Listen: Jurors learn how 1 little card connected raceways, hobby shops and chemical companies. The Prosecution calls one of McVeigh’s Accomplices, a man who compared himself to Kato Kaelin in the trial styled The People of California vs. O.J. Simpson, and boasted that he had “quite a tale to tell.” The Script and some of the trial exhibits follow.
Timothy McVeigh v. The USA – Episode 5
You must have been wondering how investigators developed all those leads into the origin of the bomb components. How did they know to call Glynn Tipton at VP racing, or Linda Juhle at Mid America Chemical for example? Backtracking from a little card Agent Thomas found in a stack of papers in Terry Nichols’ living room. You may recall that William Sweet was the Circulations Manager at Liberty Lobby, the publisher of the conservative newspaper called “Spotlight.” The paper offered a prepaid debit calling card. If purchased, customers could use it to make phone calls, whether local or long distance. All they needed was a dial tone. The customer would dial a 1-800 number, enter their account PIN, then dial the destination number. They could replenish the funds for the account by check or money order. One Spotlight account in particular was opened on November 12, 1993 in the name of Daryl Bridges, 3616 North Van Dyke Road, Decker Michigan. It was accompanied by a money order for $50, and bore the signature of “Daryl Bridges.” Between the time the account was created and April of 1995, the account was recharged numerous times. By using the dates of these “recharges”, 9/29/1994, 1/21/1995, 2/14/1995, prosecutors proved that the calling card was being used and replenished during the period of time that the components for the bomb were being procured and storage units rented.
Jurors heard testimony from 27 witnesses the morning of 5/7/1997. These types of witnesses are sometimes referred to as predicate witnesses. They were all record keepers for various phone companies like Southwestern Bell, or worked at various places like Newton Hobby Center, VP Racing Fuels, Hutchison Raceway Park, or Paulsen’s Military Supply. All morning long, these 27 witnesses testified to jurors about certain records from their respective companies that eventually filled up two full binders, and these were the condensed records. One by one, they told jurors their phone numbers at certain dates and times beginning in 1994 until April 19th, 1995.
Here were some of the numbers: Vulcan Chemicals, Barton Solvents, Mid-America Chemical, Mid-Con Plastics, Inc., Harcross Chemicals, Hobby and Model Construction Supplies, Ebersol Hobby, RC Raceway, Wichita International Raceway, Heavy Demolition, Cornejo and Sons Demolition. Investigators determined that all of these numbers shared something in common. By comparing them to the Yellow Pages available to the public in the Wichita, Kansas area, they all were listed under the headings, “Chemicals,” “Barrels & Drums,” and “Racetracks.”
The argument between the lawyers about these calls, of course, was that no matter how many phone records were introduced, the numbers don’t prove the identity of the caller. We know that the calls were made by someone who knew or had access to the PIN number for the calling card, and the originating numbers, but the actual identity of the participants in these calls remained beyond observation. As Mr. Jones put it in his closing argument, “The calling card didn’t have a camera on it.” While the card might not have had a camera, however, prosecutors believed circumstances within the call records and surrounding the card could identify the callers, starting off with the fact that the card was recovered in Nichols’ living room, and had 3 of his fingerprints on it. Listed on the back of that card was the secret pin number, “56757736577532.” Moreover, each time the card was “recharged,” a money order was used. Various witnesses identified the handwriting on all but one of those money orders as Terry Nichols’. Jennifer McVeigh identified the handwriting on the other one as her brother’s.
Each time McVeigh or Nichols was proven to be on a call made by the card to their known acquaintances – take McVeigh’s sister and father as examples – the more likely they also used the same card at or near the same times from the same originating number to solicit the various companies for bomb making components needed to carry out the plan. In all, 604 total calls were made using that Spotlight card. The prosecution called a single witness to tie it all together.
They Didn’t Know About Fred Dexter
Frederick Dexter grew up in Scranton, Pennsylvania, and has a math Degree from Elizabethtown College. He is stationed in Washington D.C. where he works as a data processor for the FBI. His job in this case was to synthesize millions of phone records, connecting dots from dozens of “predicate” witnesses, and deliver them in a digestible format to the jury. We’ll start with three calls made on 10/1/1994 to illustrate, the first to a Brooklyn Delicatessen, the second to TruValue Hardware in Kingman, Arizona and the last to Michael Fortier’s house. You may recall that McVeigh’s friend Gregory Pfaff worked at that Brooklyn Deli, and remembered getting a call from him sometime in the “Fall of 1994,” when McVeigh asked him for a detonation cord. McVeigh and Nichols both worked at the TruValue Hardware store, and of course you recall Linda Fortier’s testimony wherein she said McVeigh frequently called Michael during this timeframe. On October 7th, calls originating from Kingman, Arizona using the calling card were made to VP Racing fuels and Coogle Trucking. Remember Glynn Tipton from VP Racing who was asked by someone he was, “90% sure was McVeigh,” for some racing fuel? The calling card records verified that call happened on race weekend for the NHRA on September 30, 1994. Records also confirmed the second call Tipton testified he received, “about a week later” came from the calling card. Dexter also showed jurors that after the date of the sale by VP Racing for Nitromethane, all of the calls on the card to various chemical companies, hobby shops, and any other place that might sell Nitromethane stopped.
