THE COURT: Ladies and gentlemen, good morning.
We are ready to proceed with the closing arguments of
counsel in this case. Because the Government has the burden of
proof in the case, you will hear first from counsel for the
Government. And counsel for the defendant will have an
opportunity to argue, then counsel for the Government have an
opportunity for a rebuttal argument. Following the arguments,
I will instruct you on the law.
We will take our usual recess except we'll limit the
noon recess to an hour today. We want to give a full and fair
opportunity to both sides to present their arguments in the
case, and we'll also ask counsel to help us with timing the
recesses so that we don't interrupt at a time that may be
inconvenient for the lawyer making the argument.
Also under the procedure here, the lawyers for both
sides have an opportunity to change off; that is, not one
counsel's responsible for the entire argument. They can split
it up. So we're ready to proceed.
Mr. Mackey, you're going to present the Government's
case.
MR. MACKEY: I am, your Honor.
May it please the Court.
THE COURT: Yes.
CLOSING ARGUMENT
MR. MACKEY: Mr. Jones, Counsel, Mr. Hartzler, my
colleagues, ladies and gentlemen of the jury, good morning.
The events that were set in motion two years ago are
drawing to a close. On April 19, 1995, a crime of ghastly
proportions was committed. On that day a truck packed with
explosives parked in downtown Oklahoma City filled with
explosives. Only a wall of windows separated the unsuspecting
children and women and men inside that building from the truck
and the explosives that set outside. The truck bomb exploded,
the building gave way, and suddenly many lives were ended and
many, many more were changed forever.
America stood in shock. Who could do such a thing?
Who could do such a thing? It's a question that began to
ripple across this country coast to coast. And finally it's
come to rest right here in this courtroom. It's fallen to you
as members of this jury to answer that question.
Based on the evidence, based on what you've heard, the
answer is clear. Tim McVeigh did it. Tim McVeigh and Terry
Nichols in concert with each other planned and executed the
violent attack on the Murrah Building and are responsible for
the murders of those persons who died.
I have, as his Honor told you, some time this morning;
and I want to use that time to visit with you, summarize, to
discuss a month's worth of evidence. It may take me the
morning, and I appreciate the patience that you've shown to all
of us throughout these proceedings; and I know I can trust that
patience yet again this morning, but it's important that all of
us discuss and think about and reflect upon what we've heard in
this courtroom for the last month.
It's my opportunity to review some of the evidence, to
suggest to you fair inference that, we submit, have been
supported. It's my chance and I will to review the charges,
what is at stake, what are the criminal charges against Tim
McVeigh, what must the Government prove to you beyond a
reasonable doubt before we can prevail and you can convict. I
want to do that; but when I do that and when I'm done, you will
have concluded that the evidence does in fact sustain the
charges against Tim McVeigh.
When Mr. Hartzler first spoke to you in the opening
and told you what the Government intended to do, to fairly
present the evidence against Mr. McVeigh, he told you that the
evidence would make your job easier, that it would amount to
overwhelming evidence of guilt, that it would build brick by
brick, witness by witness, a wall, a wall that added up to the
guilt of Tim McVeigh. After a month of trial and hammered away
at by a very experienced, very skilled team of defense lawyers
and experts, that wall still stands, stands tall and strong,
and it adds up to the guilt of Tim McVeigh.
When you retire to the jury room, evaluate what
promises were made by Joe Hartzler against the evidence and see
if we haven't kept our word. We promised and we've proven, in
more ways than one, a number of important factual propositions.
No. 1, Timothy McVeigh, motivated by hatred of the
Government, in a rage over the events at Waco, deliberately and
with premeditation planned the bombing of the Murrah Building;
No. 2, that he educated himself on how to build bombs;
No. 3, that he enlisted at least one coconspirator and
attempted to recruit yet another, Michael Fortier, to help him
in that criminal act and that he and Terry Nichols acquired and
attempted to acquire all of the necessary components to build a
massive bomb; that Timothy McVeigh carefully, very deliberately
selected his target, the Murrah Building, he surveyed it, and
that in April of 1995, he rented the truck, built the bomb, and
detonated it against the Murrah Building. That's the
Government's case. Promises made, promises kept.
Contrast those promises and the evidence that supports
them against the defense's promises to you made in opening.
Mr. Jones addressed you in opening and outlined to you what he
expected the evidence would show. And his Honor has told you
and you all know that no defendant need offer any witness, need
offer any proof; but when they do, when they make promises and
when they present evidence, you are entitled to examine that
evidence in the same degree of scrutiny that we expect and
demand that you examine our proof. And when you do so, his
promises were not kept.
Mr. Jones stood before you in closing -- in opening, I
should say, and said not only would the evidence create a
reasonable doubt that you could not in fact conclude beyond a
reasonable doubt that Tim McVeigh committed these crimes, he
promised something much, much more: He promised that the
evidence in this courtroom would prove Tim McVeigh innocent.
