Lead Prosecutor to Quit After McVeigh Trial

The top prosecutor in the Oklahoma City bombing case, Joseph H. Hartzler, plans to step down after the trial of Timothy J. McVeigh--a move that could complicate the subsequent trial of co-defendant Terry L. Nichols, according to sources on both sides of the case.

In addition, the prosecution’s second-in-command, Larry A. Mackey, is considering leaving the government team after McVeigh’s trial ends this summer.

The shake-up among government lawyers--a situation that the sources said stems from personal choices by both men--would come at a critical juncture in the criminal prosecution of the worst terrorist attack in America, the destruction of the Alfred P. Murrah Federal Building two years ago.

A switch in the leadership of the prosecution team could delay the start of the Nichols trial, which is to begin after McVeigh’s trial ends.

And it also could mean problems for the government’s star witnesses--Michael and Lori Fortier--who have grown comfortable in working with Hartzler and may not be as amenable to starting over again with new government lawyers in the Nichols case, according to Lori Fortier’s attorney.

When he was originally appointed chief prosecutor a month after the bombing, Hartzler told Justice Department officials in Washington that he was willing to commit just two years to the case. He has applied for a federal judgeship in his home state of Illinois.

Also, sources said the 46-year-old attorney, who has multiple sclerosis, has been under tremendous stress the past two years in preparing the case for trial.

The case against McVeigh and Nichols has moved slowly for several reasons. There was a lengthy pretrial fight over moving the case from Oklahoma City to Denver, and then a second protracted wrangle over splitting the case into two trials. Opening statements in the McVeigh trial did not begin until just 10 days ago.

When Mackey was enlisted by Hartzler as his top lieutenant, he agreed to sign on for just six months to help start the case and assemble the evidence gathered by the FBI for trial preparation.

Sources said he too is restless now and has expressed a desire to move on after the McVeigh trial, in part so he can rejoin his family in Indiana.

Citing a gag order imposed by U.S. District Judge Richard P. Matsch, both Hartzler and Mackey have refused to comment on any aspect of the case, including any speculation about their departures.

But one government source said their absence would not jeopardize the Nichols prosecution because much of the work done to prepare for the McVeigh trial will easily carry over. In addition, the other half-dozen assistant prosecutors are well-versed in many aspects of the case.

“All of the investigations and the pretrial work and the interviews and the records and everything else are already there,” the source said. “So what we’re looking at that still needs to be done is the actual in-court trial attorney work. And we have a really deep bench.”

Michael E. Tigar, the lead attorney for Nichols, said in an interview Saturday that a change at the top of the prosecution team could adversely affect the start of the trial for his client.

“We always have thought” that the Nichols case would begin 60 to 90 days after a McVeigh verdict, Tigar said. But replacement prosecutors could mean the government will require more time to prepare to put Nichols on trial, he added.

“I don’t think it directly benefits us,” Tigar said. “Over the years, one learns that the government machine is driven by its super resources, by its access to information and evidence. So a change in faces in the front lines would not necessarily in my experience have a lot to do with things.”

But changes at the top of the prosecution may not sit well with the government’s star witnesses.

Michael Fortier has pleaded guilty to related charges in the bombing, with a maximum sentence of 23 years in prison. But he also has been given the expectation of a reduced sentence if he fulfills a government request to testify truthfully against his former Army buddies, McVeigh and Nichols.

Lori Fortier was given a grant of immunity from prosecution to do the same. She testified this past week against McVeigh, and is expected to be a witness in the case against Nichols.

Her attorney, Mack Martin of Oklahoma City, noted that she and her husband have dealt almost exclusively with Hartzler in preparing for trial, and that she particularly is not happy about having to start over again with a new chief prosecutor.

Martin suggested, as have others, that Hartzler’s departure could be read as a sign that he is leaving after the McVeigh trial because it is the surest bet for conviction. “I’m a little disappointed that he’s quitting after the easy case,” Martin said.

No decisions have been made for replacements on the prosecution team. Sources at the Justice Department said they hope to wait until Eric H. Holder Jr., the U.S. attorney in the District of Columbia who recently was nominated for a top slot in the department, has an opportunity to review the matter.