Dexter identified other calls used to corroborate the testimony from previous witnesses. On October 17, 1994 at 8:58 P.M., a pay phone at a Pizza Hut in Herington, Kansas was used to call the ex-wife of Terry Nichols, Lana Padilla. On October 23, 1994 at 4:41, the card was used at a payphone outside of a Bo Video in Junction City for a 10 minute call William McVeigh in Pendleton, New York. That’s Timothy McVeigh’s father. Another call was made from the same place using the same card to Michael Fortier’s number. On December 18, 1994 at 6:49 PM a call that originated from a Speedway in Saginaw, Michigan reached Kevin Nicholas. You recall Nicholas told jurors McVeigh called him for a ride after McVeigh wrecked his car. It was on the way home from this speedway that McVeigh eventually admitted that the “Christmas presents” were really blasting caps.
On April 5, 1995, a call on card originated from Kingman, Arizona to Ryder Truck Rental One-Way in Lake Havasu City. On April 11, two calls from Kingman, Arizona were made to Terry Nichols’ residence. On April 14, a 54 second call was made from J&K Bus Depot in Junction City, Kansas to Terry Nichols’ number. Within seconds (see picture), the card called Elliott’s Body shop in Junction City, the place that rented the Ryder truck with the tell-tale axle to Robert Kling. On April 16th, 1995, the card called Terry Nichols residence from Herington, Kansas. On April 17th, 1995, a number of calling card calls were made from Junction City, 3 of which went to Terry Nichols’ residence, and one to Bell Taxi transportation. Other calls at the time were also made using the card from outside Junction City, originating instead from the Kansas City Airport. One of those calls went back to the Dreamland Motel in Junction City. The other call went to Lana Padilla’s house in Las Vegas.
Did Tim McVeigh or Terry Nichols actually procure the card or was there really a Darryl Bridges? If there was, he didn’t seem to mind that someone was using his card. John Kane is the Executive Vice President for Ammex, the telecommunications network company that owns and operates the Spotlight calling card. He told jurors that no one ever called his company and complained that the card was lost or stolen, or that the account was being used without permission between December 1993 and April 1995. A small point, but valuable to defeat an argument by the defense that someone stole the card and used it to facilitate collecting the instruments of this crime.
Besides that, the card was never used after April 17th, 1995, two days before the bombing.
That calling card is in my estimation one of the most powerful pieces of evidence in the entire trial. Once discovered, the numbers the card called provided investigators with 604 different leads that eventually uncovered McVeigh’s footsteps in the months and days leading up to the bombing. The card represented verifiable, objective connections, the corroborative tentacles of which connected Elliott’s Body Shop to the Dreamland Motel to VP Racing Fuels, and from the Fortier’s to the Nichol’s to McVeigh’s own home.
Besides developing leads prospectively, the card also allowed investigators to test the strength of connections retrospectively. You’ll recall one of the original links in the homicide chain that lead to McVeigh came from Eric McGowan, the 19-year-old who worked at the Dreamland Motel on the outskirts of Junction City. He also testified about phone records originating from McVeigh’s room. During his stay between April 14th and April 17th, those records revealed 4 total calls, 2 of which were made using the Calling Card. Recall also that Lori Fortier, Kevin Nicholas and Jennifer McVeigh all mentioned during their testimony that McVeigh told them at various times not to worry about their phone bills because he was using a calling card. Thus, the card strengthened the eyewitness identification of McVeigh at the Dreamland, and the eyewitness identification of McVeigh at the Dreamland strengthened the theory that he used the card. These facts, in other words, converge reciprocally, strengthening each other, ultimately pointing to the same conclusion: Timothy McVeigh was in Room 25 of the Dreamland Motel in Junction City, Kansas the weekend before the bombing, and while there, he used the same card that had been used to procure bomb making materials for the previous year.
McVeigh and his conspirators were now tied together during the major preparatory events of the bombing: seeking and procuring significant amounts of certain explosives, storing them, and ultimately delivering them. The tedious connective process culminated in Frederick Dexter. Small seeds of information suddenly sprung into powerful trees of proof. Here’s what that forest looked like according to prosecutors thus far in the trial.
On April 14th, 1995, at about 9:00 A.M., McVeigh came to the Junction City Firestone service station because he was having trouble with his car. He complained of overheating and white smoke coming out of the tailpipe. He filled out the sales ticket using the name Tim McVeigh and listing the address 3616 Van Dyke, Decker Michigan. After inspecting the car, a Firestone employee named Kelly Osburn gave McVeigh an estimate of 700-800$ to fix the blown head gasket or cracked cylinder. McVeigh responded that he didn’t have that kind of money. The Firestone manager named Tom Manning offered to sell him a 1977 Mercury Marquis instead of making the expensive fix. They took it for a test drive, and McVeigh agreed to give Manning $300 and the car with the blown head gasket for the Marquis. Before he gave McVeigh the car, Manning did a roadworthiness test, fixed a tire, checked the battery, and put some transmission fluid in. Meanwhile, McVeigh quickly used the calling card at a nearby payphone to call Terry Nichols for 54 seconds. Records indicated a second call, this one lasting 7 minutes, to Elliott’s. Those calls were significant: they were the only calls by any Spotlight calling card made at that payphone, and no other customer of spotlight ever called Ryder. McVeigh came back, and once Tom completed the road worthiness test, they filled out a bill of sale for the car. That bill of sale included McVeigh’s signature and the familiar address in Decker, Michigan: 3616 Van Dyke. McVeigh handed him $300 and said he’d hoped he had enough money to get back to Michigan. Manning decided to give him 50 back. “I just wanted to do a good gesture, to help out.”
