Defense Motion Fails at Trial of Nichols

An FBI chemist was wrong to discuss a crucial piece of evidence in the Oklahoma City bombing with an agent before testifying against Terry L. Nichols, but the mistake wasn’t serious enough to exclude the evidence, a judge ruled Friday.

Defense attorney Michael E. Tigar had asked U.S. District Judge Richard P. Matsch to bar the evidence--a piece of the Ryder truck prosecutors say was used to transport the bomb--or strike the chemist’s testimony.

The truck fragment contained the only trace of ammonium nitrate fertilizer left from the 4,000-pound bomb that destroyed the federal building on April 19, 1995, killing 168 people.

Prosecutors are seeking to link Nichols to the truck. Ammonium nitrate fertilizer, racing fuel and other bomb components were found at his Kansas home two days after the bombing.

Tigar’s request came after FBI chemist Ronald L. Kelly admitted on the stand that he talked about a photograph of the truck fragment with FBI agent Alton Wilson before he testified Friday. Kelly and Wilson were on a team that recovered the truck fragment in a parking lot across the street from the federal building.

At the trial of Timothy J. McVeigh, Kelly testified that Wilson snapped a photograph of the fragment. Wilson testified this week, however, that he did not photograph it, and Kelly testified Friday that he couldn’t recall who shot the picture but that he still thought Wilson did.

“I may have been mistaken as far as my recollection of who took the photograph,” he said.

McVeigh, 29, received the death penalty after being convicted in June of the same murder and conspiracy charges lodged against Nichols, 42. Nichols also faces a death sentence if convicted.

Kelly also testified Friday that instead of photographing some evidence where it was found, agents put the evidence in plastic bags and then took pictures. He also said some of the pieces were not documented on photo logs or on hand-drawn maps of the bomb scene.

“Is this the proper way to document evidence at a crime scene?” Tigar demanded.

“No, it is not,” Kelly said.

Tigar said because of the way the evidence was kept, it was impossible to determine who photographed it and who may have handled it.

Kelly insisted that he did nothing wrong by talking with Wilson after McVeigh’s trial about how they found the evidence.

Tigar asked Kelly if he knew about a rule preventing witnesses who are to testify on the same subject from talking about it in advance.

“I’m not familiar with that rule, sir,” said Kelly, a 19-year FBI veteran. “As far as discussions, our conversations did not address our testimony. Our conversations addressed our review of evidence that we had in front of us.”

Prosecutor Beth Wilkinson admitted that she met with Kelly and Wilson separately before Nichols’ trial began to discuss the discrepancies in their testimony. She said Kelly, because he is a chemist and not an agent, may not have known about the rule to not discuss upcoming testimony with other witnesses.

But Tigar said Wilson was a seasoned agent who should have known better. Matsch agreed, saying the meeting “should not have occurred” but ruled he would allow Kelly’s and Wilson’s testimony and the truck fragment as evidence because jurors heard Tigar bring up the discrepancies in their testimony.