Listen: On this episode, we’ll meet a witness who claimed McVeigh showed her how he was going to build the bomb using Campbell Soup cans, how he planned on funding the mission, and what McVeigh was hiding in some Christmas packages. The script for the show, including some of the trial exhibits follow.
Timothy McVeigh vs. The USA – Episode 3
The trial styled the United States of America vs. Timothy James McVeigh was held in Denver, Colorado, Judge Richard Matsch presiding. The largest and deadliest act of domestic terrorism in the United States beget the largest investigation in the history of the United States, second only to the September 11 attacks. 28,000 interviews were conducted, tons – literally tons – of evidence were collected and analyzed. 13 different lawyers questioned 171 witnesses who took the stand, some more than once. Opening statements lasted 1 day. If convicted as charged, Timothy McVeigh faced the death penalty.
A trial is a well-regulated search for the answer to a very simple yes or no question: Did the defendant commit the crime in the way prosecutors allege he committed it in the indictment? We’ll refer to this as the principal question. If jurors believe beyond a reasonable doubt the answer is “Yes,” then the verdict is guilty. If they do not, or have a reasonable doubt that their verdict should be yes, then the verdict is not guilty. Some trials have more than one indictment, and therefore more than one yes or no question. Judge Matsch greeted jurors on Thursday April 24, 1997 by re-introducing the parties, and outlining the three questions they would be called upon to answer. Did Timothy James McVeigh:
(1) conspire with Terry Nichols, Michael Fortier and others unknown to use a truck bomb to destroy the Alfred P. Murrah building, killing and injuring the persons in it?
(2) use a truck bomb against a United States Building?
(3) murder certain individual law enforcement officers while they were engaged in the performance of their official duties?
The burden of proving these answers to be “yes” lies with the United States Government. Their order of proof in the trial can be broken down into these 4 parts: (1) proving that a crime occurred; (2) placing McVeigh near that crime scene, (3) identifying the parts of the weapon that caused all of the damage, (4) proving that McVeigh had the possession, knowledge, and motive to use that weapon. The first is referred to as the corpus delicti – proving the existence of a crime – and was hardly in dispute. Somebody or a group of somebodies unquestionably used a weapon of mass destruction which destroyed a building owned by the United States, and caused the death of people inside while they were performing their official duties. This was not a case of self-defense, insanity, accident or mistake. It is a who-done-it, a point highlighted by McVeigh’s Attorney Stephen Jones in his opening statement: “And I think it fair to say that this was the largest criminal investigation in the history of this country. The question is did they get the right man.”
The biggest problem for the Prosecution was the fact that nobody ever actually said they saw Tim McVeigh in Oklahoma City. Of all 146 witnesses called by prosecutors – 143 in their case in chief, and 3 in rebuttal – none of them ever said, “I was in Oklahoma City that day and saw Timothy McVeigh.” As a matter of fact, there was only 1 witness in the entire trial that ever said she saw the Ryder truck that day in Oklahoma City – and she said 2 people got out. One was an olive-complected male with short hair wearing a blue starter jacket and white hat with purple flames. The witness didn’t get a good look at the second individual; she was only able to say that it was a white male who walked hurriedly away from the truck. The witness said neither was McVeigh.
Another way to say it? Of the billion pieces of evidence collected, prosecutors were unable to present a single piece of direct evidence that Timothy McVeigh detonated a bomb in Oklahoma City on the morning of April 19th, 1995. The case against him was entirely circumstantial. And, given the magnitude of the crime, the scope of the investigation, and the sheer amount of death and destruction, it was to be one of the largest circumstantial evidence cases ever heard in an American courtroom.
The Government’s month-long case began with the emotional stories of some of the survivors you’ve already heard about in the first episode. Jurors heard from 5 of these survivors on day one. Their lawful purpose in testifying was to establish the identity of the victims and that they were discharging their official duties at the time of the explosion. Their testimony also provided the moral anchor for the government’s case. After calling some – but not all – of the survivors and family members to identify the victims, the prosecution next revealed the homicide chain to jurors, linking the Ryder truck axle to the man named Timothy James McVeigh in the Noble County Jail. We’ve discussed both topics at the beginning of the series.