At about 10:30 A.M., on April 14, 1995, McVeigh drove off in the Marquis, bill of sale in hand. Manning identified McVeigh based on this interaction and the fact that McVeigh was a former customer. Records showed that he began going there in September of 1989 while in the Army, buying tires, and otherwise using that station to service his various cars, though Manning didn’t realize it when he first came in. McVeigh remembered, though. On the day he bought the Marquis, Manning said McVeigh removed his hoodie and reintroduced himself: “I’m Tim McVeigh.” And, of course, McVeigh was arrested in that very car by Trooper Hanger, saying he bought it from a guy named “Tom” in Junction City. The value of this whole connection, however, isn’t to the car. The value is that it continues to tie McVeigh to Junction City near the time the only traceable vestige of the bomb was acquired: The Ryder Truck.
A day later, on April 15th at 9:00 AM, a customer walked into Eldon Elliott’s shop telling him he got a quote from “Vicki” yesterday, and was there to pay his reservation fee for the 20 foot Ryder truck. He gave the name Bob Kling, matching the name listed on the driver’s license he presented. Mr. Kling made arrangements to pick up the Ryder truck two days later on April 17th, at 4:00 PM. Later that same day, April 15th, a ‘Robert Kling’ ordered Moo Goo Gai Pan sliced chicken from Hunam Palace in Junction city. The meal was to be delivered to room 25 at the Dreamland motel. Phone records confirmed that the call to the Restaurant was indeed made from Room 25, the room registered to “Tim McVeigh.”
Marife Nichols lives in Herrington, Kansas with her husband, Terry. On Easter Sunday, April 16th, 1995 at around 3:30 in the afternoon, her phone rang. Terry had a conversation with the caller, leaving almost immediately thereafter in his old blue pickup with a camper on the back. He didn’t tell her where he was going. She didn’t see him again until 10 o’clock the next morning, Monday April 17th. When he got back, took his son to the Kansas City International Airport so he could catch a flight to go visit his mother, Lana Padilla. Phone records indicated that there were two calls that day made by the Spotlight calling card originating from that airport: one to Lana Padilla, the second to the Dreamland Motel, room number 25.
The Spotlight card also made two calls from a Junction City payphone on April 17th. The first was to a taxicab company called Bell Taxi Service. As a result of that first call, a taxi was dispatched to pick up one passenger and take him to a McDonalds nearby. The locals refer to it as “McDonald’s South.” At 3:57 P.M., surveillance cameras inside the restaurant captured a man leaving, carrying a McDonald’s pie in his hand. The restaurant’s manager identified that man as Timothy McVeigh.
That McDonalds is off I-70 in Junction City, just down the street from Elliott’s Body Shop. How far? According to Agent Edwards, approximately an 18 and a half minute walk. Sure enough, at about 4:15 P.M., the man claiming to be Robert Kling walked into Elliott’s Body shop to pick up his Ryder Truck, giving Vicki Beemer his driver’s license. She did what she always did, and verified that the man in the picture on the license was the man standing in front of her. She then copied the contact information listed on the license into her database: Robert D. Kling, 428 Maple Drive, Redfield, South Dakota. She didn’t know it at the time, but investigators eventually found out: there’s no such place in South Dakota.
Lori Fortier and Frederick Dexter are similar witnesses in that both tied up one important segment of the trial while setting the foundation for the next. You’ll remember that Jurors heard from Lori about Bob’s robbery, the quarry burglary, solicitations of chemical companies at racetracks, and a fake driver’s license she made for McVeigh using the alias Robert Kling. Prosecutors followed that up by putting forth witnesses separate from Lori that backed up her claims. The strength of the corroborating evidence during that phase of the trial emanated from varied and different sources: eyewitnesses, fingerprinted receipts, forensically analyzed drill bits and locks, and the various pieces of physical evidence collected from Terry Nichols’ house including it’s biggest prize, the Spotlight Calling Card.
Objects Adapted for the Criminal End
These “means” of committing the crime, are defined as “physical objects and substances, mechanical aids and devices of various kinds, known to be adapted or purposely contrived for attaining the [criminal] end in view.” Examples of the “means” of a crime include obtaining a weapon like a gun or a knife, or obtaining the component parts of the weapon like noxious chemicals, bullets, or, as in this case, explosive materials, in order to make or use the weapon. The strength of the evidence that a suspect possessed and knew how to use the mortal instrument depends on the principles of juxtaposition upon which the case against Timothy McVeigh was built: how close to the crime in time and location they were tied together, whether the suspect knew how to use the weapon, and whether there were indications of concealment or stealthiness, along the way.
But “Means” or Instruments “adapted for a criminal end” aren’t always weapons.
At some point during the life of the crime, a killer decided that he needed to choose the right instrument to succeed in causing the desired criminal effect. The same goes for choosing an accomplice: in order to succeed, he needed to choose the right person that would help “attain the criminal end in view.” Perhaps he needs someone to do the work for him to avoid an obvious light of suspicion, as when a husband wants to kill his wife, or a suspected criminal wants to kill his accuser. It may be because he lacks the knowledge or courage to commit the crime. Perhaps he’s underestimated his target. Maybe some intervening circumstance has arisen and his goal has been frustrated. Or, perhaps he needs help in obtaining the weapon or ingredients to make it. Whatever the impetus may be, an accomplice presents a means to a murderous end in the same way the gun, knife or poison does.
