
And if this phantom of John Doe 2 were to be charged,
could we charge him with April 14 when Terry Nichols was called
by Timothy McVeigh right before Timothy McVeigh tried to rent
the Ryder truck? No. The only evidence is that Timothy
McVeigh and Terry Nichols were together, making their final
plans. Stashing the getaway car on April 16? Which
Mr. Nichols does not dispute that he was in Oklahoma City. He
and Timothy McVeigh were the only ones down there, planting the
getaway car.
And finally, on April 18th, 1995, Terry Nichols and
Timothy McVeigh were building the bomb to destroy the Murrah
Building and kill 168 people.
Any of those road stops, ladies and gentlemen, any of
those steps along the road to destruction are enough to convict
Terry Nichols of these crimes; but if you had any doubt in your
mind, any doubt whatsoever, it was erased when Mrs. Marife
Nichols took the stand.
The defense counsel told you to wait until the end to
hear all the evidence, and they were right, because it was the
last witness of the defense count -- case, Marife Nichols, who
made you absolutely sure that Terry Nichols was involved in
this plan from beginning to end. Marife Nichols told you Terry
Nichols and Timothy McVeigh were best friends. Marife Nichols
told you that Terry Nichols used false names. She told you
that the two men were together in 1994 and that all of the
coins in Terry Nichols' house belonged to him. She told you
that Timothy McVeigh had never been to her house in Herington;
that Terry Nichols had never scared her with a wig and ski
mask, and she told you that their family had been separated
more than they had been together. She had been gone for seven
months during the time of the conspiracy.
She told you herself that Terry Nichols returned the
oil filter on April 15 that belonged to Timothy McVeigh. She
told you that Terry Nichols had lied to her about going to
Omaha. She recounted for you the conversation with Josh
Nichols when Terry Nichols turned his back on him and left him
there on Easter Sunday. And she told you about the letter that
Terry Nichols had gotten from Timothy McVeigh the week before
the bombing.
She said to the best of her knowledge, Timothy McVeigh
had never called before April 17. And on the morning of
April 19, she had no idea where Terry Nichols was.
She even told you that on the day that Terry Nichols
spoke to the FBI, he was concerned about a fuel meter in his
garage as soon as he heard his name over the radio. He turned
and said, "I have to do something about that."
Marife Nichols told you that Terry Nichols gave her
money before they went to the police station and that only as
they were about to enter the doors did he finally admit that he
had lied about Omaha and that, in fact, he had been in Oklahoma
City on April 19 -- April 16, 1995.
And one small fact, maybe most telling about Terry
Nichols' story about building a life instead of building a
bomb, was when Marife Nichols told you that she had called to
arrange to leave the United States on the morning of April 21,
1995, to return to the Philippines. After being back with her
husband for just more than a month, she wanted to leave the
country and go back to the Philippines. Terry Nichols was not
building a life. He was building a bomb.
Over the past few hours this morning, we have reviewed
an avalanche of evidence. Beginning with the fall of 1994, we
know that Terry Nichols made a choice to quit his job and join
in this plan to bomb the Murrah Building and kill the people
inside of it with Timothy McVeigh.
The avalanche, the momentum of this evidence has been
apparent over the past few hours. When Terry Nichols and
Timothy McVeigh began on the road to destruction back in
September of 1994, they were together in central Kansas. At
each stop along the road, Terry Nichols made a choice, a choice
to participate in the plot to bomb and kill. He didn't just
happen to be Mr. Havens. He didn't just happen to rent three
storage sheds in false names. He didn't just happen to use the
Daryl Bridges phone card to obtain bomb components and he did
just not mistakenly rob Roger Moore.
Even at the end of the plan, the last few days of
April of 1994 (sic), Terry Nichols did not just run into
Mr. McVeigh by chance. He did not just go to Oklahoma City to
assist Timothy McVeigh without knowing what he was doing. Nor
did he do anything but make a purposeful choice on April 18 to
mix the bomb at Geary Lake. This wasn't a coincidence. Terry
Nichols was in it every step of the way.
When you all go back into the jury room to review all
of the evidence against Terry Nichols, you will see that there
is but one conclusion: Terry Nichols joined with Timothy
McVeigh to bomb the Alfred P. Murrah Building and intentionally
kill any federal workers and anyone else who was in that
building on the second anniversary of Waco on April 19th, 1995.
The avalanche of evidence that we have presented
against Terry Nichols can be displayed quite easily by just
looking at the time, the place, and the distance. This is a
map of America. From this, you can see the miles and miles
that Terry Nichols drove on the road to destruction to
accomplish his task.
Back in the fall of 1994, all across America, citizens
were carrying out their daily rituals, tending to their
families, and pursuing their interests with a sense of security
that no one from within their own borders would ever attack our
own citizens. Little did we know that in the middle of
America, in the middle of Kansas, Terry Nichols and Timothy
McVeigh decided to take action against the Government.
Look for a moment at this map. Look where Kansas is.
It's literally in the middle of America.
In the Heartland of America, in central Kansas in the
fall of 1994, no one thought twice about someone purchasing
4,000 pounds of ammonium nitrate. And why not? At that time,
people thought of Kansas as a place with friendly neighbors,
church picnics, and not having to lock your doors. No one
thought that central Kansas would be ground zero for a plan for
mass murder.
No one in Kansas suspected that Terry Nichols had
robbed a quarry and no one had any idea that he had rented all
those storage sheds in false names. But over the months in the
fall of 1994 and the spring of 1995, while citizens of the
Heartland trusted their neighbors, Timothy McVeigh and Terry
Nichols were deceiving everyone.
In response to this avalanche of evidence, Terry
Nichols is asking you to believe that he had no idea what
Timothy McVeigh was doing in the fall of 1994 or the spring of
1995. As many have said before, a picture is worth a thousand
words and if we take a look at a picture of Kansas, we can see
what was happening during that time.
Here in central Kansas, virtually all the activities
of the bombing plot occurred. You can see right here Junction
City. We know that's where the Ryder truck was rented on
April 17th.
Just due north and east, in Manhattan was where many
of the phone calls were made, including the contacts between
Mr. Nichols and Mr. McVeigh concerning the Roger Moore robbery.
Coming south, in Council Grove was where Mr. Nichols
rented the storage sheds to store the bomb components and the
stolen weapons.
Making a circle back around and south, in Marion,
Kansas, was where the quarry was robbed of the explosives that
Terry Nichols and Timothy McVeigh needed for the bomb.
And over here to the west, in McPherson, Kansas, was
where the 4,000 pounds of ammonium nitrate were purchased.
And in the center of all this activity is Terry
Nichols. Terry Nichols in Herington, Kansas. Right in the
middle of all the bombing activities.
Out of anywhere in America, ladies and gentlemen,
virtually all of this activity was occurring right around
Mr. Nichols. Terry Nichols was there not by chance and not
because of coincidence, but because he chose to attack his
country and kill his fellow Americans. In the face of this
simple but overwhelming picture, Terry Nichols asks you to
believe that he had no idea what was going on. When you
consider all of the evidence and you look at all the facts that
support the charges against Mr. Nichols, you will see one clear
picture. You will see that Terry Nichols knew exactly what he
was doing. You will see that Terry Nichols had a plan. This
was a plan that he believed in, that he was committed to, and
that he carried out.
Early on the morning of April 19th, the citizens of
Oklahoma, located just south of Herington, Kansas, had no idea
of what tragedy was about to befall their city that morning.
Helena Garrett rushed off to work to drop off little Tevin at
the day-care center in the Murrah Building, having no idea what
Terry Nichols and Timothy McVeigh had done in central Kansas.
Nor did Agent Luke Franey who had worked late into the night on
April 18th and had come in early on the morning of the 19th to
write up an arrest warrant. None of the people in the Alfred
P. Murrah Building, none of the innocent men, women, and
children had any idea what Terry Nichols and Timothy McVeigh
had planned for them that day.
As Timothy McVeigh drove south on I-35 towards
Oklahoma City from central Kansas and Terry Nichols was safe at
home with his family, far from the target of their massive
ammonium nitrate bomb, Terry Nichols waited. Terry Nichols
knew what was about to happen to Agent Cindy Campbell-Brown, to
Paul Broxterman, and Agent Paul Ice, Donald Leonard of the
Secret Service, Mickey Maroney, Kenneth McCullough, Claude
Medearis of the Customs Service, and Secret Service Agent Alan
Whicher.
Terry Nichols knew that many, many lives would be lost
in Oklahoma City on the morning of April 19th, 1995. Just the
way he planned it.
THE COURT: Members of the jury, we're going to take a
few minutes' recess here in between to give an opportunity to
rearrange things and prepare for hearing arguments from defense
counsel. And of course, during this time, you will continue to
keep open minds, recognizing, as I said, that you've heard only
from one side now on arguments, so please wait till you've
heard it all, including what I'm going to tell you about the
law. So we'll expect maybe five or ten minutes. Will that be
sufficient to rearrange things?
MR. TIGAR: Yes, your Honor.
THE COURT: All right. And we'll let you know when
we're ready to proceed. So again, please keep open minds and
avoid discussion of the case among yourselves and with all
others. You're excused now. Be ready in five or ten minutes.
(Jury out at 1:58 p.m.)
THE COURT: Are you going to divide the argument,
Mr. Tigar and Mr. Woods?
MR. TIGAR: Yes, your Honor. Yes, your Honor.
THE COURT: All right. Well, as I did with Government
counsel, you let us know then when we're ready -- when it is an
appropriate time to recess.
MR. TIGAR: Thank you, your Honor.
THE COURT: All right. We'll be in recess a short
time.
(Recess at 1:59 p.m.)
(Reconvened at 2:07 p.m.)
THE COURT: Be seated, please.
Ready?
MR. TIGAR: Yes.
(Jury in at 2:07 p.m.)
THE COURT: All right. Members of the jury, we'll
hear from the defense. Mr. Tigar.
CLOSING ARGUMENT
MR. TIGAR: May it please the Court, Mr. Nichols,
Counsel, members of the jury.
I want to thank you for listening to us, for taking
time away from your lives and work over the past several months
to listen to the evidence; and now I'm going to ask you one
more favor, if I may. It may be that you, after three hours
and a half or three hours and 45 minutes of Government
counsel's summation, looked inside yourself and said, well, how
in the world are they going to answer that? And I'm going to
ask you a favor. I'm going to ask you to let me start with a
clean page.