In order to satisfy jurors that a defendant committed the crime, prosecutors must juxtapose the defendant and the fatal blow as nearly and exclusively as possible by time and location. Perhaps the most famous example of a suspect being perfectly juxtaposed in time and location with the killing might be when Jack Ruby shot and killed Lee Harvey Oswald in the basement of the Dallas Police Headquarters on November 24, 1963.
But McVeigh didn’t light a fuse in a basement full of police officers and throngs of reporters on live television. His case is one where the cause (detonation) and the effect (the mortal destruction) were not simultaneously observed. We’ll start with an illustrative hypothetical I’ll borrow from an old treatise we discussed last season written by Alexander Burrill:
Two persons are seen alive together in a room having but one means of entrance or exit; and an alarming sound or outcry is heard, and the room is immediately entered; and one of the persons is found dead, and the other standing near him, and no other person is seen. Here the immediate entry, in connection with the physical character of the place would demonstrate the impossibility of the presence of any third person. The perpetrator would be as clearly indicated by the mere force of the circumstances as if he had been seen to inflict the mortal wound.
In other words, although not committed on live television and not directly observed, both cases – Ruby’s and the hypothetical – provide conclusive proof of the identity of the killer. Why? To the exclusion of everyone else on earth, both Jack Ruby and our hypothetical perpetrator were the only people that had opportunity to commit the murder.
Would that conclusion change if the killer and the victim weren’t seen entering the room, but the killer is still discovered standing over the victim immediately after the “alarming sound or outcry?” What if instead of being observed standing over him, the killer is seen running out of the room immediately after the outcry? What if he’s seen running away from the house 30 seconds afterwards? 5 minutes later? What if upon entering the room after the “sound or outcry,” 2 people are observed standing over the victim?
Although the factual possibilities and hypotheticals are endless, our decision about whether a suspect had the opportunity to kill always depends on the strength of the proof that exclusively juxtaposes a defendant’s proximity in time and space with the commission of the crime. Ruby’s case presents proof of juxtaposition in its strongest form: Ruby was the only person (exclusivity) near Oswald (physical proximity) at the instant in time (temporal proximity) who possessed the murder weapon and the ability to use it (the means). Stated another way, since we know Ruby’s exact location immediately before the killing (walking towards Oswald), during the killing (shooting Oswald from point blank range) and immediately after (in the arms of a host of Dallas Police Officers), there can be no doubt that he killed Oswald.
The hypotheticals show how variations in the proof of a suspect’s exclusive, temporal and physical proximity to the crime impact the conclusion that the suspect did or did not have the opportunity to kill. The larger the gaps, the more logically justifiable alternative conclusions exist until, at some point, the large gaps turn into reasonable doubt in the minds of the jurors. The smaller the gaps, the stronger the proof.
Where and when McVeigh was first located after the bombing thus became vitally important to the Government’s case. As we’ve said, no one directly puts McVeigh in Oklahoma City at the time the bomb was detonated. Therefore, prosecutors set out to prove that McVeigh was at least close enough in time and space to have had the opportunity to have done so. McVeigh’s point of arrest between mile marker 202 and 203 on I-35 is precisely 77.9 miles north of Murrah. The trip takes 75 minutes if you travel the speed limit. If you were to leave Murrah at 9:02, the time of the explosion, and drive the speed limit, you’d arrive at the spot where Trooper Hanger pulled McVeigh over at 10:17. Hanger’s records show that he pulled McVeigh over at 10:20. While arguments could be made that once pulled over, McVeigh didn’t act like someone who had just committed the largest act of domestic terrorism in American history, the physical and temporal connection between him and Murrah existed with some force. At the very minimum, the time and place of his arrest proved that McVeigh had the opportunity to commit the crime.
