Listen: The Defense uncovers a mystery for jurors about the case that remains unsolved to this day. They attack the integrity of the FBI Lab, and show jurors how one major finding on the only piece of physical evidence from the Ryder Truck with chemical residue can’t be verified. Find out why on this, the final episode of our case study on Timothy McVeigh’s trial. The Script to the Show and some of the trial pictures follow.
Timothy McVeigh vs. The USA – Episode 6
Jurors began their quest to answer those three questions “yes” or “no” in a federal building across the street from Murrah by listening to the recording of the hearing presided over by Cynthia Klaver. Guided by the calling card recovered from Terry Nichols’ house, they were taken from there to rural New York, to Kingman, Arizona, to Junction City, Kansas, to the Ford Plant in Louisville, Kentucky. The prosecution decided that the time had come for them to be taken back to downtown Oklahoma City.
John Hurley works security at the Regency Tower Apartments. The apartments face 5th street next to the Murrah building. Affixed to the Regency Tower apartments are 14 cameras, and they all send their signal back to a VCR for recording. Hurley is responsible for saving them, and making sure that the date and time stamp is accurate. How? Every Sunday he checks them against the weather reports for an accurate time. He recovered footage from two specific times – April 16th at around 8:00 PM and April 19th from 8:55 A.M. until the explosion interrupted their electricity. An examiner of photographic evidence for the FBI named William Stokes reviewed that footage. He came to two very significant conclusions: By measuring the relative appearance of taillights, headlights, and the space between the tailgate and the brake lights, he testified that the truck captured passing in front of the Regency Towers 8:00 P.M. on April 16th was the exact same blue and white 1984 GMC pickup with a camper belonging to Terry Nichols. Second, in every measurable way, the video from April 19th at 8:56 A.M. depicted the 20-foot, yellow Ryder truck the government contended was leased to “Robert Kling” at Elliott’s hardware whose axle was 7 minutes away from making a return trip.
Agent Zimms testified next, telling jurors of a simple experiment he performed. You will recall that Marife Nichols said that her husband Terry received a call around 3:30 PM on Easter Sunday, 3 days before the bombing. Phone records proved that the call originated from room 25 at the Dreamland Motel, paid for by the Spotlight calling card. Zimms drove from Terry Nichols’ house to Murrah. Keeping the speed limit, the 244 mile trip took 4 hours, 20 minutes. If he allowed for the estimated time to pass for the phone call and left Nichols’ house for Oklahoma City immediately thereafter, he arrived right at 8:00 PM, the exact time Regency Tower surveillance cameras captured the blue and white pickup.
Reconstructing the Bomb
The lease agreement for the Ryder truck signed by Robert Kling had a set of numbers in the top right corner: “108P529.” This is the key code system for the lock and key in the Ryder truck. It’s a 10-bit system yielding 253,000 possible combinations. Charles Edward works at Hurd Corporation, the company that made the lock and key system the Ryder Truck. Using that key code, his job for jurors was to rebuild an exact replica of “108P529,” and test it against a key investigators recovered in the alley that Michael Fortier identified as the one McVeigh was going to use as a path to his getaway car adjacent to the buffering building. When Edward tested the key against the replica, it was a perfect fit.
Patrick Daly is a Supervisor with the FBI Evidence Response Team in Chicago. He’s also a certified bomb technician having worked the World Trade Center bombing in 1993 and the bombing of Columbia’s equivalent to the FBI building in Bogata in 1995. His job was pretty easy to describe, but hard to imagine in scope: collect and catalogue all pieces of physical evidence from the bombing. He and his teams were tasked with sifting through all of the debris. To do so, he divided the crime scene into 5 major grids. Grids 1 – 4 comprised the Northwest, Southwest, Northeast and Southeast areas that surrounded Murrah by about a mile and half. Murrah was Grid number 5. He had approximately 250 people working the 5 quadrants. Dump trucks full of material collected from the crater in front of Murrah were taken to another location, where he had another 80 evidence collectors. Known as the sifting site, it was 10 miles away at the Oklahoma City Sheriff’s Office. In all, 1035 tons in 129 truckloads were carried from Murrah for processing. The pieces varied in size and weight from small, like a piece of wire, to very large, like an axle.
In addition to the axle that landed on Richard Nichols’ Ford Festiva, investigators were able to recover many pieces of the Ryder truck. In order to solidify the connection between the Ryder truck and the bombing, prosecutors presented an impressive demonstrative aid to jurors. Edward Paddock is a mechanical engineer, design engineer, and development engineer who worked for Ford for 34 years. If any part of the Ford F700 was recovered, he could recognize it. You’ll recall that the last 5 digits in the VIN represent the vehicle’s place in the assembly line. Prosecutors repurchased the closest truck to an exact replica of the suspected Ryder Truck, #26078 – the next truck off the assembly line. Using this truck, Paddock showed jurors how parts would have looked originally. He then matched those parts to the ones recovered from the scene. In addition to the truck axle we discussed in the homicide chain, Paddock identified the tire rim, the frame rail, the cab mount, the springs, the frame, the exhaust manifold, the crankshaft, the water pump, and 4 of the 6 wheels. A piece of the interior door frame was not recovered from the sifting site; it was recovered inside the 8th floor of the Regency Tower hundreds of feet away. Piece by piece, jurors were shown how mangled parts recovered from the scene belonging to #26077 matched the intact ones from its next-in-line twin, #26078. The identification of the transport vehicle now complete, prosecutors began tying it all together.