You know, I -- when my two older kids were younger,
sometimes they'd fight and I'd go into the next room and I'd
turn to John, and I'd say, "John, what happened?"
And he'd tell me some version, and then I'd turn to
Katie and I'd say, "What happened?"
And she'd start to tell me, and I'd start to interrupt
her, say, "Well, that's not what I heard."
And then I realized that I wasn't really being fair to
John or to Katie unless you heard each one of them out right
from the beginning before I tried to unravel whatever it was
was the difficulty. So I'm asking you that favor as Ron Woods
and I try to talk about the evidence that's been received here.
I'm going to talk for a while, Mr. Woods will talk for
a while, and then I'll try to sum up. But one of the things
that we're going to emphasize here is that we don't have a
burden of proof here.
The Judge is going to instruct you at the end of the
case that if there are two possible interpretations of the
evidence, you must of course choose that which results in an
acquittal. And throughout this talk that I'm going to have, I
may refer to things the Judge is going to say. Well, let it be
understood that we have some idea of what the Judge will tell
you. I'm going to paraphrase. What the Judge is going to say
is what the Judge is going to say. So you'll hear it from him.
But this concept of reasonable doubt will run
throughout. Another way, by way of introduction, is watch that
exhibit list. You'll have when you go to deliberate all the
list of exhibits. Now, some of the description of exhibits are
done by lawyers. The exhibits themselves are what's evidence,
not the description.
And then when you look at how to reconstruct what
happened, ask yourself, was that lawyer guessing, does that
lawyer have evidence, does that lawyer have evidence that
something happened, or is that just a guess, is that a leap, is
that speculation?
And I will say that when you look at the testimony of
the 92 witnesses that we brought, those witnesses were selected
by Ron Woods and me. If there's a personal attack to be done
here, which was made by the prosecutor, it is a personal attack
on us. We, as lawyers charged with a certain responsibility,
selected witnesses and we brought them here, just as the
Government must bear responsibility for the witnesses that they
brought and for what those witnesses did or didn't say.
We have this idea of reasonable doubt because it seems
as a country that it's served us very, very well. The people
who founded this country were no strangers to controversy, and
they were no strangers to social danger, having created some of
it, themselves. They knew that the surest and best way to
guarantee the liberty of citizens was that make sure if the
Government brought charges, they had to prove them. If there
was a doubt, there had to be an acquittal.
It must be difficult in this case, as I said in the
opening statement, to get -- to get one's mind around that.
The enormity of what was done in Oklahoma City that morning,
the sense of loss, the sense of devastation, of tragedy is so
great that there might be a temptation to overlook it. I'm
sure you won't, but there might be. After all, you are the
jury. The Judge will give his instruction; and after that,
you'll have the power. You'll have a power that is unknown in
any other civilization in the world to be given to a group of
citizens: the power to decide. That shows how important this
is. More important, too important for me to decide, too
important for the prosecutor, too important for the Judge.
It's for you.
And having lived and taught as a law teacher and
practiced some in five countries, where in every one of which
except our own this system doesn't work, they don't have it, I
think that we appreciate on our side of the aisle the power
that you have in your hands and the responsibility.
The evidence in this case -- the Judge is going to
tell you about it and tell you about how to choose when it
seems to point both ways. Circumstantial evidence -- that is,
evidence that somebody checked in a motel or made a phone call
or did this, yes, even fingerprint evidence as we'll discuss --
that circumstantial evidence, Sherlock Holmes once told Watson,
is kind of like a stick on the ground. If you stand here and
look, it seems to point there just as sure as could be; but if
you walk around the other side and look, it points to exactly
the opposite direction.
So let me -- let me begin. During this summation,
we're not going to use any demonstrative evidence; that is to
say, we're not going to use any charts or diagrams or
summaries. Why not? Because I tell you frankly that those
charts or diagrams or summaries can mislead you, because they
represent selections by lawyers, not in bad faith, but as
advocates, trying to advocate a position, as to what you ought
to pay attention to.
We're going to try to show you some of those exhibits
that you'll have the opportunity to look at. For example, do
you remember during the testimony of the witnesses about
Kansas, when you saw pages from -- pieces from the Yellow Pages
and arrows and phone calls and so on, all being made? These
were demonstrative exhibits, those were charts. And you saw
some other charts and diagrams of phone calls. Well, in your
jury room, when you go to look, you'll have Government Exhibit
553. That's every single one of the 600 and -- let me put my
glasses on here. I thought it was 684, but I'm wrong -- 685
calls made on the Daryl Bridges telephone card, every single
one, so that you can look at them.
Now, you recognize that, as the man said from The
Spotlight company, that they might have missed some, their
computer could miss some. You recognize if you see a 3-second
call, that 3 seconds is a tick in there, so maybe it was 6
seconds. It might even be zero seconds. There could be a
mistake there. But that summary shows you all the calls that
the Government is able to trace.
And why is that important? It's important because the
demonstrative exhibits the Government showed you had somebody
calling from Terry Nichols' house in Marion, Kansas, to places
that might sell racing fuel. But they didn't show you page 51,
which is for October 7, 1994; and here from the home of Michael
Fortier are calls to VP Racing Fuel and Coogle Trucking made at
a time when Terry Nichols was not there, made to VP Racing
Fuels.
Now, you've had a witness from VP Racing Fuels -- we
from the defense called him -- who was Glynn Tipton; and what
did he say? "I got a call," he said, "and then thereafter, the
man who called and said he was John showed up at a race and
came up to me and that he was Tim McVeigh and he wanted to buy
racing fuel."
So if all you had were calls that supposedly were made
from Terry Nichols' house, you might get the idea that maybe
Terry Nichols might have some knowledge of that. Of course, if
you looked at the whole pattern of calls that were made during
that time that McVeigh was staying, you would see that even
that is an inference that wasn't supported by the evidence.
And why not? Because all of the calls were made during times
that Mr. Nichols were expected to be out working for
Mr. Donahue. As soon as it gets close to the noon hour, the
phone calls stopped, and Mr. Donahue says and Marife Nichols
says that Terry Nichols worked pretty much from 8:00 in the
morning till the sun went down.
Is there another illustration of how the overuse or
misuse of an exhibit might lead you to the wrong conclusion?
Well, I think there is. Let's look in 553 somewhere.
Here is September 24, 1994. This is a call from
Mr. Nichols' house in Marion, Kansas. There it is, Terry
Nichols' house, but the times are 11:59, and then it stops and
starts up again at 1:38. And who's being called? William
McVeigh, Greg Pfaff, Brooklyn Deli, Brooklyn Deli, Brooklyn
Deli.
Now, Greg Pfaff, who also owns the Brooklyn Deli, came
in here and testified. Who called Greg Pfaff? Timothy McVeigh
called Greg Pfaff. Did he say anything about Terry Nichols?
Did he say anything about a plot? No. Timothy McVeigh called
Greg Pfaff. And what did he call him for? He wanted to buy
det cord from Greg Pfaff. So looking at these records and
putting it together with the witnesses who testified who can
remember about the calls, you can see who did what. No leap of
faith is required. No imagination is required. No speculation
is required.
Here's another one. Here is from 1:51 p.m. on the
28th of September, 1:51 p.m., the home of Terry Nichols, but
it's the afternoon. Terry Nichols is working. Who gets
called? Rosewood Signs, Tonawanda? No, no. Who is Rosewood
Signs in Tonawanda, New York? That's Tim McVeigh's friend,
Dave Darlak. And Tim McVeigh is looking for racing fuel. So
what we ask you to do, if you will, is to consider the real
evidence, not the charts, not the summaries, not some
advocate's view, not my version, even. I don't ask you to take
it from me. Don't take anything I say or that Ron Woods says
without looking in the evidence to see if it's there and making
up your own mind about whether it fits.
There's another example of that. You might have
wondered why in the world somebody would ask Agent Jasnowski,
"Did you find something in Terry Nichols' trash?" Well, you
found out.
Here is Government Exhibit 352, which in a chart, was
put up on here as though that's a map of downtown Oklahoma City
that was found in Terry Nichols' trash. That's what counsel
said. Well, let's take a look at that assertion. First, are
there fingerprints on it? No. Yet it was wadded up and bound
up and so on. There aren't even finger smudges on it. Does it
match the kind of diagram that Terry Nichols made when he drew
a chart of his house? No. Is there handwriting on it? Yes.
Does it match Terry Nichols' handwriting? No.
And most important of all, Government counsel referred
to this, but I'm going to turn it around, zoom in. This says
18th. There is no 18th Street in downtown Oklahoma (sic). All
the streets are 5th and 6th and 7th. Then over here it says
24. There is no 24th Street in downtown Oklahoma (sic). And
you'll have this. It's Government Exhibit 352. You'll have it
in evidence. You were told that this deal, whatever it is,
which is not in Terry Nichols' handwriting and which doesn't
have anybody's fingerprints on connected with the case and
which was found in a trash can in an alley behind his house all
wadded up, somehow is a route.
Well, first, here's an arrow. Look right here.
Here's an arrow, but it only goes one way. The street happens
to be a two-way street. Here's another arrow. It goes one
way. That street happens to be a one-way street, according to
the Government. So one arrow means two ways on one, but it
means one way on the other, if we take the Government's
interpretation.
There's more.
Here they say, follow the arrow around and there's a
place and that's supposed to be, they say, a sign on their deal
that said that's the Murrah Building.
Well, the problem with this alleged routing is -- and
you'll see it when you look at this exhibit. I know it's hard
when you see it on the screen. But isn't there something
missing here? How about the Regency Tower building, which
is -- would be off the map if this was a map of downtown
Oklahoma City. And how do you know that the Regency Tower
building was the real route? Because a television camera took
a picture of the truck.
Doesn't work. Doesn't work. The evidence doesn't
meet what the lawyers claim for it.
Now, when you look at the telephone card exhibit --
that's Government Exhibit 553 -- you will see 685 telephone
calls. You'll see that it was purchased in the name "Daryl
Bridges"; and talked about this in opening statement, way back
in 1993 before anybody says there was a conspiracy to do
anything. It was bought at a time when James Nichols was
hosting in Michigan. At his house was living Mrs. Nichols,
Marife, and Terry Nichols; and Timothy McVeigh had come there
and would stay and work for a while and then leave.
You can start with the very first call that
Mrs. Nichols was shown. She called the place in Palm Desert
where her aunt was working, and that was done while they were
leaving the Nichols farm on their way back across the country.