In addition to establishing where and when McVeigh was first discovered in relation to the crime scene, his arrest also provided jurors with another key component of proof besides opportunity: motive. Jurors heard from FBI agent William Eppright who testified about the political writings recovered from the front seat of the Mercury that mentioned the standoffs in Waco and Ruby Ridge, and contained excerpts from The Turner Diaries we discussed earlier. Louis Hupp, an FBI fingerprint expert followed up, matching the fingerprints on some of those papers to McVeigh. Given these circumstances, writings like this one took on a greater inculpatory significance: “When the Government fears the people, there is liberty. When the people fear the Government, there is tyranny.” Handwritten underneath that phrase: “Maybe now there will be liberty.”
Christmas Presents
Lori is the mother of two kids, a 4 year old named Kayla and a 1 year old named after his father and her husband, Michael Fortier. She knew Timothy McVeigh because he and her husband were in the Army together, same barracks, same room, in Fort Riley, Kansas. McVeigh moved in with them in their trailer in Kingman, Arizona in March of 1993 after he lived with a mutual friend named Terry Nichols. She remembers the time because the three of them – she, Michael and Timothy – watched the Branch Davidian Compound incident on TV.
The next time she saw him was when McVeigh’s favorite team, the Buffalo Bills, played the Dallas Cowboys in the Super Bowl in early 1994. McVeigh stayed with them for a little while before renting a block house in Golden Valley, Arizona, 10 miles outside of Kingman. She remembers he didn’t have a telephone at his house, so he used theirs. She didn’t mind because he always used a calling card. During the time from the Super Bowl towards the end of the summer, McVeigh worked at a True Value store in the lumberyard. Lori’s husband Michael was the bookkeeper. She saw McVeigh weekly during this period when he would come to their house. He was set to pass out pamphlets he wrote about Gun Control and Waco on the 4th of July at fireworks stands near Kingman. Later that summer, she, Tim and Michael went to a mountain range area between Golden Valley and Laughlin called Union Pass and set off a pipe bomb. She described it as one and a half feet long with a green fuse.
McVeigh’s preoccupation with Waco and Ruby ridge continued to grow during this time. Sometime in September of 1994, she told jurors that Michael received a letter from McVeigh. He said that he wanted to take action against the government. When he came to town a few weeks later, he was no longer the clean cut military type. He became what she described as a scruffy bearded biker. They asked him about the letter. What did he mean by take action? He was going to blow up a federal building, and explained his plans in detail. She relayed his plans to jurors. He used a “light blue hardback book” to learn about different detonation ratios, and discussed with her a strange term she’d never heard before: “Anhydrous Hydrazine.” The components could be purchased at racetracks. He told her that he had already obtained the racing fuel by dressing up like a biker. He was also going to hardware stores around Kansas, and had already purchased large quantities of Ammonium Nitrate fertilizer. He kept those in a shed. He was going to use the “sausage things that he and Terry had stolen from a mining quarry in Kansas,” after drilling out a lock on a building there to steal the explosives. Using Campbell’s soup cans, he diagrammed the circles inside of a rent-a-truck that represented barrels of racing fuel and ammonium nitrate. McVeigh explained he was going to use a shape charge, forming the barrels in a triangle, where the flat part of the triangle would be facing the building because the blast would “get the most impact that way.” The target was a U-shaped building with a glass front in Oklahoma City. Why? It was, according to McVeigh, an easy target to hit, and it housed some of the people that were in the Waco raid.
In order to fundraise for the mission, he told her that he and Terry Nichols were going to rob a man with a large cache of weapons named Bob that lived in Arkansas. He was a good target because he had a lot of valuables to take, and McVeigh was on bad terms with him. According to Lori, McVeigh’s plan was that he and Michael would sell the stolen guns at different gun shows. Their goal was to raise $2,000.