The decision by a criminal to involve an accomplice comes with a significant risk different from the risk associated with selecting and obtaining a weapon: guns and knives can’t remember and don’t talk; accomplices can and do. The killer betrays his murderous intention the instant in time he approaches the accomplice with the plan. Index anime sermo: speech is the index of the mind. Should the accomplice say no and the criminal go forward with the plan anyway, the criminal has created potentially devastating incriminating evidence. If the criminal does successfully recruit the accomplice, it’s possible the accomplice won’t follow through with the plan, again creating potentially devastating evidence. Finally, even if the crime is successfully accomplished, the disastrous consequence of an accomplice eventually being caught and disclosing the conspiracy permanently exists. The threat of criminal prosecution is a powerful trigger for betrayal.
Jurors must therefore believe that the accomplice is someone that the principal would trust with this type of proposal. That trust could originate from a close relationship of some type, as when gang members, lovers, or close friends unite to commit a crime. The trust could also originate from a relationship developed solely from the conspiracy to commit the crime, as when a hitman is hired.
The right against self-incrimination means a witness or an accomplice doesn’t have to testify if they choose not to. We’ve mentioned the concept of immunity in our discussions of Lori Fortier and Jennifer McVeigh. For their testimony, both were forced to testify because immunity effectively canceled their privilege against self-incrimination. What if, however, the government is unwilling to offer immunity, but they still want the accomplice to testify? They must somehow convince the accomplice to do so. The government can entice the accomplice, not with immunity, but with exposure to a lesser charge or sentence. If the accomplice declines to accept the deal, he runs the risk of being tried separately and receiving a harsher sentence. On the other hand, if the deal they offer isn’t good enough, the prosecution runs the risk of having to try the case at a later time. And there are no guarantees at trial. The bargaining positions of the prosecution on one side and the accomplice on the other, therefore, reflect the respective confidence each has in their own case. That respective level of confidence shapes and eventually induces the accomplice and the government to strike a deal to testify.
And that means the accomplice is inherently biased. Prosecutors must therefore convince jurors that the accomplice was involved in the crime with evidence separate from and in addition to the accomplice’s own admitted involvement. Just as the affixing proof against the person on trial entails proving the accused had the opportunity, motive, and means to commit the crime, affixing proof against the accomplice entails proving the accomplice had the opportunity, motive and means to engage in the conspiracy.
Enter accomplice Michael Fortier. Before he actually hit the witness stand, the prosecution independently built a case against him alongside the one they were building against McVeigh. The spotlight calling card connected Michael to a plethora of calls to key phone numbers, at times and from locations where bomb-making components were procured. Jurors already knew that he and McVeigh were friends while they served together in the Army, and they lived together at various points in their lives, including in the months immediately preceding the bombing. You may recall Jennifer McVeigh telling jurors that her brother wrote in a letter that Michael was on a “short list of people she could trust.” Lori Fortier told jurors that Michael possessed and expressed the same anti-government sentiment as McVeigh, and agreed to help fundraise the mission by fencing stolen guns.
Two weeks into trial, and against this backdrop, Joseph Hartzler stood up and announced, “The Government calls Michael Fortier.”
10 to the Power of 10
Michael Fortier was born in Maine, and lived there until he was 7. He lived most of his life, however, in Kingman, Arizona. In 1987, he joined the United States Army, and was sent to Fort Benning, Georgia for basic training. That’s where he met and became good friends with Timothy McVeigh. When he got out of the Army, Fortier moved back to Kingman.
A few years later, McVeigh came to Arizona from Michigan because he and their mutual friend, Terry Nichols, were on the way to Waco to protest the way the Branch Davidians were being held captive by the Federal government. He had some souvenirs with him, including an ATF hat adorned with fake bullet holes. When the compound was burned down, the three of them – Nichols, McVeigh and Fortier – concluded that the federal government killed the Branch Davidians. Maybe they didn’t start the fire, McVeigh told Fortier, but they started the whole standoff. A little while later, McVeigh and Fortier crossed paths at a gun show. This time, McVeigh had a tape called, “Waco, The Big Lie.” The two watched it, reaffirming their conclusion that the people had been murdered, that there was a cover up, and that the Government should be held accountable. McVeigh was convinced that Waco signaled that the US Government had declared war on the American Public and that it was actively taking their rights away. Their fears of an American takeover stoked by the fires in Waco grew. They came to believe that an elite group within the United Nations were trying to disarm the American public so they could form a single government called the “New World Order” and take over the world. Fortier told jurors that he, McVeigh, and Nichols shared, exchanged and subscribed to literature that supported these beliefs. One was called Spotlight News Magazine, “All the news that the mainstream media won’t print.” Another was called the Patriot Report, a different periodical also steeped in concern of the New World Order.
At the beginning of 1994, McVeigh called him and said he wanted to get out of Michigan. Fortier offered to help McVeigh get a job with him in Kingman at the True Value Hardware Store. McVeigh came and lived with them for a few days before getting a cinder block house in a town called Golden Valley about 5 miles outside of Kingman. Fortier told jurors the same story Lori told about the three of them setting off a pipe bomb in a valley near their house in September, 1994. McVeigh put the bomb against a bolder, lit the fuse and ran behind some other rocks. It exploded and rolled the boulder on its side. He also told them about how he and McVeigh broke into a national guard armory, scouting around to see if there was any evidence of UN activity. They found a bunch of trucks – “Deuce and a half’s” according to Fortier – but not much in the way of U.N. involvement. When lights fell on them from a passing truck, they hid under a Humvee. In the process, they found an ax, a shovel and a pick they promptly stole. Fortier got married to Lori at the end of July, 1994, in Las Vegas. McVeigh was the best man. Once they came back from their honeymoon, McVeigh moved out. Fortier didn’t hear from him for a while until he received a letter.