Then you can start to see Timothy McVeigh using it to make
calls of his own. You can see 117 calls, which represents by
far -- even though there's 685 -- the majority of the time and
a majority of the money, to the Philippines. When Mrs. Nichols
was out of the country, this was the card that Terry Nichols
used to keep in touch with her. The Nicholses and the Torres
family -- that's Marife's parents -- they don't have a phone.
So every phone call you see to the Philippines is somebody down
the street, one direction or another, where Terry Nichols would
call or somebody else would call to get a hold of Marife and
say, "Can you get them to the phone?" And you'll see those
calls as well as attempts when The Spotlight card didn't work
to make the call when it didn't go through.
You might notice, then, that this document, Government
Exhibit 553, will help you to see what Timothy McVeigh was
doing when Terry Nichols was out of the country, because you'll
see the last call Terry Nichols made on November the 21st,
1995 -- 1994, and you'll see him come back to the United
States.
What happens to The Spotlight card? Calls 222 through
300 on The Spotlight card show you Timothy McVeigh calling
David Paulsen over and over and over again, and why? David
Paulsen's testimony was read to you because he was unavailable
as a witness. But what he said was that Mr. McVeigh was
calling him. Mr. McVeigh wasn't saying, I've got a friend
Terry Nichols. Mr. McVeigh wasn't saying anything except,
"I've got blasting caps I want to sell you for between 3,000
and $5,000. I want to trade TNT for those blasting caps. How
about it."
And Paulsen went so far as to arrange a rendezvous
which he says he never intended to keep.
Then you see all of the calls made from the Nicholas's
house. Why is that significant? It tells you something about
Timothy McVeigh. I mean it was represented that it was unusual
for Timothy McVeigh to stay with people. Miss Nicholas pointed
out -- she said, "Well, he came. Kevin was neighborly. Kevin
went and got him when his car had problems and towed it back.
Here's a picture of the car." It's all right for the
Nicholases to be neighborly when somebody called, apparently,
and then Tim stayed for a month. Stayed for a month. They
weren't particularly good friends, but I guess we've all had
houseguests like that. But he sure did outstay his own
welcome. And while he did so, you can see he used the
telephone over and over and over again, principally to call
David Paulsen and other sources of supply. This is at a time
when Terry Nichols is in the Philippines.
So once again, I urge you to look at this evidence
because it's going to help you see who was where when and what
they were doing.
The next thing that I want to ask you to look at: The
Judge is going to instruct you -- and you'll have copies of the
Judge's instruction in this case. He's going to tell you the
elements of the offenses; that is to say, what the Government
has to prove beyond a reasonable doubt. And he'll tell you
that if the Government's proof fails as to any element of any
offense or charge, you have to acquit as to that. He'll also
talk about reasonable doubt, and he'll give you some
instructions on how to view the evidence.
This is not . . . it's not an unguided determination;
that is to say, you have all the power. No question you've got
the power. But you also took an oath. I'm not insulting you
when I say that. I took one to be a lawyer. You took a
couple. You know, that's what we do.
And in the instructions, the Judge will say in
essence, when you get back to the jury room, there's certain
ways to look at certain witnesses and certain kinds of
evidence. For instance, he'll tell you how to view the
evidence of Mr. Nichols' encounter with the FBI during the
nine-and-a-half hours. He'll tell you how the law makes
allowance for somebody who might be in unfamiliar surroundings
during those nine-and-a-half hours, what you're supposed to do
with that. You know, I'm the last person in the world that has
any right to upstage. Those instructions will be there and
you'll have them.
The other thing the Judge is going to tell you is when
you have somebody like Michael Fortier, there are special rules
that apply to what he says; and with very good reason indeed.
So let me turn to Michael Fortier. Michael Fortier
came here. He admitted that he never heard Terry Nichols say
I'm going to blow up a building. He never heard Tim McVeigh
say that Terry Nichols was going to blow up a building at a
time when Terry Nichols was standing close enough to hear it so
that he could deny it.
I wonder what you have to do to have a prosecutor
stand up and call you a truthful person. We have heard the
prosecutors tell you that you shouldn't believe anybody who
didn't come forward, having seen a Ryder truck at Geary Lake,
until the FBI set up a roadblock and then stop people and ask
them. Well, what is the purpose of a roadblock to interview
witnesses if, after you've interviewed all of them, you're
going to say that because you stopped at the roadblock, that
you're not to be believed?
You have heard the prosecutor tell you that if
somebody had the opportunity to read something in the newspaper
and then later came in and testified, that you can't believe
them as much because, after all, they might have read it in the
newspaper.
You have heard the prosecutor say that you shouldn't
believe somebody because, after all, everybody might want their
moment of fame and maybe they're doing it for that.
What do you have to do to gain the prosecutor's
approval as someone whose words can be believed by a jury?
Well, let's see what Michael Fortier did, because the
prosecutors have said that you're supposed to believe Michael
Fortier. Now, Lori Fortier did not testify. That's all right.
They have the option.
And I want to say as we go through this that the Judge
is going to say over and over, we never -- we do not have a
burden of producing any evidence or calling any witnesses. Not
our burden. It's their burden of proof. And if somebody gets
back in that jury room and says to you, well, by golly, why
didn't the defense explain this, why didn't the defense explain
that, I hope that you'll be able to turn to them and say, well,
wait a minute, you've got it backwards, the question is can the
Government prove this and did they prove it beyond a reasonable
doubt.
Michael Fortier is the only witness who says he ever
heard anybody say that they wanted to bomb the Murrah Building.
As I said, Terry Nichols wasn't there.
His testimony was bought and paid for. It was
bargained for, not with money but with a coin that only the
Government has the ability to print and to hand out; and that
is immunity from punishment. Not immunity from all punishment,
but you heard him say that he expected to be out -- the
guideline sentence for him, he doesn't know what it will be,
but his guideline sentence is under three years. You heard him
say that he had seen on the television and the radio that there
was a death penalty involved here maybe. You heard him say
that it was the most important thing in his life to go home to
his children.
This is a man who you also found out who would lie on
an application simply that he could own a gun.
On redirect examination, when the prosecutor asked
him, "You didn't have any barrels, did you," he said, "No,
except for the three 55-gallon barrels that I had in back of my
house." Barrels that are never tested by the Government.
Nobody cut a piece out of his and sent them up to Tony Tikuisis
in Canada. This is a man that had this Primadet that
Mr. McVeigh gave him that we'll talk about more when we talk
about fingerprints -- this is a man that had guns that
Mr. McVeigh gave him to sell. This is a man that has ammonium
nitrate. This is a man that has blasting caps. This is a man
who helps Mr. McVeigh get false ID. This is a man who heard
about the plan. This is a man who, contrary to what the
prosecutor said, never told you that there was a test blast
involved, never used those words. He said Tim and Terry were
going out in the desert, said they were going to do something,
never called it a test blast. This is a man who was offered
$10,000 and then lied to by Tim McVeigh 'cause he never got his
10,000 to drive and case the building and get the guns, this is
a man who says he saw Storage Unit No. 2 in Herington, Kansas;
and when the door was opened, he looked inside and all he could
see were mattresses, mattresses.
Well, he cleans up pretty good. You saw his picture
before. But even after they cleaned him up, I asked him, I
said, "How about this fellow Jason Hart? Isn't he your
dealer?"
"No, he's not my dealer. I bought from him a few
times. He's not my dealer." Mostly Hart gave it to him. And
then we had Hart's testimony summarized, and he said, "No, no.
I was his dealer, and I stopped after a while because he was
using more than he was selling."
Now, his lies to you on that score were not the first
lies that Michael Fortier told you. Let's take a look at how
Michael Fortier was made into a witness to come before you.
Marine Corps builds men. The FBI builds witnesses.
First, in the wake of the bombing, on the 21st of
April, 1995, according to Patty Edwards, whose testimony was
presented to you through a summary, an affidavit that she had
signed, Mr. Fortier came out of his house and went next door to
James Rosencrans's house, another one of his dope-dealing
friends. You remember Rosencrans. He and Michael Fortier had
been up all night the night of the 18th and 19th and saw the
pictures of the Oklahoma City bombing shortly after it happened
because they hit the wrong button on their video game that they
had been playing and it switched over to the regular
television. On the 21st, Fortier goes over to Rosencrans's
house, and Patty Edwards hears him say, "Tim's the one who did
it. Tim's the one who did it."
Now, after that, Michael Fortier begins to hear his
name, and he begins to get a lot of newspapers. We're not
talking about somebody who heard about a terrible event and
bought all the newspapers at their local store. We're talking
about a fellow who for days and days and days and weeks and
weeks and weeks is able to follow on newspapers and television
exactly what law enforcement is doing, who's been arrested,
what the evidence is, all of that information, gathering it bit
by careful bit.
And what's he doing while he's gathering all the
information bit by bit? Is he going to the police station to
tell them what he knows? Well, he's going to the police
station, but he's bragging to his friends that he stands toe to
toe with the FBI agent and tells them things, and on his phone
that the FBI agent had a tap on using all those colorful
methamphetamine-esque language and four-letter words and so on.
And then as he talks, he begins to see that there's a future
for him in this, not a future going to law enforcement and
telling them what he knows, not a future telling about some
storage shed in Arizona so they could maybe test that in any
kind of a hurry, not a future telling about any guns in his
house, not a future telling about Primadet, not a future
telling what he knows about Tim McVeigh because he wasn't
telling that. No, he's got a future.
And he told you what that future was. "I'd sit there
and pick my nose and flick it at the camera, flick it and then
kind of wipe it on the judge's desk. Yeah, really, ha-ha; or
'Wait, just a second, pull my finger,' to the lawyer asking me
questions, 'Come here, pull my finger. I'm the key, the key
man, the head honcho, Colonel Klink.'"
Well, you heard the tapes. I don't have to replay
those, and I don't intend to. This is a man who speculated
about getting a cool million. This is a man who had bad words
to say about CNN because he (sic) didn't pay them (sic). This
is a man who talked about book contracts and movie contracts
and all the rest of it. And this is a man who the Government
says is the witness that you're supposed to believe. Because
why? Because he's the only one who ever says that he heard
Timothy McVeigh say, "Yes, I'm going to go and bomb that Murrah
Building." And he's the only one who ever heard anybody
attribute to Terry Nichols the desire to bomb the Murrah
Building, not talking about heard Terry Nichols in some kind of
political talk, however radical.