In December of 1994, right around her husband Michael’s birthday, McVeigh asked them to meet at a Motel and to bring tape, boxes and wrapping paper. When they got there, McVeigh took out a large boxful of blasting caps, separating them into two smaller boxes. He asked Lori to wrap them in Christmas paper in case he was stopped by the police. He was also ready to go pick up the guns that were stolen from Bob’s, and needed Michael to go with him. McVeigh gave them an AR-15 and some gold and copper coins as a show of good faith. The two left. The trip was almost disastrous. McVeigh called her three days later looking for Michael. Apparently, McVeigh got rear ended with all those Christmas wrapped blasting caps in the trunk. Michael fled the accident scene to avoid being caught. They averted the crises, and they made off with about 25 guns from Bob’s robbery.
Around Valentine’s day, 1995 McVeigh asked to borrow her typewriter and an iron because he had something he needed to laminate. Lori wouldn’t let him because she didn’t want him to ruin her iron. So she did it herself. What was it? A fake driver’s license. It had a blue stripe on top, ostensibly issued by North Dakota, and was adorned with McVeigh’s picture. The name was a different alias than the one he normally used, Tim Tuttle. It was Robert Kling. She remembers because she asked where he came up with the name. He told her Star Trek, as in the Klingons.
On April 19th, 1995, she was home in Kingman when news of the bombing of a federal building in Oklahoma city broke. She told jurors she knew right away that it was McVeigh. His arrest was announced two days later, on April 21, 1995. She immediately grabbed that typewriter and inspected the ribbon. Sure, enough, she testified, she saw the name Robert Kling. She burned it in an ashtray in her kitchen because she was scared that she and her husband would be linked to Tim. She also got rid of the Waco tapes “because the Waco tapes is why Tim did it.” When she was contacted by the FBI thereafter, she denied any connection with the stolen weapons, denied knowing anything about McVeigh’s knowledge of explosives, and denied that he was even capable of doing the bombing. Rather, from the beginning, she told the FBI, “From knowing him, I believe in no way that he was responsible for this crime.” She didn’t just lie to the FBI about her participation and McVeigh’s plans. She lied to her friends, her family, the press, everyone. When asked if she was concerned because her house was bugged and her telephone was tapped, she said no. She was telling the same lies to everyone, so it didn’t really matter.
Perhaps the lies paid off for her and her husband, Michael. Though their house was searched and they were suspects, they weren’t arrested. Instead, they were subpoenaed to testify in Oklahoma City in Mid-may. She got a lawyer, however, and made a deal before having to speak on the record. She would eventually testify in front of the Grand Jury, but that would not happen until August. In between then, she was meeting with her lawyer and government officials. Her husband Michael did the same.
By the time the prosecution finished their direct examination, Lori Fortier provided jurors not just with expressions of ill-will and intimations about some future act, but specific plans to implement the act, from committing crimes to fund the operation, to collecting various components of the murderous instrument, to designing it for the most impact, and to picking an easy target. She also gave them who he was doing all this with – her husband Michael Fortier and Terry Nichols. Of course, testimony is only proof if it is believed to be true. Was Lori Fortier being truthful? Perhaps that question is best answered by asking whether she had a good enough reason to lie.
A person cannot be a witness if what they say might implicate themselves in a crime – that’s the 5th amendment. That Constitutional protection applies whether a detective is interrogating a suspect the night of their arrest all the way until their trial, or at the trial of a co-conspirator. A prosecutor can defeat that protection and force the person to testify if they promise not to ever prosecute the witness for their admitted crimes. This is called “immunity” because once it happens, the person is forever immune from prosecution. That was the deal she struck with prosecutors. Lori Fortier had immunity.
Stephen Jones began his cross examination of Lori Fortier like this: “You were not willing to testify and tell the ladies and gentlemen of the grand jury what you claimed to know about the Oklahoma City Bombing conspiracy until you received an order of immunity from the United States District Court. Is that right?”
Answer: “Yes.”
“And before you agreed to take the stand in this trial you again said you needed immunity?” Answer: “Yes.”