McVeigh wrote that he and Terry Nichols decided to take some type of positive offensive action, and he wanted to know if Fortier would help. He told him to keep it a secret from his wife. Fortier responded that he was curious about it, but wouldn’t keep secrets from his wife. McVeigh came to Kingman a few days later, and they talked about it. As they stood by the fence in Michael’s yard, Fortier told McVeigh he wasn’t going to help unless the “New World Order Tanks were in my front yard.” Until they were at war, Fortier was unwilling to do what his friend asked – blow up a building. A few days later, McVeigh came to Fortier’s house and told him that he had to show him something, and took him to his storage shed in Kingman. In it, McVeigh showed him 12 boxes of explosives that he says he and Terry got by drilling out the locks to some sheds at a rock quarry in Kansas.
McVeigh also told Fortier he figured out how to make a bomb out of a truck. He explained that he would drill a hole in the cab and run a cannon fuse through it into the cargo area, and would use some of the sausage explosives from the quarry to aid the blast. He showed him how he planned to arrange 55 gallon barrels of ammonium nitrate and racing fuel in a triangle in the truck’s cargo bay and point it towards the building in line with the strongest direction of the blast. He and Nichols were in the process of buying the parts for the bomb using fake names. One of the parts he needed was racing fuel. McVeigh explained he was going to dress like a biker to blend in to the race crowd to get it.
Some time went by, and around Halloween of 1994 – Fortier estimates this timeframe because that’s when he bought his Jeep – Mcveigh told him that he and Terry Nichols chose a building in Oklahoma City. It was the federal building where the order for the murder in Waco came from. He was going to set the bomb off at 11:00 A.M. because that’s when people would be getting ready for lunch. He compared those people to the Stormtroopers in the movie Star Wars. They may be individually innocent, but because they were part of the Evil Empire, they were guilty by association. The date for the bombing would be on April 19th, 1995, the anniversary of Waco.
Fortier didn’t hear from McVeigh after that until he got a call from him. McVeigh told him it was a “code red.” McVeigh explained that Nichols robbed a man named “Bob” in Arkansas who dealt in guns. McVeigh issued the “code red” to warn Fortier about any investigators that might come to Kingman looking for him, but the investigators never came.
On December 15, 1994, a date Fortier remembered because it was right around his birthday, McVeigh called and asked if he wanted to make “10 to the power of 10,” code for $10,000. He told Fortier to bring some boxes, some wrapping paper, scissors and tape to a motel in Kingman where he was staying. He also wanted him to bring an M14. When he and his wife Lori got there, McVeigh traded Fortier the M14 stock for an M16 rifle, a trade far in excess of the worth in terms of value. But McVeigh needed more. He needed a ride to Kansas, and wanted Fortier to go with him. The extra in the trade was to persuade Fortier to do it. The reason for the extra benefit was in McVeigh’s duffel bag: a bunch of blasting caps he stole from the Quarry in Kansas. In the event they got pulled over on the way to Kansas, McVeigh wanted to be able to tell officers that they were just Christmas presents. Fortier agreed, and Lori wrapped the blasting caps in the boxes with the wrapping paper. The next day, they left.
If you’ve ever driven from Kingman, Arizona to Junction City, Kansas, you’d take I-40 east until it intersects with I-35 North in Oklahoma City. McVeigh and Fortier broke the trip into two parts, driving first from Kingman to Amarillo, Texas. Fortier told jurors that along the way on this first leg, McVeigh pointed out a few yellow Ryder trucks in the size he needed. They were the “big kind,” the one that listed an “18,000” pound capacity on the side. They spent the night in Amarillo, and left early the next morning. A few hours later, Timothy McVeigh and Michael Fortier entered Oklahoma City on a scouting mission.
When they arrived, McVeigh detailed his plans. He showed Fortier the large federal building in downtown. “It had a lot of glass in the front and a cement courtyard in the back,” according to Fortier. McVeigh asked Fortier if a big Ryder truck could fit into the delivery lane. Fortier thought it could easily happen. McVeigh said he was either going to park and light the bomb and stay in the truck and shoot anyone if they tried to stop him, or he was going to have Terry Nichols drive down with him a few days earlier and drop off a car to be used as a getaway. McVeigh pointed to a spot at the end of an alley for the rendezvous point. McVeigh would light the fuse, exit the truck, walk down the alley to the car and get out of town. Fortier asked him why not just park in the alley? McVeigh said he wanted to put a building in between him and the bomb as a buffer zone.
That day, Timothy McVeigh left Oklahoma City just the way he found it.
They headed north to Kansas, and when they crossed the border, they got off the highways to avoid using record-keeping tollways. They zigzagged their way to some storage units, one in Herington and another in a town called Council Grove. They stopped at the sheds, where McVeigh picked up the weapons previously stolen from Bob’s. The two made it to Junction city and stayed the night. The next day, they went to the airport and rented a car. Fortier needed to get back to Kingman. For payment, they divided up the lot of guns, McVeigh giving Fortier the lesser valuable ones. Fortier was to take the guns and sell them on the gun show circuit. McVeigh told him to shave and carry himself as a military man because he could make more money that way. They ate at a Pizza Hut before going their separate ways.