That's another thing the Judge is going to instruct
you. Political talk, I can stand out here 500 feet from this
courthouse and say from now until next Tuesday that "I think
the Government should be overthrown." And that's a part --
that's a part of America. And I can stand over in the City
Park and I can say that "I think there should be civil unrest."
I can even say that "I hope that somebody that took -- that has
a gun might use it." You know, that's a part of the tradition,
the history of our country.
No, we're not talking about that sort of thing. You
know, back in 1800, John Adams, who was the President of the
United States, was on his way up to a meeting in New Hampshire
to dedicate a ceremonial cannon, and there was a guy that said
he hoped it would go off and scorch the president's pants.
Well, that fellow was prosecuted, and the Senate of the United
States was so outraged, they almost impeached the judge that
had convened the grand jury.
No. In America, we're used to wide-open discourse;
that's not what we're talking about here. We're talking about
the fact that Michael Fortier was presented to you as a witness
who says he heard something. Now, in order to believe what
Michael Fortier says, you have to believe two people. One is
that Michael Fortier ever heard it. And second of course, you
have to believe that Timothy McVeigh, the person he says said
it, was telling the truth.
Well, what motive would Michael Fortier have? Well, I
told you about the conversation Michael Fortier admitted that
the FBI told him on May the 17th, 1995. "We don't need you to
get Tim McVeigh."
What was the relationship between Fortier and McVeigh?
Why was Fortier so anxious to ingratiate himself once he felt
the noose tightening? Well, McVeigh had lived in his house for
weeks and weeks and weeks, repeatedly. McVeigh had made free
with his phone. The two of them had called Walter Bassett
about forming a militia.
When Fortier was first asked: "Who might have been
accomplices to Timothy McVeigh," he said, "Well, Bob from
Arkansas, or James Rosencrans."
Now, I'm not going to spend a lot of time talking
about Dr. Michael Abrams. You heard him. He's treated
thousands of patients with methamphetamine usage. He can tell
you what the symptoms are. And the Judge is going to tell you
that you look at the testimony of somebody who uses dope or
uses methamphetamine, this particular drug, this drug that
keeps you up all night, this drug that causes you to
hallucinate, this drug that causes your perceptions of reality
to be distorted.
He does tell us -- and we know because we can
corroborate it -- Timothy McVeigh lied. He helped him get
false ID. Timothy McVeigh, he says, he thought was a thief.
Timothy McVeigh, he says, wanted to max out credit cards and
not pay them back. Timothy McVeigh was a junk-food addict.
Timothy McVeigh used the Fortiers as a place to stay and a
place to use their phone. Timothy McVeigh, Mr. Fortier knew,
had tried to recruit Rosencrans. Now, that's corroborated by
Rosencrans himself, who says that McVeigh wanted Rosencrans to
do some driving for him.
Don't make a mistake here. Who is it that's being
selective? Michael Fortier says that Timothy McVeigh says that
he and Terry wanted to do something violent, blow up a
building. Are we supposed to believe Timothy McVeigh when he
says that and not believe everything else Timothy McVeigh said?
What is there that corroborates Mike -- that version of events?
Nothing. Nothing. Not even any evidence that Terry Nichols
was in a position to hear any such things, had it been spoken.
And what is it that contradicts it? What contradicts
it is that in March of 1995, Fortier says McVeigh was getting
desperate. How desperate? So desperate that Fortier and
Mrs. Fortier were scared and Michael Fortier carried a gun
whenever he went to see him.
How desperate? He tells Michael Fortier: "Terry
Nichols won't go through with it; I'll have to force him to do
it." "Terry Nichols won't go through with it; I'll have to
force him to do it." Well, if you're going to take what
Timothy McVeigh said to Michael Fortier, let's take the whole
thing.
And there's something else that you can use as an --
in an effort to find out who's telling the truth and who's not.
Let's go back to Government Exhibit 553, page 65, and watch
what happens.
Do you remember what Michael Fortier told you about
sometime before October 31? He said Tim McVeigh came by his
house and said, "I'm waiting for Terry."
"Doggone it, he's not here."
The prosecutor referred to this episode in closing
argument. "When he gets here, you tell him to take the stuff
out of the shed and meet me in New Mexico." Michael Fortier
told you under oath that was at 20 minutes after 4. It was
about 4:00 when McVeigh left, and it was about 20 minutes later
that Terry Nichols arrived. And Fortier says, "I gave him a
key that McVeigh had given me."
Here's a call in the morning. This is the 29th of
October. It's the only relevant date. Here's a call in the
morning at 9:52. Michael Fortier's house to Lana and Leonard
Padilla. Now, Lana Padilla is Terry Nichols' former wife.
It's a place where he sometimes would stay when he was visiting
his son, Josh.
Then there's another call from Las Vegas, Nevada, to
Michael Fortier's house. The only person in Las Vegas, Nevada,
who ever is shown to call the Fortiers' house, because he was
at that time working with Timothy McVeigh in the gun show
business, is Terry Nichols. It's the only one.
And that call is made at 5:58 p.m. Central Daylight
Time. And Las Vegas is 90 miles away from Kingman, Arizona.
There's no way that Michael Fortier's time works, and
the telephone calls prove it.
Michael Fortier? Michael Fortier? I asked him:
Michael -- or Mr. Fortier, you went to the FBI, you stood on
the balcony of the motel in Oklahoma City. You had an
epiphany, sir -- I don't know that he knows what an epiphany
is, so I didn't ask him if it was a epiphany; but he had some
kind of a conversion -- and you told the FBI that you wanted to
tell your story. And then you went back in the room and you
talked about it some more, and the FBI agents left afterward.
Then they came back, and then you turned to your wife and you
said, "You tell yours first," and he told his. And when he
told his, he admitted he didn't put Terry Nichols in it.
Here's a guy who claims to have had a conversion.
Conversions should be made of sterner stuff. And when
asked, he said: Well, I decided I'd keep on lying about that.
Michael Fortier. The Judge is going to tell you that
a reasonable doubt is a doubt that would cause you to hesitate
in the more important affairs of your everyday life. Words
like that. Let's think about it. You open your door. There's
Michael Fortier. "Good morning," you say.
"Good morning," he says. "I'm Michael Fortier.
There's been a car accident down at the end of the street. You
really ought to go look."
"Well, I'm sorry, sir, but I've never met you before.
And besides that, I've got my kids here."
"Well, that's all right. I'll take care of your
kids."
Well, that's an important decision. "Tell me a little
bit about yourself."
"Well, I certainly won't fall asleep while I'm taking
care of your kids, because I've been up for three days under
the influence of methamphetamine, and I have actually learned
about a plot to blow up the Murrah Building. But I haven't
really sold my story on that yet. I'm waiting for my million,
which means I'm a solid citizen, because when I get my million,
I'll be a qualified person. I know I'm talking a little fast,
but it is the influence of the drug that I am taking."
And I don't have to go through the rest of the
conversation. Would you do it?
In that important decision as to whether to leave your
house for 20 minutes with that guy in charge of your kids, I
submit, members of the jury, that no sensible person would do
it. Hesitate in the more important affairs of one's everyday
life indeed.
And yet, you know, he hasn't been charged with
conspiring. He's got the ammonium nitrate. He's got the caps.
He heard about it. The Government said they were going to
charge him with every single thing he did. And he's not
charged with conspiring. Neither is Kevin Nicholas, of course,
in whose house McVeigh stayed for all of that time.
Did Mr. Nichols ever say he was going to rob anybody?
No, sir.
Did he ever say he'd robbed anybody?
No, sir.
Did Mr. McVeigh ever say within earshot of Mr. Nichols
that Mr. Nichols was going to rob anybody?
He did not.
Did Mr. McVeigh ever say within earshot of Mr. Nichols
that Mr. Nichols had robbed anybody?
No, sir.
Mr. McVeigh never said in earshot of Mr. Nichols that
Mr. Nichols planned to explode anything in a way that was going
to hurt anybody; correct?
That is correct.
And Mr. Nichols never said that he was going to
explode anything in a way that was going to hurt anybody;
correct?
Correct.
That's just a part.
I want to spend a few minutes and talk about the
scientific evidence. The Judge is going to tell you that in
many, many cases, we hear from scientists. We hear from people
who are experts, and you're free to disregard their testimony
if it doesn't make any sense. And I want to talk a little bit
about that, because when I'm through with topics -- and Ron and
I have talked -- then I want to put together some chronology,
but I want to talk about the science because the Government
spent so much time on it.
Now, we all know what science is. In our daily lives,
we know what science is. We rely on it. I mean, for heaven's
sake, we go to the doctor. The doctor takes a blood sample or
a urine specimen. Hey, we rely -- hey -- the container's clean
and it's the right kind of container. The needles are clean;
we rely on that. The sample is handled in a way to make sure
it's not altered before it gets to the lab, because if it's
mishandled, then we might be called back. We rely on the lab
to do a good job, to handle it right. So that's a part of what
we think of as science.
Then there's a whole 'nother part, and that's science
is supposed to assure us that when we see something, it's not
accidental. All right? That is to say that it is based on
something. If you step on a crack, you'll break your mother's
back. Well, maybe you will and maybe you won't. If a
scientist wanted to prove that if you step on a crack you'll
break your mother's back, we'd have to observe many, many
mothers and many, many people stepping on cracks, and then we'd
have to have some -- some scientific, reliable statistical way
to show that those two events were connected to each other.
It is not our burden to disprove anything. When a
prosecutor tells you that somehow we are to be taken to task
because, well, we didn't present evidence about who makes a
barrel, we didn't present that, that's got it exactly
backwards. And I am going to make a claim to you now, and then
I'm going to try to show where the evidence will support it
when you go back there.
And the claim is this: that the Federal Bureau of
Investigation laboratory and every other scientist and expert
brought before you flunk every test. Every conclusion that
they have is either flawed or meaningless; that the
observations and measurements in every case are filled with
serious doubts.
Now, let's begin and see if I can show that, to show
those doubts. Let's start with the something that ever since
we read "Dick Tracy" in the Sunday comics we knew was real.
That's fingerprints. The science of fingerprints is a
well-established science. But if you claim more for your
science than it's worth, then you reach wrong conclusions.
First you want to ask: When and where was the
fingerprint left, when? We've learned that a fingerprint once
deposited on a porous surface can last for years. We also know
that if I take a fingerprint and put a finger imprint on a
piece of paper and then I move the piece of paper from one end
of the country to the other or from some other place, well, the
fingerprint stays there. We need to have some witnesses to
show us where that thing went.