Self-preservation was certainly not the only motivator for her testimony. Jones next brought out the logical inconsistencies in her story. On Direct examination, Lori claimed to be scared of McVeigh in the weeks and months leading up to the bombing. Yet the three of them, Michael, Lori, and McVeigh, went four-wheeling together, traveled to gun shows twice, and rented movies together all during the period she was supposedly scared of him. And the guns stolen from Bob in Arkansas? Not all of them were used to fund the crime as she initially told jurors. She and Michael traded at least 5 of them for methamphetamines and weed.
She wasn’t afraid to take her lies public, and when she needed a scapegoat, she made one. Jones introduced Defense’s exhibit P82 – a statement Lori wrote. Here are her words: “This country has been a witness to how the alleged suspect, Timothy McVeigh, has already been crucified by all of the lies put forth by the media. Is there anyone who actually believes he will receive a fair trial by a jury that has not been spoiled by the media’s handling of all this? The media needs to be exposed for what they are: money hungry vultures who prey on people in their time of need, just for the sole reason of getting a juicy story. Please think twice before you believe what you hear or what you read.” Was this an impulsive, spur-of-the-moment statement she made? No. Jones showed jurors that this was the second draft, both done in her own handwriting. She revised it, edited it, and corrected it. She even gave it a title: “Judge Not, for ye shall be Judged.” And, “money hungry vultures?” Jones brings out that she and Michael talked with some of their friends about landing a book or movie deal. They were circling and scavenging the kill, too. They even appeared on CNN proclaiming McVeigh’s innocence, declaring they didn’t see anything in the past that would make him think McVeigh was responsible.
Finally, on Direct, Lori made the statement that she, “didn’t think McVeigh was really going to go through with the bombing.” In a series of questions, Mr. Jones pointed out all of the things she admits that she did know, leading up to one of the most memorable moments of her cross. She met Terry Nichols after McVeigh drew her the shape charge model. She knew McVeigh procured and possessed racing fuel. She, Michael, and McVeigh exploded a pipe bomb in the mountains, demonstrating McVeigh’s knowledge and ability with explosives. She knew his target was the Murrah building in OKC. She admitted that she wrapped blasting caps in Christmas packages to help McVeigh conceal them from the prying eyes of potential law enforcement officers. All of that led to this question: “But you didn’t think McVeigh was serious?”
Answer: “I didn’t want to think he was serious because he was a friend of ours.”
“What more would he have had to tell you for you to believe he was serious?”
After a pause, she finally relented: “I believe he was serious.”
“And your husband Michael is charged and awaiting sentencing?”
“Yes.”
“And you have not been charged?”
“No.”
“And when this is over with, you will leave the stand and return home to your children, correct?”
“Yes.”
“You’ll agree with me that all you had to do to prevent the death of these 168 people was to pick up the telephone?”
“Yes.”
“And you did not.”
“Yes.”
“And as a result of your failure to pick it up, 168 people died?”
“Yes.” And with that, Lori Fortier’s testimony concluded.
Stepped Forward as an Animal
The word of an accomplice alone is not legally sufficient to sustain a conviction. The name of the game after an accomplice testifies becomes giving jurors independent sources of information that corroborate the accomplice’s testimony, thus proving the same set of facts through witnesses who aren’t tainted by the juror’s inherent bias against witnesses who get deals like Lori Fortier. Kevin Nicholas was one such witness. Here’s a summary of his testimony.
He lived in Vassar, Michigan, a place he described as being in the Thumb of Michigan. He works in factories and owns apartments for his company, “Nicholas Rentals.” He was also a farmer, a trade he learned at Joyce Nichols’ farm. That’s Terry Nichols’ mother. He was friends with both Terry Nichols and Timothy McVeigh. He and McVeigh lived together off and on between 1992 and early 1995. He told jurors that around Christmas 1994, McVeigh called him asking for a ride because he got rear-ended. McVeigh would be waiting for him at a speedway. When Nicholas got there, he helped McVeigh unload his trunk. McVeigh, though, wanted to handle some things himself: “I’ll take care of them Christmas-wrapped packages there.” When Nicholas asked why, McVeigh simply replied, “I’ll tell you later.” Later on, Nicholas brought up the packages. McVeigh told him there were “caps” in there. Blasting caps. He didn’t want Nicholas to touch them. While McVeigh stayed with Nicholas, McVeigh was using Nicholas’ phone, “a lot,” and Nicholas didn’t like it. He told McVeigh not to use it so much because it would cost a lot of money. McVeigh explained that the calls he was making wouldn’t show up on Nicholas’ phone bill because McVeigh was using a calling card.
