In a major victory for the federal government, a judge ruled Thursday that prosecutors can use all of their eyewitnesses to help prove that ex-Army buddies Timothy J. McVeigh and Terry L. Nichols secretly conspired to blow up the federal office building in Oklahoma City.
The ruling clears the way for prosecutors to present a series of key eyewitnesses whose testimony will suggest that Nichols purchased bulk quantities of ammonium nitrate and that McVeigh rented a large yellow Ryder truck--all used to create the bomb that killed 168 people in the April 1995 explosion.
Also on Thursday, prosecutors gave one of the government’s most spirited defenses to date of the FBI crime lab’s work on forensic evidence from the Oklahoma City bombing. They told U.S. District Judge Richard P. Matsch that the evidence was not in jeopardy despite widespread allegations of shoddy work at the lab.
Matsch’s ruling on eyewitnesses came at the close of a three-day pretrial hearing in which defense lawyers argued that the eyewitnesses were influenced by heavy media coverage of the bombing and that prosecutors had shaped the witnesses’ recollections to fit their case.
But with McVeigh’s trial set to begin in just five weeks, Thursday’s ruling adds new muscle to a case that prosecutors have conceded rests largely on circumstantial evidence.
“We were once analogized to be the sinking Titanic,” said Larry Mackey, an assistant U.S. attorney. “But I think today we’ve seen we’re really the Merrimac and the Monitor. We’re ironclad. This ship is in good shape.”
Stephen Jones, the lead counsel for McVeigh, said “obviously this is some setback.”
Matsch noted that his ruling does not change the fact that the government has no witnesses who can place the defendants in front of the Alfred P. Murrah Federal Building, the scene of the blast on April 19, 1995.
Mackey said one witness, identified as William Dunlap, was going to testify that he saw a white male get out of the Ryder truck in front of the building and then walk to the rear of the truck. He said the man resembled McVeigh, but he could not be positive.
But Dunlap recently was dropped from the list of government eyewitnesses, Mackey said, after prosecutors made “careful evaluations of how that evidence would play out in front of a jury.”
The eyewitnesses who now will be permitted to testify at the separate trials of McVeigh and Nichols do, however, present some problems for government attorneys, most important their sometimes conflicting descriptions of what the defendants look like. But taken as a whole, their accounts tend to place McVeigh and Nichols at key junctures in the bomb conspiracy.
The witnesses include Eldon Elliott and Thomas Kessinger, who work at the Ryder truck shop in Junction City, Kan., and who say they recall that a man resembling McVeigh rented a truck two days before the blast. And Fred Skrdla, an Oklahoma gas station attendant, said McVeigh purchased gas for the Ryder truck on the morning of the bombing.
Frederick L. Schlender Jr., manager of the Mid-Kansas Co-Op Assn. in McPherson, Kan., said he thinks the defendants twice purchased large amounts of fertilizer, which may have been used for the bomb, from his store. FBI agents were drawn to his co-op after finding a sales ticket at Nichols’ home in Herington, Kan.
Schlender said two men purchased fertilizer at his co-op twice, in September and October of 1994. He said one of the men, whom he believes was Nichols, used the name Mike Havens.
He said that man claimed to be a farmer who needed bulk fertilizer in order to put in his wheat crop. But Schlender said it had just rained, which made wheat planting impractical, and that most farmers today prefer liquid fertilizer rather than the bulk, bagged variety.
He also said the “Mike Havens” customer was not a member of the co-op and was not interested in filing an application for a tax deferment on the fertilizer.
Schlender recalled little about the men’s first visit, on Sept. 30, 1994. But on the Oct. 18 visit, he said, he got a better look at them. While he said he was “50% certain” one of them was Nichols, he could not say that the other man was McVeigh.
Schlender testified that he used a forklift to load the fertilizer onto the back of a pickup truck and trailer rig that resembles one owned by Nichols.
Schlender added that to this day he still feels bad about selling the fertilizer to the two men. “There’s a lot of guilt on my part for allegedly being a part of this sale,” he said.
On the issue of the FBI crime lab, Assistant U.S. Atty. Beth Wilkinson said none of the work done in the Oklahoma City case falls under the general allegations of shoddy work and widespread contamination that the Justice Department inspector general’s office is currently reviewing.