Now, in a usual case, we can trust the fingerprint
examiner. I'm going to talk about Mr. Hupp and point out
there's some problems there.
Now, there's another thing we know, before I start.
Mr. Hupp said that some people are dry people: They don't
leave fingerprints. Mr. Nichols is not a dry person. When he
touches things, he leaves fingerprints. Mr. McVeigh is not a
dry person. When he touches things, he leaves fingerprints.
And so it's the presence, the placement, the absence, the
location that we got to look at here.
Now, if you had to count the minutes for the -- in
terms of time taken in summation, you would say that the
Wal-Mart receipt would perhaps win the prize as the exhibit
that the Government counsel wanted you to think about most. So
I want to look at what Mr. Hupp did with the Wal-Mart receipt.
The Wal-Mart receipt -- I'll put this up -- is Q772.
Wal-Mart receipt dated 4-13. See that one? That's what it is.
It's called "Q772" in FBI Laboratory terminology. Now,
Mr. Hupp testified to you that there were latent fingerprints
of Timothy McVeigh, ten developed on certain items. Ten.
There's ten. Turn the page. Two were on Q772, the Wal-Mart
receipt. Got it?
Then he says there are ten for Terry Nichols, three on
Q772, the Wal-Mart receipt. That's his report in evidence as
Defense Exhibit E129.
Here, E130 -- you may remember this
cross-examination -- is Mr. Hupp's chart. He makes this in the
laboratory. Here is Q772. And here is Terry Nichols' name.
What do we have? We have four Terry Nichols fingerprints and
one Timothy McVeigh fingerprint, for a total of five.
Terry Nichols and Timothy McVeigh were sharing many,
many things, but fingers? I don't think so, members of the
jury. How is it that Lou Hupp tells -- makes his conclusion on
the 20th of May that there are four Terry Nichols fingerprints
and one Timothy McVeigh fingerprint? By May 24, he's typing a
report that says no, it's three and two. And then he's coming
in here and testifying that it is three and two. Surely,
surely, just an accident. A man with so many years experience
as Mr. Hupp wouldn't make an elementary mistake like that.
Must be one of those, you know, bonehead errors that just
creeps into everybody's things, like making a mistake in your
arithmetic.
Well, let's take a look. Here's Q775, a Boots
U-Store-It agreement for Unit 37 bearing the signature "Ted
Parker." And sure enough, he's got two on Q775 for Terry
Nichols. That's his report.
But in his lab notes, four days earlier, Q775, he's
got one for Terry Nichols, for a grand total of one.
Now, we know where Terry Nichols was between the 20th
of May and the 24th of May, 1995. He was not in Mr. Hupp's
laboratory putting extra fingerprints on Mr. Hupp's exhibits.
And yet Mr. Hupp comes in here and essentially tells you that
the final report is one he can rely on and that his lab notes
made at or about the time are meaningless.
Is that the only one? No.
There is a storage unit receipt -- rental. Now, this
is a very important storage unit rental. It's the one for
Shawn Rivers. Watch the first name, watch the last name.
Shawn Rivers. That's Timothy McVeigh. He's the one that goes
into Herington. He rents a storage unit, it's Unit No. 2 in
the Herington Industrial Park. He rents it under the name
"Shawn Rivers." It's the one that has the cement floor with
the rust marks on it, which I'll talk about in a little bit.
That's the one he's got. So that's an important document.
That is 770 -- Q770-1, the storage unit agreement.
And he says he's got eight fingerprints on it in his report.
He's got eight. And you can look on the previous page and see
that those are eight out of the ten of Timothy McVeigh.
Four days earlier, on Q770-1, he's got six prints.
Six. For a total of six. He comes in here and he testifies,
Well, it's eight.
What's going on here? What's wrong with a Federal
Bureau of Investigation with 35 million fingerprint files in --
on hand and plus 20 -- of the criminal ones and 20 million
more, and the agent that they send for the most important case
in the FBI's history can't count fingerprints?
Members of the jury, that is inexcusable. But it is
not incomprehensible. It can be comprehended because, members
of the jury, I submit that the evidence shows what's going on
in the FBI fingerprint laboratory in this case. Mr. Hupp, when
he appeared the first time, told us that he had 1,034
unidentified latent fingerprints. 1,034. He had a bunch more
palm prints and other impressions. But let's take the
thousand-34.
At the time that he started his examination, the FBI
knew that Lea McGown had heard several people talking in
Timothy McVeigh's Room 25 at the Dreamland Motel on Friday or
Saturday night. Lea McGown is another one of these selective
ones. The Government wants you to believe -- and it is true --
that she saw Timothy McVeigh leave the hotel with the Ryder
truck early one morning. They want that evidence. Hard to
know why they want it. They didn't call her. We did. But
they can have it.
But they don't want to accept the evidence that she
heard of several people in Mr. McVeigh's room with Mr. McVeigh
being next to the window. They also had had an opportunity to
talk to Jeff Davis, who delivered the food. I'll talk about
him in a while. They had also gone to the Ryder Truck Rental
place where Vicki Beemer -- and Ron Woods is going to talk
about this -- had seen two people. So you've got 1,034
unidentified prints. That's taking Mr. Hupp's words.
You know, Mr. Hupp's fingerprint counting ability is
not his strongest suit. But they decided not to use their
computer. They decided not to investigate the possibility that
Lea McGown was telling the truth; that there was somebody else
in that room, the possibility that Jeff Davis was telling the
truth.
Well, why not investigate it? You knew that it took
two people to run a barrel of nitromethane up a ramp. You knew
that mixing the bomb alone might not be possible or might not
be easy. They knew that it was a gray pickup and not a blue
one out at the lake. So it didn't match Terry Nichols' pickup
truck.
Mr. Hupp, when he appeared here first, said: I didn't
submit these fingerprints to my computer to try to retrieve out
of my 35 million. I didn't do it. It was to be done later.
Remember that? Going to be done later.
And then later it was decided: We've solved the case;
we don't care anymore.
That's not good science, and it's not good law
enforcement, and it's not fair, and it's not right. Mr. Hupp
came back. He said, Well, out of the 25 prints at the
Dreamland, only one really was suitable for putting in my
machine. And besides that, I didn't really say it right the
first time. I'd have to know what state -- each state is a
separate search. Each race type is a separate search. You
remember all that he said.
Well, so what? What else does he have to do for a
living? It's been two-and-a-half years, and nobody ever
submitted a single one.
And then I asked him, Well, suppose you didn't want to
use the machine, sir. Did you ever take a look at the
thousand-34 and see if any of them matched each other? That's
called an intercomparison. You don't need a machine for that.
All you need to know is how to identify a fingerprint and how
to count. And you can ask somebody if you have trouble
counting.
But he didn't do it. With all of their resources,
they chose not to see if fingerprints at the Ryder rental place
would also match one at the Dreamland; if fingerprints of
Michael Fortier's stuff would also match one at the Ryder,
would also match one at the Dreamland; if fingerprints on
things that were recovered here and there, literature, would
also match. They chose not to do it.
And they had every -- they have the burden of proof.
They have the responsibility, with enough agents to do 30,000
interviews in the field and to field a team the like of which
law enforcement has never seen. They had the resources and the
power to do it.
Now, there's been more talk about the Primadet --
excuse me -- about the Wal-Mart receipt. And it's clear that
Terry Nichols touched that receipt at some point. And it's
clear that he had to have touched it before or on the 15th;
that is to say, the Saturday, because Marife remembers that he
took it in for $2.90 to try and get the refund.
But what is the evidence that Timothy McVeigh handed
it to him along with an oil filter? Somebody told you they had
to stand face to face? And they even did a little drama
handing a piece of paper, one to another. Other than knowing
that that fingerprint had to get on there after the filter was
purchased and before it was traded at the Wal-Mart, there's no
evidence of any face-to-face meeting.
What there is is evidence that Timothy McVeigh took
that old, burnt-out car Friday morning into the Firestone store
in Junction City. Please remember that day. Timothy McVeigh
buys an oil filter. I think that's a fair inference from the
evidence. Somebody buys an oil filter. In addition to Isuzus,
GMC Jimmies, and Jeep Cherokees and a few other things, it does
fit the car he's driving then. Okay. Let's assume that's what
you think.
Friday morning he's in the Firestone store at Junction
City. I'm going to come back to this. Where did he spend
Thursday night? Where did Timothy McVeigh spend Thursday
night? Not at the Dreamland, he didn't check in till Friday.
Not at the Nichols' house. Marife Nichols says he wasn't
there.
Talk about that more. Friday morning, he goes into
Tom Manning's store. He makes a deal for a car, and he goes
out and he calls Terry Nichols. There's no evidence what the
subject of that call is. We do know that Terry Nichols was in
and out all that day with Josh and Marife and Nicole. There is
nothing to say in this evidence that's inconsistent with Tim
McVeigh having dropped that oil filter and receipt on the porch
in the mailbox, out behind the shed, somewhere else. And
there's no evidence of a face-to-face meeting.
And you might look at me and say, "Well, wait a
minute, what's the evidence that there wasn't a face-to-face
meeting?" Well, I look back at you and say, "Who's got the
burden of proof here?" The point is that if the circumstantial
evidence, if the evidence points in either of two directions,
the law says which way to cut.
Finally with Mr. Hupp. It's true that there's a
print -- well, it's as true as Mr. Hupp can count. That Terry
Nichols' print is on a sleeve that's wrapped around this
Primadet. What does that corroborate? Well, where's the
Primadet found? It's found with Michael Fortier's brother.
It's found in Arizona. Well, how did that print get there, the
same kind of Primadet they say is also in Terry Nichols' house?
How did Michael Fortier get his Primadet? Remember? Timothy
McVeigh after February 1, in that time frame, came to Kingman
and gave him an ammo can that had explosive things in it
including Primadet.
Where had Timothy McVeigh just been? He'd been at the
Sunset Motel with Terry Nichols. They'd been -- they were
handing out stuff: Here, some for you, some for you, some for
you. It goes in the ammo can; and after that -- and then it
gets in Fortier's hands. It is not Primadet from that
so-called episode at the Northern Lights Storage Shed where
Michael Fortier's testimony is that he didn't see Terry Nichols
touching anything.
Your Honor, could I take a break here?
THE COURT: Sure.
MR. TIGAR: All right.