Some time went by, and 1994 turned into 1995. Fortier told jurors he ordered some documents from the back of Soldier of Fortune magazine in order to make a fake identification and blank birth certificate. Fortier made the order using the name Tim Tuttle, a name he knew McVeigh frequently used as an alias. Fortier got a call from McVeigh who was in town and wanted to see him. They met at a motel. McVeigh said that Nichols backed out of the bombing plan. Fortier told McVeigh he wasn’t going to go through with it either. McVeigh became angry because Fortier hadn’t sold the guns like he promised, and didn’t have any of the money. McVeigh’s bombing plan was deteriorating. Undaunted, McVeigh talked with him about some books, one of which was called the Rise of the Far Right Extremists. McVeigh tried to persuade Fortier to change his mind and head out on the gun show circuit with him to help raise money for the plan. Fortier refused. It was a turning point for their friendship. McVeigh told him he was taking the high road while Fortier was down on the low road. “You’re too domesticated. We can’t be friends no longer.” McVeigh left. They would not see each other again.
Fortier stayed in Kingman. Though he lost his job at True Value, he made ends meet by selling things he found in the desert and collecting disability checks for a shoulder injury. On April 18, 1995 he and his neighbor Jim Rosencrans stayed up all night playing video games. When they finished the next morning, they turned off the console and turned on the T.V. That’s when Fortier found out about the bombing. He told jurors he said to himself “Oh my God, he did it.” Two days later, he told jurors he, “saw on TV where they put McVeigh’s sketch as John Doe No. 1.” Then he got a knock on the door from the FBI.
Fortier’s long track record of dishonesty with investigators began then: “Tim was like a buffer zone – if people thought he was guilty then that would bring suspicion down on myself; if he was innocent, then surely I would have no knowledge of it,” he explained. The agents asked whether Tim was capable of the bombing: “I told investigators I didn’t think Tim was capable. My answer was a lie.” He also told jurors he lied to investigators about Terry Nichols. “I just wanted to push him aside, and not even have to think about him. I lied and denied any knowledge. Whenever they asked me questions about the bombing itself or any of my knowledge, I always lied about that.”
Take the trip to Kansas to get the guns from Bob’s robbery as an example. He lied by saying he hitchhiked to Kansas to buy the weapons from Tim, but didn’t know where they came from. He told Jurors he was coming up with these lies “off the cuff.” He knew, though, that the Agents were on to him. “Just the way they were looking at me and the way I was answering questions, it was just really off.” Did McVeigh commit the bombing? No. Had you ever been to OKC? No. But these were, according to Fortier, lies. All lies. The questioning by agents went on for 4 days. Finally, according to Fortier, an FBI Agent named Williams directly accused him – and according to Fortier’s own testimony, truthfully accused him, mind you – of knowing more about the bombing than he was letting on. He called Fortier a baby killer, a charge that apparently really upset Fortier. He left the interview.
The agents executed a search warrant on his house. They didn’t just take evidence; the agents also put hidden microphones in his house and tapped his telephone. Fortier was recorded telling his brother that he was considering going on the talk show circuit and making some money. He told him he had found a career because he could tell a good fable. He told his friend Glynn that he thought he could make “a cool million off the story.” He was going to provide “something juicy,” something “worthwhile to the Enquirer.” He was going to write a story Hollywood would pick up. He told his stories outside the confines of his house, too. In a very famous televised interview on CNN, he told the whole world that he didn’t believe Tim was involved. He admitted to jurors he lied to everybody: his friends, his family, his parents, reporters, everyone.
Besides lying, Fortier admitted he got rid of physical evidence that might link him to the crime, too. He hid the tapes about Waco McVeigh gave him with his friend and neighbor Jim Rosencrans. He stashed a bag of ammonium nitrate with Rosencrans. He also fertilized his yard with some of the ammonium nitrate, an attempt to hide evidence in plain sight. He hid some of the explosives McVeigh had given him in the trunk of a car his brother was building.
Fortier told jurors that when he got a subpoenaed to testify in front of the Grand Jury about the bombing, he was ready to come clean. He and his wife Lori came to OKC and rented a hotel room and arranged a meeting with FBI investigators. When they all met, Fortier got cold feet nearly as quickly as he started talking, and wanted a lawyer. He got one, and when it came time for the talks to continue, they entered into a “proffer agreement” with investigators in which anything he told investigators could not be held against him: “I made a decision that it would be best for me to start cooperating, best for myself, best for my family, and best for the people of Oklahoma.” He told jurors that’s when he finally came clean.
Fortier would eventually plead guilty to 4 cases: “I’m in federal custody now,” he explained to jurors. “I plead guilty to four felony counts: conspiring to transport stolen weapons, transporting stolen weapons, making false statements to the FBI, and misprision of a felony.” He was required by the terms of the plea agreement to turn over physical evidence of his involvement with the bombing plot. He turned over the shovel, pick and axe that he and McVeigh stole from underneath the HumVee at the national guard armory the night they were trying to uncover proof that the New World Order was in the process of disarming Americans. He also turned over the explosives that he concealed in his brother’s car.