Chemical Connections
Since prosecutors couldn’t directly put the bomb in McVeigh’s hands, perhaps they could put the remnants of the bomb on his hands, his clothes, or in his car. Steve Burmeister was the supervisor at the FBI over all chemists and technicians. He specialized in explosive residue analysis wherein he would examine objects to determine whether certain explosive residues were present. Three residues were particularly relevant in a bombing case: 1) Ethylene Glycol Dinitrate, or EDGN, is a man-made substance unique to explosives; 2) Pentaerythritol Tetranitrate, or PETN, is another highly explosive organic compound; 3) Nitroglycerine.
Among all of the items he analyzed, he made significant findings on clothes McVeigh wore when he was arrested and a critical piece of evidence that became known in the trial as “Q507.” It was a red and yellow piece of the cargo bay of the Ryder truck. Here are his findings:
The lime green earplugs recovered in McVeigh’s pocket were positive for EDGN, PETN and Nitroglycerine. The shirt that read, “Sic Semper Tyrannis” and the long sleeve t-shirt underneath were both positive for PETN. The inside of one of McVeigh’s jeans pockets was positive for nitroglycerine. His jacket and boots, however, were negative. On Q507, the piece of the Ryder Truck recovered from the scene, Burmeister found a white and clear crystalline material embedded by the blast force on the wood that would have faced the inside of the cargo bay if fully intact. All three instruments he used confirmed that the crystals were ammonium nitrate crystals, including aluminum, silicone and sulfur. He went to Joplin, Missouri to visit the manufacturer of the prills, Industrial Chemical Industries, known as ICI. According to their chemists, ICI is the only company to use Petro AG and Talc to coat the prills. ICI also distributed these unique prills to MidWest Co-Op, the place where they were eventually purchased by “Mike Havens” according to the pink receipt with Timothy McVeigh’s fingerprints recovered in Terri Nichols’ house. Burmeister concluded his testimony by telling jurors that the actual prills recovered from Nichols’ house chemically matched ICI’s uniquely coated prills. Both of them had the same elemental profile as the crystalline material found on Q507, the Ryder truck panel. The bomb making materials, therefore, chemically connected Q507, McVeigh, Nichols, Elliott’s, and Murrah.
Christopher Tritico stood on behalf of Timothy McVeigh, beginning his cross examination of FBI Agent Steve Burmeister by pointing out all the places PETN, EDGN and Nitroglycerine – the supposed tell-tale components of the Means of this crime – were not found: all 3 storage facilities that supposedly housed the bomb, the defendant’s car, including the steering wheel. He also pointed out that not a single prill was recovered from the crime scene.
What about the PETN and EDGN found on McVeigh’s Clothes? Mr. Tritico introduced jurors to a major defensive theme: contamination in the labs. Jurors learned that Burmeister’s lab table was not the first place within the FBI lab those clothes had been. They first went to the photographer, then to the hair and fiber lab, then to Burmeister’s lab. No tests were ever conducted in any of those areas for the presence of contaminants. Same with the Noble County Jail where McVeigh’s clothes were stored. Burmeister made no attempt to try and track down what other items were in the same bin – not bag, but bin – with McVeigh’s clothes. He also made no attempt to see who, if anyone, might have been charged with possessing or using any explosives whose property might have been mixed in with or near McVeigh’s. As for the Sic Semper Tyrannis shirt? Burmeister conceded that it’s possible that McVeigh’s gun might have been the source of the nitroglycerin, not a bomb.
Throughout his testimony, Agent Burmeister was confronted with the Defense’s contamination theory. Sure, a lab table may have been cleaned, but what about the floors or doorknobs? The planes used to transport the evidence from the field to the lab? The transport vehicles? Employees who frequented a testing bomb range who came in and out of the lab? No tests, no controls, no inventory. Is the lab ever tested to see what contaminants there may be. Answer, no. Is there a general lab wide protocol for the storage of raw explosives? Answer, no.
Tritico next attacked Agent Burmeister’s results on Q507. ICI – the company that manufactured all those ammonium nitrate prills with the unique Petro AG and Talc covering – never got the chance to examine Q-507. Why not? After Burmeister examined and identified the crystals, he took the exhibit to ICI. When he got there, there were no crystals. They were gone. Where’d the crystals go? “I couldn’t find them,” the agent replied. What else was not on this piece of Ryder Truck? No fuel oil. No Nitroglycerine. No Methane. And now, no crystals. Tritico uncovered a major lapse in the government’s case: Q507 was the only piece of evidence from the entire crime supposedly possessed with these crystalline particles – and they were gone.
On Redirect, Prosecutor Beth Wilkinson introduced a picture of those crystals taken by Burmeister during the examination. Jurors would have to choose whether to believe he fabricated the picture or made up the whole story about the crystals. And what about the lack of fuel oil, the blasting caps and the other components? They wouldn’t be found, according to Agent Burmeister, because they would have been consumed in the explosion. Wilkinson next addressed the challenges to the findings on the earplugs and clothes. She pointed out through Burmeister that firearms and their components do contain nitroglycerine, but they do not contain PETN or EDGN. These two chemicals, in fact, are totally inconsistent with the handling of firearms.