THE COURT: We'll take our afternoon recess here,
about 20 minutes, I think, as is our usual practice; and of
course, please remember that you will hear more and more in
connection with the arguments. After the defense arguments,
there's an opportunity, as I told you this morning when we
started for the Government, for rebuttal arguments since the
Government has the burden of proof, and the instructions. And
so once again, in this recess, as always is the case, please
keep open minds, wait till you've heard it all and the case is
given to you for a decision before talking about it in any way,
and avoid anything outside of our evidence, of course.
You're excused now, about 20 minutes.
(Jury out at 3:11 p.m.)
THE COURT: We'll recess, 20 minutes.
(Recess at 3:12 p.m.)
(Reconvened at 3:29 p.m.)
THE COURT: Please be seated.
(Jury in at 3:30 p.m.)
THE COURT: Please continue, Mr. Tigar.
MR. TIGAR: Thank you.
Well, we were talking about the FBI and science.
The next group of people you saw were Mr. Cadigan and
Mr. Krivosta. Mr. Krivosta, you will remember, is the one who
said "textbook picture perfect" but admitted that there was no
textbook except the one that he hoped to write some day, his
total experience in publication having been one article that
taught you not to drop a firearm when it's loaded because it
might go off.
There is no science of drill-bit identification; that
is to say, it's not like ballistics. And they didn't even try
to prove that it was; that is to say that as a matter of basic
science, they cannot prove to you that the similarity is not a
result of chance. Nor, as we saw, can they account for the
differences; that is to say, as you move around the center of a
circle made by a drill bit, you see differences in the
scratches. But they played with the image until they got
something that they said was scratches to match, but the
matches don't go by any means across the whole surface of the
tool.
Now, the second problem with Mr. Cadigan and
Mr. Krivosta is that they admit that the drill bit they
measured, which they said was one-quarter inch, was instead
about 17/64. Remember, it's smaller (sic) than a quarter of an
inch; that Mr. Cadigan says he measured the hole in the drill
(sic) with a ruler, nothing more precise, and he said, "Well,
that's about a quarter of an inch."
You can look at the pictures. The most important
question about that drill bit came up when William Tobin of the
FBI testified. Repeatedly on cross-examination, I asked
Mr. Cadigan, "Well, do you care about where it was between the
time it was found and the time you got it?"
"Well, not really."
"Do you know where it was?"
"No, not really."
And then we heard from Agent Tobin. The FBI
Laboratory had a plumbing problem. It flooded the shed in
which the forensic evidence in this, the most important case in
FBI history, was kept. And before this drill ever got to Agent
Cadigan, that flood had happened.
Here's the box. It's 151, 151A, 151C; and you have it
in evidence, and you can take a look at it.
Now, there is an amazing thing about this box. One
would believe that water affects everything the same that it
comes in contact with; that is, water is water. It falls
everywhere, falls on the just and the unjust. It floods the
evidence of this case and that case. Certainly, it flooded the
manuals. Look at them. Entirely different from the pictures,
all moldy and corroded.
It floods this Phillips driver bit that's out in the
box. It takes this drill bit, which is one they're not
interested in, and gets corrosion all over it.
This is not a watertight case. Inside it was, as the
photographs show, a screw; and it's got rust on it. But all
the drill bits are polished clean; the drill bit they tested,
polished clean, although the pictures in the recovery show that
it was all sitting right in that box.
One of the things that a responsible investigator has
to do is to tell you that the thing they tested is in the same
condition that it was when it was recovered; otherwise, the
results are meaningless.
You already have a problem, because this whole package
wasn't recovered from Mr. Nichols' house until May of 1995.
And the allegations about the lock being drilled at the quarry
go back clear to, what, October -- September, October, 1994.
So we've already got a period of months in there, seven or
eight months, during which time this particular drill bit in
this particular case, this being some standard-size drill bit,
one of the most popular sizes that could be used, is used for a
number of things, such as Mr. Nichols' doing work on his house,
which we know from other witnesses he was doing.
So right away, you have to wonder whether the tests on
the lock and the tests on the drill are reliable anyway,
because the drill bit has been out there being used.
But when you hear the thing was flooded, you know, one
might have a further doubt.
And when one looks and sees that everything else that
didn't get cleaned up is all corroded but that the drill is
not, there is a substantial reason to say that Mr. Cadigan and
Mr. Krivosta are not playing fair. They're not doing this in
the way that a responsible crime laboratory should deal with
evidence.
Now, we made much of -- made something of -- the fact
that Mr. Nichols told the FBI, look, I know that McVeigh had a
shed. He had one in Herington, Kansas. And contrary to the
Government's assertion, he also told them about Council Grove.
Within days, they were out there. They were at the Council
Grove sheds, both of them in both of those names, because they
had the names; and they were at the one that Mr. McVeigh had
rented. There was never any evidence in this case of anything
allegedly connected with any bomb being stored in any of those
sheds. Nothing, no ammonium nitrate, no nitromethane, no
nitroglycerin, no, you know, Tovex residue, no this or that or
anything. And yet they had the full resources of the FBI to do
it, and they were being directed by Steven Burmeister.
And what was the answer to that? The answer was:
Well, how in the world would ammonium nitrate ever leak out of
sealed bags?
Well, one answer as to how ammonium nitrate -- we're
talking -- The Government allegation is that there were 80 bags
of ammonium nitrate purchased that Terry Nichols had control
over in some sheds that he had access to. That's the
allegation. That's what they charge here. That's their chart.
80 bags stacked up high.
Now, if they were kept in the Herington shed, if they
were purchased on a shrink-wrap pallet, they weren't on a
shrink-wrap pallet any more because a shrink-wrap pallet
couldn't go through that 32-inch door in that shed. So the
Government's theory has to be there are stacks of ammonium
nitrate bags there.
What happens to stacks of bags in the normal use?
Here is a picture of Mr. Schlender, the Mid-Kansas Co-op --
this is his floor. It is a mess. It has stuff all over it
that fell out of the various little bags of chips and things.
Look at all the junk in there. Look at all the dirt, things
that fall out of things.
More than that, they showed you a picture of a bag
that they said was an ammonium nitrate bag from ICI. That was
Mr. Rydlund, if you'll recall.
Well, this is Government's Exhibit 70. This bag has
some plastic that is folded into or is a part of the multilayer
in the bag. But when you look closely at this picture, you'll
see that that plastic is not heat-sealed-crimped at the top.
It has no plastic heat-seal crimp. It's not even sewn. You
know how some bags of fertilizer are sewn across the top? No,
the paper is simply folded over and glued at the top, and;
there was a place right up here at the top where it's tucked.
For demonstrative purposes, the Government actually
gave you the bag. Well, you remember when I talked to
Mr. Rydlund about the bag, and we noted that there is stuff
coming out of it. There is prills. There is little things
that have adhered here; and look, because of the water, of
course, they're starting to break down and then they -- because
of the coating on them, they stick.
It defies imagination to believe that for all of those
months -- all of those months and not a single prill; all of
those months, not a single bit of residue.
Oh, the Government says, there are circles on the
floor. Circles on the floor. Circles on the cement floor.
And here in Government's Exhibit 2054 are circles of
rust on the floor. And that's the Herington shed. There they
are: One, two, three.
And so they sent someone out -- now, they don't have
any evidence that the circles weren't there before the Shawn
Rivers person that was Tim McVeigh rented the thing. They
don't have any pictures. But they say, "Let's compare the
circles on the floor with the barrels from VP Racing Fuel."
Let's do. Here's a barrel. This stuff, this
nitromethane, comes in a VP Racing Fuel barrel. And you can
see the lip of it, how it's been rolled around. But basically,
the top of it is mostly painted.
VP Racing Fuel likes to keep their barrels apparently
in pretty good condition because otherwise, who knows? Maybe
the stuff would come out of them.
So we have to first believe that over a period of from
October 21 of 1994 until the shed was entered late in April of
1995 that there was enough moisture in that shed to cause the
barrel, paint on the barrel to come -- to be penetrated by the
moisture and for the rust to get out and to leave a mark that
that -- that that's significant. All right. We are asked to
believe that conditions were sufficiently moist to do that.
If conditions were sufficiently moist to do that, then
what about ammonium nitrate, which absorbs even more water than
table salt? What about the fact that that ammonium nitrate
would begin to do things that would make it much more likely to
leave traces? But we don't rest there.
The FBI actually sent someone out to measure the
barrel; that is to say, they measured these ammonium nitrate
(sic) barrels, and they found out that this inside measurement
here, the inside diameter, is 22 3/8 inches. Okay? That's the
inside diameter. The outside diameter is 23 inches.
Now, we have -- if we're asking the difference between
an inside and an outside diameter -- this is my one and only
one demonstrative exhibit, so please forgive me.
The difference between an inside and an outside
diameter is the inside diameter plus 2 times the width of the
lip. Right? You have to count it twice because you're on both
sides of the diameter.
So that would give us a lip of 5/16th of an inch;
right? 23 inches -- this is 22 3/8 here. The total outside
distance is 23. The distance between -- difference between
those is 5/8 of an inch divided by 2 is 5/16. Right? You can
do the math back there. I don't claim I know how to do the
arithmetic here. Please check me when you get back to the jury
room.
Well, then Agent Witt went and measured the circles;
and he found that the circles were somewhat irregular but that
the diameter of what he measured was 22 1/2 inches measuring
the inside -- okay. So his number was -- all right -- 22 1/2
inches. All right? Okay so far.
Then he said: How much -- wide a mark did the rust
pattern leave on the floor? How wide? Oh, approximately,
probably, 5/8 of an inch.
5/8 of an inch in width?
The rim, the so-called rim area. Okay.
Now, let's add 5/8 over here and 5/8 over here.
What's 5/8 plus 5/8? That's 10/8, or 1 1/4 inches. So we add
22 1/2 plus 1 1/4 -- correct? We can do that. And we get 3/4.
23 3/4 as an outside -- as the very outside. And nobody is
saying that it was the "outside" outside that leaves the mark.
Presumably the lip of the barrel is slightly rounded, so it's
going to be something a little less than that. But the outside
diameter is 23 inches of the barrel.
This barrel, outside diameter is 23 inches.
This mark -- these marks are 23 3/4 inches.
Now, this is a steel barrel, too. It's not a cartoon
barrel. It's not a Roger Rabbit barrel. It pretty well kept
the same diameter as it did when it was manufactured and sold.
Now, in addition to no evidence from the shed, we know
that soil samples were taken. We know that the FBI had the
ability to look for tire tracks. We know that they had the
ability to look for residues from the bomb scene; and they
found nothing, nothing that was introduced in evidence here.
