May 29, 1997 in Nation/World

Defense Rests In Mcveigh Trial Attorneys Attempt To Discredit Prosecution’s Star Witness

Lynda Gorov Boston Globe
 

Without a word from accused Oklahoma City bomber Timothy J. McVeigh, his attorneys rested their defense Wednesday, outpacing prosecutors whose own speed and brevity had provided few openings for wider questioning.

The defense took just four days to call witnesses and introduce evidence that it hopes will wedge cracks in the prosecution’s case. But a cornerstone of McVeigh’s defense crumbled when an undercover informant’s testimony about a conspiracy to bomb federal buildings was barred by the judge.

Instead, the defense closed with a series of recordings made when the FBI tapped the telephone of Michael Fortier, McVeigh’s former Army buddy and the prosecution’s star witness against him. Intended to undermine Fortier’s credibility, their poor quality made for an anticlimactic ending to the murder trial of the man accused of the most deadly act of terrorism in U.S. history.

In comparison, legal observers said, the government’s strategy of returning victims to the stand over 18 days turned a circumstantial case into a compelling human drama that kept the 168 dead and 850 injured in the forefront of jurors’ minds. Still, observers credited defense attorneys with raising doubts about the case against McVeigh whenever possible during cross-examinations, leaving little more to say once the prosecution had rested.

“The defense was short for some of the same reasons the prosecution’s case was short,” said Christopher Mueller, a University of Colorado law professor who specializes in evidence and procedure. “Both sides were very carefully prepared, and the judge was determined to move it along. And other than try to emphasize omissions, there wasn’t much the defense could do.”

Closing statements are slated to begin Thursday; McVeigh’s fate could be in the hands of the jury by week’s end. Few legal observers anticipate lengthy deliberations, although most expect the McVeigh jury to weigh the evidence for longer than the few hours it took to find O.J. Simpson not guilty of double murder.

Julius Levine, a Boston University law professor, said lead defense attorney Stephen Jones is likely to stress to the jury that McVeigh is innocent until proven guilty, and that the prosecution has been unable to do that beyond a reasonable doubt.

“The defense may say that we listened to the prosecution for five weeks and we found they did not have much and so we did not need to respond,” he said. “It could be spun that way.”

Along with other law professors and lawyers, however, Levine noted that the prosecution’s case appeared so tight that defense attorneys were unable to impeach the testimony of principal witnesses. Those witnesses included McVeigh’s sister Jennifer, and Michael and Lori Fortier, who testified under grants of immunity from prosecution over their refusal to come forward and warn authorities about McVeigh’s alleged plan.

In his opening statement, Jones had denounced the Fortiers as drug-using liars out to save their own skins. They had, in fact, gone public with proclamations of McVeigh’s innocence in the days after the April 1995 explosion. They had used drugs. But after scores of hours of preparation by prosecutors, both Fortiers appeared on the stand looking clean cut and sounding credible.

Time and again, lead prosecutor Joseph Hartzler and his team headed off trouble by warning the jury about questions that might go unanswered throughout the trial. In his opening statement, for instance, Hartzler pointed out that the possibility that an alleged accomplice known only as “John Doe 2” exists does not negate McVeigh’s own role in the bombing.

Under cross-examination, Jones did rattle some prosecution witnesses and poke holes in some testimony. But he could not undo the Fortiers’ testimony that their former friend had laid out plans to bomb the federal building in Oklahoma City.

Even in weak moments, such as inconclusive evidence about a phone card that McVeigh supposedly used to try to buy bomb-making materials, the prosecution kept piling on evidence and noting that no one piece would make the puzzle perfect, but many might.

The government also avoided potential problems by keeping a short rein on evidence analyzed by the FBI laboratory, which has come under attack in recent months for improperly transporting and storing evidence in the bombing and other cases.

Of the two principal witnesses called to testify about explosives evidence from the crime scene, one does not work in the FBI lab and the other was not among those criticized in a report by the Justice Department’s inspector general.

“The defense hit the weak spots when it could, and did what it had to do on cross-examination, but there were too many threads of circumstantial evidence,” said Robert Miller, a defense attorney and former Colorado US attorney. “They tugged at them, but frankly it doesn’t look like they laid a glove on the prosecution.”

MEMO: This sidebar appeared with the story: Highlights of Timothy McVeigh’s defense FBI lab woes.Timothy McVeigh’s defense sought to raise doubts about the FBI’s handling of evidence. Scientist Frederic Whitehurst, a longtime critic of the agency, believes the evidence was handled by inexperienced scientists and was at risk of contamination. Fortiers. The defense also attempted to discredit key prosecution witnesses Michael and Lori Fortier. The defense portrayed both of them as drug users and played tapes of Fortier’s wiretapped telephone conversations in which he jokingly boasted of making a million dollars by concocting a story about the case. Changing story. A key defense witness who was supposed to help McVeigh, ended up changing her story in a way that hurt him. Bombing survivor Daina Bradley said she saw a second, light-skinned man, whom she could not rule out as being McVeigh leaving the Ryder truck. Mystery bomber? Oklahoma state medical examiner Fred Jordan admitted his staff could not identify one left leg found in the rubble. Although McVeigh attorney Stephen Jones never openly stated in court the leg could have belonged to the real bomber, that suggestion clearly was his intent. - From wire reports

This sidebar appeared with the story: Highlights of Timothy McVeigh’s defense FBI lab woes.Timothy McVeigh’s defense sought to raise doubts about the FBI’s handling of evidence. Scientist Frederic Whitehurst, a longtime critic of the agency, believes the evidence was handled by inexperienced scientists and was at risk of contamination. Fortiers. The defense also attempted to discredit key prosecution witnesses Michael and Lori Fortier. The defense portrayed both of them as drug users and played tapes of Fortier’s wiretapped telephone conversations in which he jokingly boasted of making a million dollars by concocting a story about the case. Changing story. A key defense witness who was supposed to help McVeigh, ended up changing her story in a way that hurt him. Bombing survivor Daina Bradley said she saw a second, light-skinned man, whom she could not rule out as being McVeigh leaving the Ryder truck. Mystery bomber? Oklahoma state medical examiner Fred Jordan admitted his staff could not identify one left leg found in the rubble. Although McVeigh attorney Stephen Jones never openly stated in court the leg could have belonged to the real bomber, that suggestion clearly was his intent. - From wire reports


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