Finally, she addressed Tritico’s attack on the integrity of the lab at the FBI, and the potential for contamination. The items we discussed were not the only items tested. Hundreds of other tests were conducted on hundreds of other items, on this case and in others at the same lab. Explosive residue was not found in any of those other instances. Even on tests conducted on items recovered in Terry Nichols house where prills and other components were present – residue wasn’t found anywhere else. If contamination was a pervasive problem at the lab, then all the other items tested by the lab should be positive, too. But they weren’t, and that presented a significant blow to the defense’s contamination theory.
The Government Rests
The prosecution’s case began when Patrick Ryan called the first witness, Cynthia Klaver. It ended when he called number 143, Frederick Briggs Jordan. He was the Chief Medical Examiner in Oklahoma, and had been since 1983. He explained to jurors the way the bodies were identified and how death certificates were issued. Up to that point in the trial, 134 men, women and children had been identified by surviving witnesses like the Marine from Allen, Texas, or Susan who joked about a cigarette break, or Ryan with the slideshow, or Eric standing over the typewriter, or Florence with the printer cartridge, or Anne who’s little one turned a vase into an alarm clock. These 134 men, women and children were chosen as named complainants because of their direct connections to Murrah. Dr. Jordan explained that 29 others were visiting, and 5 others died nearby: 1 at an Athenian Restaurant, 2 at the Water Resources Board, 1 in the parking lot, and 1 rescue worker. 168 in all.
“Your Honor,” Patrick Ryan announced, “on behalf of the United States, I’m pleased to announce that we rest.”
Our Proof Will Show Different
To sum up the prosecution’s case, McVeigh and his accomplices spent the months leading up to the bombing procuring all of the components of the bomb, aided by the Spotlight calling card, fueled by a hatred of the Government. In the days leading up to the crime, McVeigh rented a room at the Dreamland and bought the Mercury Marquis on April 14; on April 15th, acting as Bob Kling, he called Elliott’s and reserved the 20 foot Ryder Truck for the following Monday, April 17th. On Easter Sunday, April 16th, McVeigh called Nichols. Hours later, the video tape at the Regency Towers captured Nichols’ truck driving down 5th street where he met McVeigh, who stashed the Mercury getaway car at the end of the alley where investigators eventually found the Ryder truck key. The Next day, Monday April 17th, a surveillance camera at McDonald’s in Junction City captured McVeigh just a few minutes before the Ryder truck was actually picked up from Elliott’s. At 8:55 A.M. on the morning of the bombing, McVeigh passed in front of the Legacy Apartment cameras in his newly rented Ryder truck, parked the truck in front of Murrah, initiated the explosion, walked down the alleyway where he dropped the Ryder key, got into his recently stashed Mercury, and headed north on I-35 towards. 77.9 miles later, he was arrested by Trooper Hanger.
In their quest to create reasonable doubt, the Defense’s case stood on 3 legs: lapses in the government’s eyewitness identifications and timeline, a shocking mystery in the rubble that remains unsolved to this day, and a contaminated laboratory. Stephen Jones summed it up like this in his opening statement: “Our proof will be evidence concerning contamination at the scene, at the laboratory, lack of skilled analysis, using people who are, shall we say, more law enforcement oriented than scientific oriented. And just like the Bridges [calling] card, just like the eyewitness identification and the other matters that we will present in evidence, instead of it being a scientific inquiry, the evidence, our proof will show, was slanted towards the prosecution’s theory. Serious consequences for the FBI and our client grow out of that; and at the appropriate place and in the appropriate manner and with the appropriate witnesses, we will discuss with you in detail those scientific tests and personnel and what happened at the Murrah Building and in the transportation and in the FBI laboratory…Whatever Linda Jones saw or did, or whatever Stephen Burmeister examined was a Typhoid Mary before they got it. If Tim McVeigh built the bomb and put it in the truck, our proof will be that his fingernails, his nostrils, his hair, his clothing, his car, his shoes, his socks would have it all over them. They don’t. Out of 7,000 pounds of debris, there is less than half a dozen pieces of evidence of a forensic nature; and we will go over each one of them with you. And our evidence will be that they do not prove Mr. McVeigh guilty or a participant in this bombing.”
Lapses and Gaps
Straight out of the gate, jurors learned that someone other than McVeigh might have been in Room 25. John Davis worked at a Chinese restaurant in Junction City. On April 15th, he was asked to deliver Moo Goo Gai Pan chicken to room 25 for a customer with the last name of Kling. When he got there, a man he described as 180 to 190 pounds with short blond hair, roughly collar length in the back, gave him 11 bucks to cover the 9.65$ charge and tip. That person, according to Davis, was not Tim McVeigh.