They did bring to you, however, two people,
Mr. Burmeister and Ms. Jones, to tell you something about the
bomb and the composition of it. Now, we spent a great deal of
time talking about that, in part because we hoped -- and it
turned out to be true -- that the record would show us that
the -- the -- that they don't know what this is made of. And
if they don't know what it's made of, then -- then it becomes
impossible to say that if anybody bought or had or stole or
transported any particular thing that that was the thing it
was.
But let's start: Government's Exhibit 664. That's
Q507. It is a piece of the Ryder truck body. Here it is. You
remember the picture.
There it is.
A very important piece of evidence. Only piece of
evidence on which Agent Burmeister with all of his laboratory
says he found any ammonium nitrate. The only piece.
Thousands and thousands and thousands of pieces of
evidence were picked up. Tons of debris were sifted. And yet
that is it.
And from that, Linda Jones wants to tell you this
proves there was certainly ammonium nitrate in this device.
Well, how did the FBI handle it? We had Steven
Burmeister on the scene, the FBI's most senior chemist that had
been assigned to this case. We had Mr. Kelly assigned to the
scene and working for the FBI for many years, and we had Agent
Wilson.
This is not just a story about a piece of evidence.
It is a description of how the FBI chose to handle the most
important evidence in this case; that is to say, evidence that
they believed would be able to show us exactly what this thing
was made of. And so Agent Wilson and Mr. Kelly report to the
crime scene. And here in E89, which we had to introduce, is
the map they made. The little rectangles are cars. Those had
already been drawn on it when they got the map. They were
simply supposed to record each piece of evidence as they
recovered it.
This exhibit we're talking about is called
Government's 664, also known as Q507, also known as 6 or 06 in
terms of when it was picked up. It has all three names.
Here is the official report, E89, of Wilson and Kelly.
And we zoom over to the area here, and there is no No. 6.
There is a 4, there is a 5, there is a 7, there is no 6.
Now, Agent Kelly testified that this particular piece
of evidence was photographed in place. But you recall that
some were photographed after being picked up and moved, some
were photographed in bags. And you remember the confusion
about that.
Then Mr. Kelly says, "I gave it to Mr. Wilson." He
didn't write down and mark it.
And when the log came to be made up, it wasn't
identified -- 01 was identified as wood panel, yellow and red.
06 was just identified as wood panel, even though it is yellow
and red supposedly.
Kelly says, "I gave it to Wilson."
Wilson says, "I took it to the Evidence Control
Center."
You remember the Evidence Control Center, the pictures
of it. A big mess.
Burmeister says, "No, no, no, no. I got it at the
scene and I took it to the Evidence Control Center."
The most important piece of forensic evidence they
found at the scene, and they can't even tell you who took it to
the Evidence Control Center.
But it gets curiouser.
When they asked Linda Jones from the United Kingdom,
who is an internationally renowned expert on these things --
there is no question about that. She's worked many cases
before, both sides of the Atlantic, in other countries. They
supplied to Linda Jones a version of the map where they circled
everything, and somebody wrote in "06." So by the time the
notes get to Jones, they've doctored them to make up for the
fact that they have no record on their notes of where they
found this thing.
Now, where was it found? Let's go back. Let's just
forget everything we just found and let's assume that it's
right: Kelly found it in the parking lot. The parking lot.
He found it on the morning of the 21st, after there had been an
Oklahoma gullywasher rainstorm and after Government's Exhibit
964 -- this -- had happened.
There is a fire hose. There is a fireman. They're
putting out the fires with water. Squirt, squirt, spray,
spray, fire-hose-strength water covering the vehicles in that
parking lot, fighting those fires.
Look at the smoke. Look. You can't even see through
it. Visibility is down to, what, Danny DeVito's inseam? Some
distance, very short. And water is being sprayed on this.
Ammonium nitrate attracts water. Ammonium nitrate
crystals disappear in humid environments. Ammonium nitrate
crystals are very sensitive to those environments.
Mr. Burmeister next reports that he sees it. In his
lab report, he says it was a "glaze" of crystals. Then he told
Linda Jones they were embedded. Well, if they're embedded, how
do they disappear? Embedded things don't just kind of slough
off or disappear in the humidity.
Nobody does a background soil sample to see if there
is ammonium nitrate in the dirt perhaps from a spill when they
pick it up to see if it picked it up from the ground.
Moreover, Burmeister doesn't do any tests on the
crystals. He says the crystals look funny, but he doesn't
bring you a book on crystals to show you that those crystals
look any different from any other crystals.
So in the end, their most important piece of
evidence -- that is to say, this Q507 -- really doesn't work
for them very well. But not only that, you remember Paul
Rydlund? Paul Rydlund from the Imperial Chemical and that
group of companies, a man that has spent his professional life
manufacturing ammonium nitrate to mix with fuel oil to blow
things up, did a master's thesis on it, holds a patent on it --
did all of that. What does he say? He says that if a bomb, a
device, operated efficiently, you would not expect to see any
ammonium nitrate or fuel oil particles. Inconsistent with
Burmeister.
Burmeister did not find any HMX in any crime-scene
residues. Burmeister admits that ammonium nitrate is
hygroscopic. Burmeister admits that the explosive device could
be ammonium nitrate and fuel oil, not necessarily nitromethane,
could be dynamite, could be slurry, could be a water gel, could
be an emulsion, could be any of a number of ammonium-nitrate-
based explosives, and I didn't even go through all of them.
He said he'd have to pull out a reference text to find
out about that.
Then when Linda Jones got on the stand, she confirmed
it. They can't tell you it's Tovex, they can't tell you it's
Primadet, they can't tell you that it's anything at all; and
that is the sum and substance of what the Government's evidence
on this subject is.
Not only that, Linda Jones and Steve Burmeister both
conceded that these are random events; and if they're random
events, they cannot be subjected to any reasonable scientific
analysis.
Linda Jones herself had also written an article in
which she pointed out the dangers of leaping to conclusions
from insufficient forensic evidence. You remember the article
that she wrote in which she hypothesized -- she had a story
about a number of people who shared access to a lock-up garage
like a storage shed.
But there is more. Paul Rydlund: Millions of pounds
a year of ammonium nitrate and fuel oil are sold for commercial
purposes, and he knows about it. If you want to make an
ammonium nitrate device and mix fuel oil with it and blow
something up, well, you've got to join a large group of people.
Farmers do it. You can use Primadet, the witnesses say --
Rydlund says -- to rig through water, if you want to blow a
trench, for example, in a place where there is water.
You remember the witness who said -- Mr. Farley, who
said: Back when I was a boy, we used to use it to blow ponds;
you know, it was an agricultural use. Mr. Rydlund has been
supplying this market for many, many years. He knows about it,
and he tells that there are two kinds of ammonium nitrate, low
density and high density. The low-density prills are the ones
his company manufacturers, and they're the ones that absorb
fuel oil or whatever else you want to mix with them, some
hydrocarbon, to make an explosion.
But the bags are not labeled "low density" or "high
density," and the high density doesn't absorb it. Whoever it
is that walked into Mr. Schlender's co-op on the 30th of
September had no way to know whether the ammonium nitrate that
that person was buying was suitable for manufacturing an
explosive device. There was no way to know that because it
isn't labeled on the bag; and there is no evidence in this
case, not a bit, not a whit, not a whisper, that shows that
anybody was aware of that distinction.
Now, Rydlund also told you something else. Might as
well just put it out right here and talk about it. There is a
lot of aspects to it. It's a book, Hunter. Hunter. I
asked -- well, first Mr. Hupp talked about it. He said there
are fingerprints of Mr. Nichols in Hunter. Okay. 13 of them.
When I read a book, I usually touch more pages than
13. If I'm just riffling through, I might touch 13. And the
copy in Mr. Nichols' house had a sticker on it that said he got
it for sale at gun shows. And it is something people buy
there. So the fingerprints, we can leave aside.
Next, we have the FBI agent who introduced it. And
the FBI agent said: Oh, yeah, this is a book. Well, it is a
book. It's not a very good book. As a matter of fact, it's a
lousy book; but whatever else it is, it is a work of fiction.
The FBI agent conceded that on the stand. He said there had
never been an FBI senior official such as Mr. Ryan, the FBI
senior official portrayed in this book, who praised Hitler's SS
legions as being dedicated to their cause but just there
weren't enough of them to pull it off.
He conceded that the FBI has never hired somebody to
blow up something with an ammonium nitrate bomb, because that's
chapter 28 in this book. I don't recommend you read it. But
if we're talking about, as Government counsel did, what's in
this book, why don't we look?
Let's see here. Oscar -- that's the guy that blew up
the thing -- he spent the day looking without success for a
delivery van or a light truck -- not a Ryder truck. So that's
different.
But he found one. And you know how he got it started?
With a master key that the FBI gave him. A senior official of
the FBI gave him the master key to get the truck to put the
bomb in.
Okay. We could continue this forever. It's a work of
fiction.
I asked Mr. Rydlund about it because there was some
allegation here that if you read this book, you'd know how to
make a bomb.
Well, the bomb that's talked about here is one in
which they use 40-gallon plastic trash barrels; that is to say,
from a hardware store. So different-sized containers.
Then the night -- "the ammonium nitrate is emptied and
stirred with fuel oil." Rydlund said you don't have to stir.
"Then the barrels were grouped around a 50-pound case
of Tovex." That's 50 pounds of these sausages in the middle of
the barrels. And I asked Mr. Rydlund, "Didn't you write a
master's thesis on ignition delay? Don't you want your booster
close to each clump of ammonium nitrate?"
He said yes.
So whatever else this is, this is not even an
efficient way to make a bomb.
Well, let's don't be silly. Everybody at gun shows
can buy books that show you really how to do it. This whole
Hunter thing: It's a dodge. It's silly for the Government to
introduce this document which is sitting over in a box over in
somebody's storage shed. Doesn't have anything to do with it.
You want to talk about things, talk about the fact, yes,
everybody that goes to gun shows can buy books from a company
in Boulder, Colorado, with funny titles that tell you how to do
these things. That's one of the interesting facts about this
case.
But Rydlund told us something else: A bomb in a place
blows up and all around the center, 360 degrees out in every
direction, out flows what? The blast wave. Out comes from the
center of that enormous heat, heat enough to ignite the cars,
to blow up the gas tanks, heat enough to burn and char and
scorch. Yes, this terrible devastation in a 360-degree radius.