Fortier told jurors the deal he struck with prosecutors meant a maximum of 23 years confinement. If he refused to subsequently testify at the grand jury or in trial, or made any false or misleading statements to investigators, the agreement would be void and the “United States will have the right to prosecute Mr. Fortier for any and all offenses that can be charged against him in any district or state.” Additionally, the way the federal sentencing guidelines work, the prosecution could, if they chose to, recommend a downward departure resulting in a sentence potentially shorter than 23 years. But that recommendation wouldn’t be made until after the trial. And that’s how these things go. The defense must be told of the deal in place a witness is given so that they can expose to jurors a potential bias the witness may have in order to slant their testimony. Did Fortier have a reason to lie? A reason to minimize his involvement and maximize McVeigh’s? Well, even if he got the maximum 23 years – and he sure was hoping for less than that – he would not die for his crimes, and as a younger man, he surely could live for decades as a free man.
From the defense perspective, Fortier could be attacked in three major ways. First, The deal in place to secure Mr. Fortier’s cooperation was hardly set in stone, and those variables would be exposed. 23 years possibly, but hoping for far less? And the final decision wouldn’t be made until after jurors decided McVeigh’s fate? What is the real deal? What is Fortier actually getting besides an opportunity to put all this behind him and live as a free man?
Not only is he motivated to testify in order to avoid criminal liability, he was already a proven liar about the crime he was now telling jurors about. Thus became the second major avenue of attack: He has the character, the wherewithal, the moral constitution to lie repeatedly and to whomever. By his own admission, he lied to his friends, family, and the world at large through the press. And the formal venue of an interrogation room in the most famous case of his time didn’t stop him from lying either: He was dishonest to the police, investigators and prosecutors, sticking to the false narrative for months. Would he stop? He was dishonest right up until he was given a plea deal and the death penalty was taken off the table. How could jurors possibly rely on the oath he took in court?
Finally, and this last avenue of attack is a little more subtle, but a point never lost on jurors. Is the deal fair? Jurors will always filter their verdict through the lens of their own personal sense of right vs. wrong. The differences in the outcomes in a death penalty case are literally life and death: is it fair that one man dies when others who helped do not? If not, would they give McVeigh a lesser sentence to even things out? And this is where prosecutors have to be careful in offering deals, and where the defense can make great headway with jurors, especially in a death penalty case: will the deal with the codefendant offend the juror’s sense of justice and fairness to the extent it will impact their verdict?
The battle between the defense lawyer and the co-defendant happens everyday in courtrooms all across this country. Those three principles are at play each time. The technical rules for cross examining an accomplice are fixed and universally applicable, much in the same way as notes in a musical scale. But the cross examiners differ in the same way musicians do. How the lawyers weave together these principles – exposing bias, exploiting dishonest character, and appealing to a jurors’ sense of fairness – is as varied as there are songs, symphonies and composers. After lunch on May 12, 1997, Conductor Stephen Jones stood at the podium for cross examination.
The Key Witness Like Kato Kaelin
Jones began by exposing Fortier’s derisive attitude and contemptuous mockery of the criminal justice system he put on full display for the FBI’s mics in his house. A few weeks after the horrific bombing, Fortier proclaimed to his friend Lonnie Hubbard that he was the key witness in the Bombing trial like Kato Kaelin was in the O.J. Simpson trial. He called himself the head honcho. He joked that when he was called to testify, he was going to pick his nose and flick it at the cameras or ‘“wipe it on the Judge’s desk.”
Jones pointed out that Fortier’s life was heading nowhere fast. In the beginning of 1995, injured, unemployed and that his tax refund was dwindling quickly. The story he could tell was his golden ticket. Jones pointed out that Fortier was recorded telling his brother that he couldn’t wait to go out on the talk show circuit: “I found my career ‘cause I can tell a fable!” He planned to write a book and make a movie after the trials, “I can make up something juicy.” And the offers were rolling in. The worldwide media beat a path to Fortier’s door: Dateline, Primetime News, ABC, CNN, NBC, CBS, the National Enquirer. Fortier knew about all of it, according to the tapes recording his house.
Perhaps, Fortier’s testimony and appearance in court that day was all part of a much larger performance, a point Jones made when he pointed out that Fortier significantly changed his appearance for the jurors: short hair, clean shaven, no earring. The Michael Fortier the jury saw looked very different than the Michael Fortier who spent months lying to the FBI and gracing CNN’s airwaves.
Jones brought out a subject prosecutors did not: Fortier admitted that he smoked Crystal meth “on and off for 8 years” and that he hadn’t gone “more than a month without it.”
“How many times did you snort and smoke crystal meth all night and play video games like you did with Jim Rosencrans,” Jones asked?
“That would be extremely difficult for me to put a number on because it’s so many,” answered Fortier.
And it wasn’t just use, either. He sold the stuff. All of which was going on during the period of time he related to the jury he spent with McVeigh. Did that affect his credibility? His ability to recall facts accurately?
Jones walked Fortier through all the lies he told not just to his friends and family, but those he told in court on this very case even after he said he decided to come clean for the “people of Oklahoma.” When Fortier entered his plea of guilty, he made a written statement in Court denying any knowledge of the bombing. That was an obvious lie. Question by Jones: “On August 10th, 1995 you were in front of Chief Judge Russell in a courtroom just 1000 yards from where the Murrah Building had once stood, and you were under oath to tell the truth, and in front of the same prosecutor, and some of the same FBI Agents you didn’t tell them the whole truth did you, Mr. Fortier?” Answer, “No.” Even after he was put under oath supposedly admitting his guilt in Court, Jones proved to jurors Fortier’s lies didn’t stop.