They also went to 3 gun shows together. According to Nicholas, McVeigh never used his real name. He used the alias, “Tim Tuttle,” instead. McVeigh sold ammunition and guns at the shows, and he always sold his book, “The Turner Diaries.” Given how long they knew each other, he was familiar with McVeigh’s handwriting. He read a letter to jurors McVeigh wrote in April of 1995, a portion of which reads as follows: “If we’re scared away from writing the truth because we’re afraid of winding up on a list then we’ve lost already. ‘To Sin by silence when they should protest makes cowards of men’ – Abe Lincoln. If the founding fathers had been scared of a ‘List,’ we’d still be under the tyrannical rule of the Crown. I left the legacy of passing literature behind and stepped forward as an animal. I’ve moved from intellectual to animal. I will celebrate anytime one of those Gestapo ATF Bastards dies. Hell, you only live once, and I know you know it’s better to burn out then rot away in some nursing home. My philosophy is the same. In only a short 1-2 years my body will slowly start giving away – first maybe knee pains, back pains, whatever – but I won’t be peaked anymore. Might as well do some good while I can be 100% effective.”
It would be quite hard to believe Lori Fortier without the corroboration Kevin Nicholas supplies. Take McVeigh’s anti-government rhetoric as one example of the precious currency of corroboration. It would be one thing if the evidence about that came only from Lori because there would be no proof of what McVeigh said to her about the government outside of Lori; it is uncorroborated, and she has a very good reason to lie as we’ve discussed. If you add a witness like Kevin Nicholas who does have physical corroboration of his anti-government sentiment in the form of McVeigh’s letter, and has no reason to lie, and he’s relaying the same sounding rhetoric as Lori attributes to McVeigh, her testimony as a whole becomes more believable. If you add to both Lori and Kevin similar sounding rhetoric from the letters and writings recovered with McVeigh’s prints in his Mercury upon his arrest, the conclusion that McVeigh hated the federal government becomes nearly infallible. The strength of those connections might also make other parts of her testimony that aren’t explicitly corroborated much more believable. Take for example whether McVeigh actually told Lori that he picked out his target – a federal building in Oklahoma City. He didn’t tell that to Kevin Nicholas, and didn’t write about it in any of those letters. But as her word is corroborated and buttressed on one subject – McVeigh being anti-government – prosecutors hoped that the other parts of her uncorroborated testimony would become just as trustworthy.
In addition to his anti-government views, Lori made a number of factual assertions about McVeigh that, if true, could be proven independent of her testimony. She said he burglarized a quarry in Kansas to steal blasting caps, for one. She said he discussed fundraising his mission by selling guns obtained from a robbery of a guy named Bob in Arkansas, for another. He said he was going to collect chemicals like ammonium nitrate, anhydrous hydrazine and racing fuel to use to make the bomb, and hinted at using storage sheds as repositories for the bomb’s components. He had even identified the target as a federal building in Oklahoma City, “shaped like a U with a glass front.” Those assertions were verifiable. In other words, if a quarry in Kansas had been burglarized, there should be verifiable evidence of that crime, and some indication that McVeigh was involved. Same with the Robbery in Arkansas, the storage units, and sales of ammonium nitrate or racing fuel. The next phase of the trial focused on proving that each of Lori’s assertions actually happened as McVeigh described, each becoming a trial within a trial, a tapestry of corroboration. –End of Episode 3–