Herta King worked in Junction City. Her son David lived at the Dream Motel in Room 24. She told jurors that on Easter Sunday, April 16, she went to visit her son, to bring him some candy and a little basket of liquor filled chocolates. When she pulled into the Dreamland, she saw a yellow Ryder truck. Another witness, a high school senior at the time, was good friends with the Motel Owner’s daughter. They spent Easter together at the Dreamland. While there, she saw a yellow Ryder truck underneath the sign. She knows it was Sunday, she told jurors, because she was wearing nice clothes and had just left church. It was, after all, Easter Sunday. Something didn’t fit. The Government’s proof was that Kling didn’t pick up the Ryder truck from Elliott’s until the next day.
You’ll recall that Vickie Beemer, the woman from Elliott’s who actually wrote up the receipt for the Ryder truck who said that the man in her store presented the driver’s license that she input into the system? She told jurors she couldn’t say with certainty whether Timothy McVeigh is Robert Kling. Also, Eldon Elliott first told the FBI that when Robert Kling came in, he was not alone. There was another person with him: a white male, about five-seven or five-eight, wearing a blue and white ball cap with 3 stripes. Who was he?
No Human Being With Two Left Feet, Except When Dancing
You’ll recall that Dr. Frederick Jordan Briggs testified for the prosecution as the chief medical examiner who determined the cause of deaths for the named complaining witnesses. The Defense didn’t ask much on cross, waiting instead for their own case to bring out perhaps their best piece of evidence that someone else was involved: item P71. In addition to whole bodies, the Medical Examiners also received parts of human anatomy, separate from the bodies themselves. 98 of them to be exact. Anthropologists analyzed these parts, and determined that some of these parts actually came from the same person. In all, 71 parts needed to be matched with their victim. Jones focused on a subset of those 71: amputated legs.
There were a total of eight bodies with amputated left legs. The problem? Authorities had nine left legs. “We have one left leg that we do not know where it belongs,” Dr. Jordan Briggs told jurors. Investigators matched the footprint on the extra leg to the birth records of a woman in New Orleans identified as one of the victims. She was already buried. Her body was exhumed and inspected. They determined she was buried with the wrong leg. They corrected themselves, and re-buried the woman, now complete. They took the leg that she was buried with and renamed that P71. Investigators were never able to match that left leg with its proper owner. On cross-examination Prosecutors pointed out that one of the bodies was buried without a leg, implying that P71 possibly fit that person’s body. Jones was quick to point out, though, that the person buried without a leg was buried without their right leg. P71 is undoubtedly a left leg. Jones concluded his point: “And as a physician, Dr. Jordan, you know that there is no human being with two left feet, except when dancing.”
You’ll recall at the very beginning of the show, I mentioned that a witness had seen two men get out of the Ryder truck – one a white male that she could not identify as McVeigh, and the other she described as olive-complected and otherwise clean cut. Was it possible that the leg belonged to him? Jones called Dr. Thomas Marshall to the stand to discuss. He is a commander of the order of the British Empire, one step below knighthood. He is also a past president of the International Association of Forensic Sciences. One of his areas of expertise is in explosive injuries. In particular, he worked in Northern Ireland during political upheaval that included numerous bombings. Although none of those were nearly as big as the one in Oklahoma City, he did have significant experience studying the effects on the human body of bombs like the one McVeigh was alleged to have used. He outlined for jurors 6 categories of injuries that indicate to the distance a person would likely have been when the bomb went off.
He outlined his 6 categories as follows: complete disruption, in which the body is literally “blown to bits” and the parts can be distributed over an area of 200 yards radius; Mangled, in which parts of the body can be severely lacerated or severed; collapsing structure injuries, where wounds are caused by the collapse of buildings or structures; flying missile injury, where a fragment is hurled away with considerable force causing injury and death when it hits a person; burns, either from the bomb itself, indicating very close proximity to it, or something the bomb ignited burned the victim; the final category he called “blast effect” injuries, in which the force of the blast causes death, even though the visible injuries do not appear sufficient by themselves to be fatal.
Dr. Marshall reviewed all of the evidence, including the notes, pictures and photographs from the medical examiner’s office. His conclusion? P71 means victim number 169, and that person that must have been near the bomb when it exploded. Further, since there was no other unidentified body, the body to which the leg belonged must have been otherwise completely disintegrated. Dr. Marshall explained to jurors that there have been instances where a body part remains intact though the rest of the does not. He told jurors about a terrorist who carried a bomb into a shed. All told, 8 people were killed. During the autopsies in that case, Dr. Marshall started examining the bits of skin and muscle that were not independently identifiable as any part of the 8 bodies. He told jurors that he eventually discovered male genitalia; but none of the eight bodies were missing one. There must have been a ninth victim. “My conclusion was that this other person was carrying or touching the bomb when it went off to be so badly disintegrated.” The same principles, according to Dr. Marshall, were at play in this case. P71 proved that someone was unaccounted for. Up until that moment in the trial, the only people involved were McVeigh, Michael Fortier, Terry Nichols. Other witnesses may have known about the plan and did nothing to stop it, like Jennifer McViegh and Lori Fortier. But until P71, jurors never received any physical proof that someone else may have been involved. For Stephen Jones and the defense, it proved to be a gaping hole in the government’s case that made the rest of its proof so incomplete as to be unreliable.