Jones’ next line of attack focused on the basis of Fortier’s knowledge. The prosecution’s theory was that Fortier knew such detail about the planning and execution of the bombing because he actually participated in it right along with McVeigh and Nichols. Jones’ theory, on the other hand, was that during the time Fortier was covering his tracks in the weeks following the bombing, he was also studying. He admitted he watched news accounts, bought Time Magazine, and read newspapers. Detailed media coverage about the case was everywhere. Jones listed for Jurors all specific pieces of information Fortier was therefore exposed to: The Government’s theory of the use of the Ryder Truck to deliver the bomb; that it was loaded with plastic barrels full of ammonium nitrate and racing fuel; that the name of Robert Kling was used in Junction City to rent it; that ammonium nitrate was used in the bombing; that storage sheds were used to store components of the bomb; that a getaway car was parked near Murrah; that McVeigh was stopped about 70 miles away right after the bombing. Jones pointed out that news stories abound about his old platoon mate Terry Nichols, too: that he was from Herington; that Nichols’ Decker, Michigan farm was raided; that he and McVeigh once scouted Oklahoma City. Fortier also admitted that the details about the Quarry Burglary were in the papers, too. All of these facts, and many others, accessible to anyone who wanted to learn them. Jones charged that Fortier did so, adopting them as his own.
The next line of questioning for Fortier focused on Bob’s robbery in Arkansas, the so-called funding mission. If it wasn’t already obvious to jurors, Jones pointed out that the story about the robbery being just a one-man job as described by Fortier lacked common sense and intuitive authenticity. Nichols acted alone, with no help against an arms dealer in rural Arkansas? And the plan supposedly cooked up by him and McVeigh was to sell the stolen guns at the same places – the gun show circuit – Bob was known to frequent? Does that make sense? Fortier tried to deflect by saying he used an alias at those gun shows. Jones was quick to pounce: “How would an alias help if Bob walked up and saw his own guns, Mr. Fortier?” The sheepish reply: “It wouldn’t.” The crime was either wholly immature and ineffective in its design, Fortier’s description was untrue, or he was still hiding something. Question by Jones: “Where did all those guns go after the robbery? Were they gone before the bombing? Gone before you were being interrogated?” Answer: No and No. Jurors were then reminded that some of the guns were in his brother’s trunk, and others were with his drug-using, video-game-playing neighbor, Jim Rosencrans. Fortier’s deception went beyond merely lying; he also had the character and capacity to hide and conceal evidence he knew would link him to the bombing.
Jones circled back to that Famous CNN interview in which Fortier indignantly proclaimed McVeigh’s innocence. Jones began with a simple question: “Why did you do the interview?” Fortier answered that McVeigh was, “being hanged before there was even a trial.” Fortier went on to tell jurors he gave the interview because he felt he had to defend his friend and he got pressured into it by the media. Jones quickly reminded jurors that despite his “need to defend his friend,” Fortier offered to sell a picture of them to a media outlet for $50,000. Besides, by the time he gave the interview with CNN to protect his friend, he already told his other friends that he was ready to go on the talk show circuit where he expected to make millions. The FBI put too much pressure on him? The CNN interview was in May, during the time he was supposedly spilling his guts to the FBI, and the case was moving forward. In other words, Jones points out, Fortier was telling the world one thing, and the FBI another. Neither could therefore be believed.
According to Fortier, the occasion of testifying in front of the Grand Jury caused him to finally stop lying about his involvement in the case. Sure, he said, he could lie to his father, to his mother, to his friends, to the millions of Americans at home watching TV, and even to FBI agents for hours on end. But, he said, he just couldn’t bring himself to lie to the Grand Jury because he had too much respect for them. Jones wasn’t buying it. He reminded jurors through Fortier that before he was set to testify in front of the Grand Jury he claimed he so genuinely respected in May, he only agreed to talk after he got a he went to OKC, and summoned two FBI agents, Mr. Zimms and Mr. Volz, and told them, “I can give you Tim McVeigh, but I don’t want to be prosecuted.” Question by Jones: “that would have solved all your problems, wouldn’t it? No prison, you could go on your media tour, sell books, make your million bucks, avoid prison, and get all the fame and money you could want?” Fortier was trapped. He was either concerned about his friend, or about being famous, or about saving himself from being prosecuted. Jones, continued: “What about those 168 people that died? Weren’t you concerned about them?” Fortier tried to wiggle free: “I had a dual concern for what I should do – what is right and for self-preservation. I didn’t want to go to jail.”
Jones concludes by asking Fortier about the proffer agreement. You’ll recall that it was the formalized agreement between the government and Fortier wherein nothing Fortier told them could be used against him. Jones asks, “Who can that proffer agreement be used against Mr. Fortier?”
Answer, “Whoever it implicates.”
“It implicates you. Can it be used against you?”
“No.”
“Mr. McVeigh here?”
“Yes.”
“It’s kind of like the sword of Damocles hanging over your head, isn’t it Mr. Fortier – that 23 year sentence?”
“Yes.”
“And the string that holds the sword can be cut and the sword fall on your head if you lie?”
“Theoretically, yes.”
“I can’t cut it, can I, Mr. Fortier?”
“No.”
“On the other hand, it can be caught, can’t it? By Mr. Hartzler, Mr. Ryan and the rest of the Government of the United States over there – they make the sentencing recommendation to the court, don’t they?”
“Yes.”
“And they [won’t] make their recommendation until they have ‘evaluated your cooperation,’ correct?”
“Yes.”
“And it would not be a sign of cooperation for you to say that Mr. McVeigh was innocent, would it?”
“No, it would not,” Fortier replied, but then added defiantly “because that would be a lie.”
–End of Episode 5–