Heat enough to volatilize, to melt plastic.
And then Mr. Rydlund was challenged on redirect:
Well, you don't mean it would melt the plastic?
Well, if it was efficient, it would.
Well, what if it was inefficient?
Well, if it was inefficient, it wouldn't.
In Mr. Rydlund's opinion, an efficient ammonium-
nitrate-based bomb would volatilize the plastic barrels in
which it was contained.
And so now, we get to barrels. 50 million pounds of
high-density polyethylene is sold by Nova Chemical in a single
year. Smurfit alone makes 2.5 million barrels during this
time. Smurfit alone. There was some attack by Government
counsel on our analysis of the evidence. So let us review what
we believe and what we say the evidence is and let us see what
you recall.
The one thing that we do not concede is that we have
any burden here. All the burden we had was to cross-examine,
to show that the Udell study was nonsense; that it was rigged
by the FBI; that it was limited to a few manufacturers of
polyethylene; that it was done in a slipshod and unreliable
manner; that it was unscientific; that it was misleading, and
that finally, when Mr. Udell was challenged under oath on the
stand, "Sir, if we saw your notes, would I see there the
questions you asked?" and he said yes, that that was a lie.
The FBI builds witnesses. Why does Mr. Udell need to
lie about that?
But let's disregard that. Maybe that's his problem.
Mr. Tikuisis says that he tested the piece of plastic
they sent him. Well, where did that piece of plastic come
from? Mr. Udell says there was a time when an FBI agent came
to his office at the Smurfit company and on a conference table,
they spread all the pieces of plastic, hundreds of pieces of
plastic. All they found from all around the bomb. And Udell
said: Well, I think we made that one.
And the FBI said, well, that -- We've got some barrels
from Mr. Nichols house that's also that kind; let's see if they
match.
Well, why didn't they test the barrels in Michael
Fortier's house? Why didn't they test any of the other
hundreds of pieces of plastic? Well, it's just like Agent
Hupp's 1,034 fingerprints: Because they didn't care. They
didn't care. And so they tested that piece of plastic.
And you were told that Mr. Tikuisis found this formula
that Smurfit used. No, he didn't. Remember when he came back?
Oh, he found Tinuvin 622; but Tinuvin 622 used to be patented
and isn't anymore and can be made by a whole lot of people.
Well, he found some antioxidant package. Well, yeah,
but the antioxidant package that changes from month to month
even inside his own company.
He found a certain melt index. Okay. That's
consistent with heavy-duty polyethylene. That narrows it. Now
we're talking barrels and milk crates.
And on his first appearance here, he said, "I found
calcium carbonate."
Then we brought him back and I said, "You didn't find
calcium carbonate, did you, sir?
"No, I didn't."
He had performed an elemental test. He could only
find calcium. Could be calcium stearate, it could be any kind
of calcium compound. Doesn't have to be calcium carbonate.
The chemistry doesn't work.
So what else do we know about barrels? Well, look at
all the barrel manufacturers in Government's Exhibit 553.
Mr. Nichols' barrels don't come from any of those barrel
companies. Mr. Nichols' barrels are recycled barrels from a
certain company that makes stuff to wash dairy barns. Those
barrel companies -- that's not those barrel companies. There
is no evidence -- there is no evidence in this case that his
barrels come from any of those companies that were called. Not
a bit.
Moreover, what did Mr. Killam tell you? You go out to
Pure Country Recycling and see the two old boys out there;
they'll tell you about their barrels. They'll say: We got two
kinds. One kind we sell if you're going to put water in them,
and those are kinds that did not contain caustic chemicals.
Now, the other kind we sell used to have chemicals in them, and
we don't recommend you put water in them. They're for trash.
Mr. Nichols' barrels are the kind that used to contain
chemicals.
Well, let me ask you this: If you were a bomber and
you were going to build a device, would you use barrels that
had already contained some kind of caustic chemical that might
interact with whatever you were going to put in them? Doesn't
seem real likely. And the one fact about Mr. Nichols' barrels
is that Mr. Nichols still has his barrels. Is there any trash
in Mr. Nichols' barrels? No. Has he finished moving into his
house? No. Are those barrels suitable for storing the various
picks and shovels and all that stuff that's all around his
basement so that they can be transported from one place to
another, all those picks and shovels that are still laying out
there in various stages of unpacking from having been purchased
at the DRMO as a part of an entrenching kit? Yes.
Even Linda Jones will not tell you that the barrels
contained the bomb. The most she'll say is, well, they were
either in the truck or else they were close by.
And so we come back to the fact that these barrels are
not proven to have had anything to do with the bomb that blew
up the Murrah Building.
At this point, I'm going to sit down for a while, and
Ron Woods would like to talk about some of the events connected
with Junction City, the Ryder rental, and Terry Nichols' trip
to the Herington police station.
CLOSING ARGUMENT
MR. WOODS: May it please the court.
THE COURT: Mr. Woods.
MR. WOODS: Counsel, Mr. Nichols, members of the jury,
I must confess to you that I'm scared to death today in summing
up this case. I've been doing this for over 30 years; but the
stakes have never been this high, nor has there ever been a
case where the Government committed their full resources to
investigate and prosecute a case like this.
This is the largest case in the FBI history. There
are over 30,000 interviews. There are thousands of lab reports
and examinations. They've utilized all the tools that they
have, search warrants, wire-tapped conversations, interviews,
photos, soil analysis, tire track analysis, etc.
And what I'm afraid of is that I won't be able to
articulate and remember all the things I need to say about the
weaknesses in this case in the short time that I have.
The -- in a case such as this where the consequences
are so very high and so dire upon conviction, then the strength
of the evidence should be in proportion to the accusation that
the Government is making. And it's not. The Government has
jumped over a lot of the holes in the case and asked you to
speculate. She just skipped over a number of holes; and we'll
go back over and try to bring those out; but she was asking you
to speculate on a vast, vast majority of the evidence and
speculate to the meaning of it.
They've got to prove this case beyond a reasonable
doubt, and they haven't.
The strength of the evidence should also match the
intensity and the size of the investigation, and it doesn't.
It's woefully lacking.
As I told you on the opening statement, the FBI
started off for a day and a half doing an excellent job in this
case. They were able to find that axle, get the VIN number,
trace it back to Ford, down to Ryder in Miami, and then back to
Eldon Elliott's within that afternoon, April 19. That was
excellent investigative work. And they sent the closest agent,
Scott Crabtree, who was in Salina, Kansas, told him to get over
there immediately to Eldon Elliott's in Junction City. He did.
He called and said, "Put the documents aside. I'm going to
need those documents, and I'm coming over there. Don't talk
about the case amongst yourselves."
He got there right away, 30, 40 minutes, and he
separated the witnesses, the three witnesses that observed the
Ryder rental. And he got detailed statements from each of
them, and he then called in the forensic artist from the FBI
lab that night. Ray Rozycki got there like at 4 in the
morning, came to the CID post there in Fort Riley, and sat down
with those three witnesses, Vicki Beemer -- actually sat down
with Tom Kessinger first because Kessinger actually had the
best opportunity to observe the people and got a detailed
description and did a detailed drawing of John Doe 1 and John
Doe 2.
He then showed those drawings to Vicki Beemer and
Eldon Elliott, and they could not add or subtract anything from
those drawings.
The FBI then took those drawings, mass-produced them,
and went out in the Junction City area and started going to all
the motels, the filling stations, to the restaurants, to any
public place where these people might have been, since it was
only two days previous.
Remember that the truck was rented on April 17. When
Crabtree got there and started interviewing them, it was on the
afternoon of the 19th. So the memories were still fresh with
these people.
So they launched out in the area with a lot of agents
and a lot of police, a lot of area CID people, helping them;
and they came across the Dreamland Motel. And Lea McGown says:
Yes, there was a person that looks like John Doe 1 that was
here from April 14 to the 18th, and he had a Ryder truck in his
possession during that time. And here is his registration.
It's Tim McVeigh. He gives an address of 3616 North Van Dyke
in Decker, Michigan.
The FBI immediately had their Detroit office start
investigating the Detroit -- the Decker, Michigan address; and
they found the local sheriff's office knew something about that
address from Kelly Langenburg. So they set up a meeting with
Kelly Langenburg and the sheriff's office in Decker, Michigan,
early, early, the morning of the 21st. Kelly Langenburg told
you about that. She had to go in there like at 6 in the
morning or so. She told them what she knew about: Yeah, Tim
McVeigh was here in 1993, and I'm the ex-wife of James Nichols
who lives at the farm now. We have a son named Chase, but Tim
McVeigh stayed at that farm in 1993 and he was a friend of
Terry Nichols from the Army.
So they had that much information.
She then went on to say: Now, Terry Nichols was
married to my sister; and my sister, Lana Padilla, lives in Las
Vegas. And here is her two phone numbers, her work number and
her home number. Terry Nichols left here somewhere like in
December, '93, and I think he was going to Las Vegas to be near
Josh. I don't know where he lives now.
The FBI immediately gets in touch with their Las Vegas
office; and the Vegas office gets in touch with Lana Padilla,
and they find out from Lana Padilla that yes, Terry Nichols is
in Herington, Kansas. I just got off the phone with him, Lana
tells them. I was talking to him this morning 7:00 my time,
9:00 their time; but here is his address in Herington. And he
was there, you know, a few minutes ago when I talked to him.
So that's excellent, excellent investigative work that
the FBI did.
Then they jump to conclusions. Their conclusion is,
well, James Nichols and Terry Nichols are involved in this
bombing; and we're going to arrest them and do. They launch
their forces out of Kansas City to go to Herington to arrest
Terry Nichols. And the problem with that is they don't have
any evidence that he's done anything. They don't have one
single fact to put in an arrest warrant in order for a judge to
sign: Yeah, you've got probable cause to go arrest this
person.
So what they do is they decide what we'll do is arrest
him on a material witness warrant. That way, we can take him
into custody and then build our case from there.
Now, jumping to conclusions is a -- it's not unknown
to the FBI. But it's a huge mistake to theorize before one has
the facts, because insensibly you then start twisting facts to
match the theory. And what investigators should do is gather
the facts and then match the theory to the facts that you
gather. But the FBI did it backwards in this case.
They issued or they sent their forces out of Kansas
City. And you've heard that evidence from Steve Smith, who was
there initially and setting up surveillance and noticed where
Mr. Nichols was. And the surveillance team got there, and they
followed him to Surplus City and then to the police station.