The Problems with Eyewitness Identification
Throughout the trial, several eyewitnesses identified McVeigh based on their own memory of what he looked like. The list includes Glynn Tipton from VP Fuels, Eric McGown from the Dreamland Motel, Thomas Manning from Firestone, David D’Albini the manager from McDonald’s, and of course Eldon Elliott. To rebut the strength of this testimony, the Defense called Dr. Gary Wells. Dr. Wells lives in Ames Iowa, and is a professor of Psychology at Iowa State University. His Specialty? Human memory and decision-making. In particular, he studies eyewitness identification of criminal suspects from lineups and photo spreads with a particular emphasis on the procedures used therein. Having conducted over 10,000 lineups and 60 separate studies, he has identified 4 rules that make the identification of a suspect from a photographic lineup reliable. “Every rule that’s violated increases the likelihood or chance that the identification is inaccurate.”
The lineup must have distractors or fillers that both match the general description of the suspect and are known to be innocent. Second, the person who administers the lineup should not know which person is the suspect. Third, the witness must be instructed that the person in question might or might not be in the photo spread. Finally, the witness should be asked how certain he or she is as well and what is the basis for the witness’s knowledge. The defense’s contention must have been clear to jurors. The prosecution’s eyewitnesses identified McVeigh in lineups that were not reliable. And if the lineup process was not reliable, then the identification of McVeigh wasn’t either.
The attack on cross examination by prosecutor Scott Mendeloff came on two fronts. First, although Dr. Wells says the failure to follow the proper lineup process might produce unreliable results, that does not necessarily mean that the identifications were wrong. He is only telling jurors that the procedures were, in his opinion, inadequate. Second, the inaccuracies in the faulty eyewitness identification studies he cites do not take into account the existence of any independently corroborating evidence. Take, for example, Tom Manning’s identification of McVeigh as the man who bought the Mercury Marquis. No matter the shortcomings of the lineup, independent facts converged, proving Manning was right when he identified McVeigh: 1) McVeigh was arrested in that very car within three days, 2) McVeigh told Trooper Hanger he, “bought it from a guy named Tom in Junction City,” and 3) the bill of sale contained McVeigh’s contact information.
Typhoid Mary
Jones’ levied his final attack against the ties Agent Burmeister secured between the chemical components, the Ryder Truck, and McVeigh by focusing on the contaminated laboratory conditions and the improper chain of custody.
They started with Frederic Whitehurst. He’s a chemist and supervisory special agent of the FBI, and worked at the same lab as Agent Burmeister. He graduated from East Carolina University in 1974, got his PhD at Duke University in 1980, conducted Post-Doctoral research at Texas A&M, and somewhere along the way got a Law degree at Georgetown University in Washington D.C. His expertise in explosives is both academically and experiential. In the United States Army he served as a mortarman in Vietnam. He also studies explosives residue analysis.
He investigated and studied the lab – his own – in which Agent Burmeister and others analyzed the evidence. He concluded that the evidence storage and evidence handling areas were contaminated with organic explosives, including PETN and EDGN. These were the places where the evidence tested in this case was checked in when it was brought into the lab. Dr. Whitehurst explained the significance: “If we’re processing evidence and we are contaminated ourselves, then we don’t know whether our finding of explosives residues on materials is a result of our contaminating the material ourselves or the result of the explosives residue having been on the evidence before it ever got to us.” Residues travel from box to box, and item to item, too. He conducted a study on blue jeans and nitroglycerine. He hung a couple pairs of blue jeans near a bomb he exploded made up of Ethylene Glycol Dinitrate – EGDN. He had another set of blue jeans that wasn’t near that bomb. He put them all in individual plastic bags and stored them all in the same box. After a period of time, the EGDN was on all the blue jeans. And then he tested the outside of that box. He found PETN. The problem was that PETN wasn’t in any of the bombs he used. And the box he stored in his office was supposedly clean. The PETN on the outside of the box, therefore, must have come from the lab itself.
He also explained that the physical conditions in the lab were substandard. Carpet shouldn’t be in the lab, and shouldn’t be subjected to cleaning with an industrial grade vacuum cleaner. Carpets are impossible to keep clean, microscopically speaking. People walk by , including people that have come from the bombing range in Quantico. Overall? “I’ve had a concern about the chain of custody ever since I got in the lab. We very often don’t have a place to store our evidence, so it stays out overnight in the hoods, or even out in the lab. I don’t know how we can legally justify that to say that evidence was, you know, totally under our control. There were no procedures for checking people out that came into the lab.” He offered the flow of McVeigh’s clothes throughout the lab to be photographed prior to chemical testing as an example. They were received in a box, placed on a carpeted floor, unpackaged, placed on a table, photographed, repackaged and then stored for chemical analysis. This entire process, according to Dr. Whitehurst was wholly inappropriate and could lead to contamination.
What about Q507? Recall that Agent Burmeister told jurors that the crystals made of ammonium nitrate were deposited on the inside of the Ryder truck panel as a result of the blast force. Whitehurst disagrees. “I don’t know how that could have happened. [A]mmonium nitrate is hydroscopic, it picks up water. If you laid it out in a room, the crystals would pick up the moisture in the air and pretty soon, there’d be no more crystals. Only a little spot of water.” In his opinion, Burmeister couldn’t have seen the crystals because the moisture in the air would have caused them to disappear long before he ever got them into the lab.
Prosecutor Beth Wilkinson cross examined Dr. Whitehurst, skillfully using his own conclusions to prove her points: “You haven’t found these residues on numerous pieces of evidence that have also been tested in this case and in others, correct?”
Answer, “Correct.”
“So by common sense we know there isn’t systemic contamination in the lab?”
“Yes.”
“Your team checked spots in Agent Burmeister’s area, and did not find contamination, true?”
“True.”
“And what about Agent Kelly’s area?”
“No finding of contaminants in the areas we swabbed.”
“And the general common sense idea is that when the evidence is tested and there were no residues found, that is a good indication that there is no contamination as to that evidence?”
“Yes.”
“The fact that there were very few findings of high-explosive residues in the hundreds of tests that Agent Burmeister performed makes it less likely there is systemic contamination?”
“Yes.”
Final question, “Dr. Whitehurst, based on your knowledge of this case and your experience with working with Agent Burmeister, do you have any knowledge of any actual contamination of any of the evidence in this case?”
Answer: “I have no knowledge of any actual contamination of any evidence in this case.”
A Game with no Goal Posts
The last set of arrows fired at Agent Burmeister by the Defense came from forensic chemist and Royal Society of Chemistry member John Lloyd. He was called to offer an opinion about the protocols at the FBI laboratory. Generally speaking, there should be rules in place governing the basis of the techniques used, the qualifications of the people in the lab using them, specifications for the reagents and instruments, step-by-step details for the procedures to be followed, and how results should be interpreted.
A proper protocol would delineate a qualifying quantity of the presence of a substance before the lab would certify that the substance is present on the questioned item. The protocol would also require that the lab determine the amount of “background contamination” present. It is impossible for any lab to be contaminant free, according to Dr. Lloyd. Therefore, the amount of contamination that already exists in a lab needs to be known and quantified before samples of any suspected items are taken and measured. And without a proper quantity, one that is beyond the background contamination levels, a scientist could not conclusively say that a questioned item had the material on it or whether the item tested positive by virtue of being in the contaminated lab. And since the lab that tested McVeigh’s clothes and the piece of the Ryder Truck did not identify or report a quantity of background contamination, the value of the results is very limited. “If one doesn’t know the quantities, it’s very difficult to place an interpretation on them. It is, in my view, akin to the FBI playing a game with no goal posts whatsoever.”
The packaging of McVeigh’s clothes was also forensically unsound because it was unsealed, and because it was stored in paper. Paper is permeable, meaning explosives and particulate matter could permeate storage bags in a matter of hours. The need to quantify background contamination doesn’t just apply in the lab, either. It applies to the car and airplane used to transport McVeigh’s clothes, too. Yet, nobody from the FBI knows what level of background contamination is present in any of the places that those items passed through. Finally, positive findings on the clothes were not quantified, either. Based on all of this, Dr. Lloyd told jurors that the results of the tests on McVeigh’s clothes should not be relied upon.
Moreover, Dr. Lloyd told jurors that if McVeigh had recently come into contact with PETN, it likely would be present on the Mercury’s steering wheel, the radio, and other places in the car he would have touched. But the testing on the car was all negative. The earplugs? They are made of an additive that is “confusable” with PETN, called DNPNT. Depending on the conditions, DNPNT could give rise to a positive test that could be mistaken for the actual explosives. The Boots? Negative for ammonium nitrate and fuel oil. In Dr. Lloyd’s words: “I find it surprising that anybody could have handled the quantity of ammonium nitrate that has been alleged and not become contaminated even with a single prill or single particle.” Recall that the Government’s theory is that the coating on the Prills from Terri Nichols house came from ICI. Not so, according to Dr. Lloyd. First, the chemical “Talc” is not unique to ICI. Second, if it were used, the compound should also have been present on Q507. Even if the Ammonium Nitrate crystals were gone, the talc should remain. But he tested it, and it wasn’t there.
Prosecutor Beth Wilkinson began her cross examination by attempting to expose a potential bias: every time he testifies for the defense, he always testifies about the possibility of contamination. Even if the labs had done some of the things he criticized the FBI for not doing – taking control samples, wearing protective gear at all times, things like that – the possibility of contamination exists. Next, his opinion that there should have been traces of Ammonium Nitrate in the Mercury assumes a sequence of events that the government didn’t necessarily agree with: that McVeigh built the bomb, drove it to OKC then got out and jumped in the Mercury. Question by Ms. Wilkinson, “if he built the bomb the day before and changed clothes and showered and then drove the truck to the Murrah building, he would not have residue on his hands or boots, correct?” Answer: “if he changed his boots and washed his hands, clearly there would be no Ammonium Nitrate upon those.” Finally, she pointed out that there are no studies verifying the migration of PETN through cardboard boxes and paper bags. None. Nor are there studies about PETN migrating through a plastic bag. For the prosecution, then, PETN was found on McVeigh’s clothes because he got it on them while preparing and transporting the unique instrument of his crime.
Both Sides Rest
The guilt phase of the trial styled the United States of America vs. Timothy James McVeigh ended after the morning session on Wednesday, May 28th, 1997. Closing arguments would begin the next day.
On Thursday, May 29th, 1997, 5 lawyers stood in the well of Judge Matsch’s packed courtroom tasked with “carving out a modicum of sense out of days of chaos” to borrow a phrase from from one of my favorite books, Anatomy of a Murder. Arguing on behalf of the United States were Larry Mackey and Scott Mendeloff. Arguing on behalf of Mr. McVeigh were Stephen Jones, Robert Nigh, and Christopher Tritico. You’ll recall the 3 principal questions jurors were 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?
Jurors were given 171 witnesses, hundreds of exhibits, and answers to thousands of questions during the 4 week guilty / not guilty phase. From this mass of contentious evidence stemming from the largest investigation in the history of the United States, we have this, the Murderous Design of Timothy James McVeigh.
The Murderous Design of Timothy McVeigh
We’ll start where all investigations begin: the appearance of the crime scene itself. Unlike other cases we’ve studied, this crime scene was was discovered the instant it was created, a feature unique to public bombings. By conducting an autopsy of sorts on the Alfred P. Murrah Federal Building, experts determined that the weapon was detonated on 5th street. The blast was deliberately directed into Murrah, causing a bite mark wound 9-stories high. From this wound, investigators were able to determine the type of weapon that caused it: one midrange velocity homemade explosive device, weighing somewhere between 3,000 and 6,000 pounds.
As we learned from Jud Ray in Charlie Albright’s case, investigators must identify and study the victim in the case, a process he called victimology. The purpose is to determine how and why the paths of the victim and killer crossed, and to begin to uncover Motive. The target was a building owned and operated by the United States Government. Given the nature and extent of the damage, the animus appeared to be directed at the building as opposed to any particular person inside. Thus, the crime appeared to be one of revenge or redress against the building itself and what the bomber believed the building represented.
Some evidence at a crime scene may have qualities or characteristics that lead investigators from that crime scene to a suspect. In this case, that piece of evidence fell from the sky and landed on a Ford Festiva: an axle with a VIN number PVA26077. Investigators learned that the VIN number belonged to a specific Ryder truck obtained by a “Robert D. Kling” at Elliott’s Body Shop in Junction City, Kansas. A neighborhood canvas revealed that a man fitting the description of “Robert D. Kling” was seen with a yellow Ryder Truck at the Dreamland Motel. Motel Records indicated he registered under the name Timothy McVeigh from Decker, Michigan. Investigators ran his criminal history in a National Database, and learned that a “Timothy McVeigh” was arrested the morning of the bombing just outside Oklahoma City. That prisoner was awaiting a bond hearing in the Noble County, Oklahoma jail. He was quickly taken into custody by Federal Agents, and the investigation into Timothy McVeigh began. Did he possess the motive to blow up Murrah?
From his writings and his own statements to various friends and family members – some of whom were involved, some not – McVeigh’s worldview seemed to fit the profile of the suspected bomber. To McVeigh, the tragedies at Ruby Ridge, Idaho and at the Branch Davidian Compound near Waco, Texas proved that the United States Government was disarming its own citizens so that they could be controlled. Action had to be taken. McVeigh’s writings reveal that he was determined to incite an uprising to fight against the beginnings of a “socialist government,” where citizens would be disarmed house by house. He held politicians, the ATF, the FBI, and the “government” as a whole responsible. He would be the impetus for a second American revolution.
His writings revealed more than an anti-government sentiment; they went the extra step of making actual calls for destructive action. He studied his craft and practiced, acquiring not only the ingredients, but also the skill to use them. Receipts proved he once ordered a book on how to make explosives, and there were instructions of sorts in the book he seemed to obsess over: The Turner Diaries. He diagrammed his shape-charge for the Fortier’s using soup cans. He pointed out the type of vehicle he would use to dispatch the bomb. He showed Michael the target in downtown Oklahoma City and shared his getaway route. He also disclosed to them some of the bomb making ingredients: racing fuel and ammonium nitrate.
Just like the investigation into a bullet recovered from an autopsy might lead to the identity of the shooter, the investigation into the components of the bomb recovered from Murrah would lead to the identity of the bomber. Murrah’s Autopsy and the analysis of some of the remnants therefrom revealed the presence of a bomb made of ammonium nitrate, fuel oil, and a Ryder truck. McVeigh and Nichols used the Calling Card to seek and procure these explosive bomb making components from racetracks, farming cooperatives, hobby shops and fertilizer companies all over the midwest. Receipts not only proved that they succeeded in obtaining those materials, they also collectively confirmed the identity of the conspirators. One receipt in particular proved to be a vital connective force. The pink triplicate form from the Midwest Co-op hidden and tucked away in Nichols’ kitchen drawer tied together Nichols, McVeigh and the main component of the bomb: ammonium nitrate.
The receipt also proved McVeigh’s character for stealthiness and deception. While the aliases he used might have been tough for jurors to keep straight – Mike Havens on the pink receipt, Shawn Rivers on the storage shed receipt from Herington, Kansas, Tim Tuttle to his sister and at all those gun shows – the fact that he was proven to have used an alias on so many occasions is impossible to forget. He also used the Decker, Michigan address even though he didn’t live there. While it is true that the address belongs to Nichols and not McVeigh, there is overwhelming proof in the form of fingerprints and corroborated eyewitness testimony that McVeigh – not Nichols – used it in 3 significant places: 1) the registration card for room 25 at the Dreamland Motel; 2) the bill of sale for the Mercury Marquis; 3) the order form for the calling card. It was not difficult, then, for jurors to believe the name “Robert D. Kling” on the Ryder truck agreement could be just another in a growing list of deceptive acts.
And on this very point, McVeigh’s own handwriting betrayed him. You’ll recall throughout the trial that various people who knew McVeigh authenticated letters he wrote because they were all well familiar with his handwriting. Those letters all revealed McVeigh’s motives and plans, a topic we’ve discussed already. But that’s not the only reason they were important. For the first time in the trial, during closing arguments, Prosecutor Larry Mackey and his team unveiled a damaging exhibit weeks in the making. They enlarged the signature from the Ryder rental agreement and put it in a column on one side of a large poster board: R-O-B-E-R-T D. K-L-I-N-G. On the other, they put the corresponding digits culled from McVeigh’s handwritten letters introduced by his sister and friends. The capital R’s, the initial D, and every other scripted letter seemed to match perfectly.
Finally, any doubts about that signature might have been eradicated by the McDonald’s surveillance tape which unmistakably puts McVeigh a 20 minute walk away from Elliott’s, 20 minutes before the signature.
Once the means of the crime were affixed to McVeigh, the stealthiness and deception he used to obtain and store them also proved their criminal design. Take for example the peculiar amount of ammonium nitrate Mike Havens purchased: If there was an innocent explanation for why Timothy McVeigh needed enough fertilizer for a golf course, no one ever heard it. Plus, besides covering his tracks, there’s no reason why “Havens” would not want to save some money on taxes. The same goes for the number of storage sheds: If ever there was an innocent explanation for why McVeigh needed multiple storage sheds in the first place, or why he used multiple aliases to rent them, no one ever heard it. Another set of circumstances showing a criminal design is the sale of the racing fuel: nobody buys that much fuel to race Harley’s. Their engines can’t take that much heat. He altered his appearance to further obfuscate his identity by dressing up as a biker, and encouraged his accomplice to do the same. Finally, the purchase of the Ryder truck itself was full of criminal peculiarities: McVeigh declined insurance, used an address in South Dakota that doesn’t exist, lied about his destination (the Truck never made it to Omaha), and used a date of birth matching the anniversaries of Waco, Lexington, and in a few days, Oklahoma City.
Of course, none of this mattered if McVeigh never had the opportunity to commit the crime: “If the time and place has been fixed to a particular hour and minute, and if the accused can show that at that same particular time he was elsewhere, the conclusion is unavoidable and necessary that he could not possibly have committed the crime.” In proving that McVeigh had the opportunity to commit the crime, prosecutors in this case were faced with a significant problem: no one saw him in a Ryder truck on 5th street on the morning of the bombing. No one testified they saw him in Oklahoma City, for that matter. This is a common problem in bombing and poisoning cases because the weapon can be dispatched by a suspect from afar, accomplished remotely in both time and space. But being tasked with proving the unseen is a common feature in most murder cases. After all, murders are usually committed in secret. While no one identified McVeigh at Murrah, McVeigh’s arrest by Charles Hanger gave jurors proof that he was near the scene of the crime in time and space. The proof became undeniable that he was at the scene once the chemical remnants consistent with the bomb making materials were proven to be on his t-shirt, his undershirt, his jeans pocket, and his lime green earplugs.
All of this was sufficient in the eyes of the jury to answer those three questions Yes. Jurors returned their verdicts of guilty on June 2nd, 1997. The penalty phase of this death penalty trial began two days later. 42 witnesses testified for the prosecution; 28 for the Defense. On Friday the 13th of June, 1997, the same jurors sentenced McVeigh to death. Almost to the day 4 years later, he was executed in Terre Haute, Indiana. His codefendant, Terry Nichols, was subsequently tried and convicted, but was spared the death penalty. Michael Fortier is now a free man in the witness protection program. Lori Fortier and Jennifer McVeigh were immune from prosecution.
The identity of John Doe Number 2, the olive complected man in the Ryder truck, and the person to whom P71 belongs all remain a mystery. Why McVeigh didn’t put a license plate on his getaway car, why he used his real name to rent Room 25, or why he used the address of his accomplice, Terry Nichols, remains one, too. Had he done differently, or had Trooper Hanger not crossed his path 77.9 miles north of Murrah, the identity of the Oklahoma City Bomber might have remained as the biggest mystery of all.
I would like to thank Nolan Clay from The Oklahoman Newspaper for helping me access an authentic copy of the trial transcript. This entire essay is based on the testimony as the jury heard it, with two exceptions. I felt compelled to provide a little bit more background information on the tragedies at Ruby Ridge and Waco than was adduced at trial. Most of all, I would like to take this opportunity to express my gratitude to Larry Mackey, Stephen Jones, Christopher Tritico and “American Terrorist” Author and McVeigh biographer, Lou Michel for sharing their unique insights. I have interspersed clips from their interviews throughout the show. I will release their interviews in their entirety beginning next episode with Stephen Jones, followed by Larry Mackey, Christopher Tritico, and finally, Lou Michel.
–End of Episode 6–