It was a bold promise. He has failed to keep it. The evidence
does not support it.
This is a murder case. This is a murder case. And as
all murder cases, we must introduce you to the victims, and we
did so in this case, through the testimony of fewer than 30
witnesses out of 130 that the United States of America called.
You got to know them a little bit, just a little bit, through
their photograph, photograph taken before their death, and a
snapshot, perhaps, of people, co-workers, friends, who had
worked with those individuals before they died, many times
seeing those people on the day they died.
We took you first to the bomb scene, through sight and
sound, through Lou Klaver. You remember her. She was the
first witness, the lawyer for the Water Resources Board across
the street from the Murrah Building. She just so happened to
be conducting a hearing that morning and was tape-recording it,
and that tape recording captured the incredible sound of the
blast, the silence that fell just momentarily, and then the
screams of people who began to realize exactly what had
happened. No one at the Water Resources Building worked for
the federal government, no one. Lou Klaver didn't. This
bomber did not care.
Who could forget the testimony of Helena Garrett?
Helena Garrett did not work for the ATF, she did not work for
the federal government. Her young son, Tevin, barely had lived
as long as Tim McVeigh's conspiracy existed. He died. This
bomber didn't care.
The only thing he cared about was bringing down the
Murrah Building on top of its occupants. Let me show a
photograph that Miss Klaver identified, Government Exhibit 944.
You'll recall she's the person centered right in the middle of
that photograph, and it captured as best as we could what it
looked like to these witnesses moments after the blast.
And numerous witnesses described how the sky went
black with smoke and debris, and you heard Mike Shannon, the
fire chief, who said there was so much smoke in the air that
they had no idea which building had been bombed, so much rubble
in the streets it was impossible to tell where the sidewalk
began and the street ended and vice versa.
Let me show you Exhibit 1003. This is the scene that
a number of the witnesses who testified before you personally
experienced, the people like Susan Hunt, the office manager
from HUD, who testified that on the morning of the blast, even
though her office was on the 8th floor and even though it was
on the opposite side of the building, she was thrown against
the wall. In the course of her testimony, she stood before
you, and with real dignity, name after name announced the 35
fellow employees at HUD who fell to their death that day.
This is the same scene that Florence Rogers
experienced. Remember her? She was the lady in the credit
union. Same scene she lived through that morning as she
watched, literally watched seven of her co-employees disappear,
literally disappear from a space no wider than her desk. When
the smoke cleared, what the people saw was much, much worse
than the fires and the smoke. The building's nine floors had
pancaked into the space of three.
The images that you saw in this courtroom were the
very same ones that America saw in April of 1995, the same
America that is hoping against hope that somehow, some way,
there would be survivors in that rubble. And in fact, you
learned in this trial there were a few, though very, very few,
who, though were trapped inside the collapsed portion of that
building, survived. People like Prescilla Salyers, and you
recall her, she testified, she told her story. She told you
how she started the morning of April 19 on the 6th floor at her
duty station and ended up below the rubble. She described how
with her one free hand she would use it to move debris so she
could continue to breathe. The same hand she held out, was
gripped by a rescue worker who at some point in the rescue
operations had to let go as a bomb scare forced rescuers to
evacuate the building.
There were some few people alive inside the rubble.
Some very, very few. And unfortunately the stark reality is
the one that Donna Weaver described. Donna Weaver you recall
is the woman who worked some distance from the Murrah Building.
Her husband, Michael Weaver, was a lawyer. She described being
shot from her chair, running down the street, following the
sounds and the smoke and the sirens and the people. She came
around the corner; and what she saw was what you saw, a
building that was gone. And in her words, she said, I saw
Mike's office, it was gone, and I knew he was, too.
Rescuers worked on, anyway. They worked inside the
broken building and did all that they could. And from every
corner of America, people responded. Rescuers from across this
country descended on Oklahoma City. Literally hundreds and
hundreds of law enforcement officers -- you met many of them --
got in their cars, caught planes, and headed to downtown
Oklahoma City. America was in shock. People needed help.
Hundreds and hundreds of people going into Oklahoma
City; one man, this man, headed in the opposite direction, out
of town.
Tim McVeigh that morning had parked the bomb -- parked
the bomb truck in front of the Murrah Building, immediately
below the cribs and the toys that one could see from outside
that building, took off across the street, headed down the
alley bordered by the YMCA, ditched the key from the truck, and
made his way to the getaway car, that ratty-looking Mercury
with a nevertheless reliable engine that had got him to
Oklahoma City. He pitched the "Do Not Tow" sign that he'd set
up on the dash in the seat and took off out of town, headed out
of Oklahoma City.
He wasn't too worried about being connected somehow to
this car. He had previously removed the Arizona license plate
from that car, an Arizona car license plate, as the evidence
proved, if people searched would come back to the name of Tim
McVeigh. And he reasonably assumed what the reality was: On
the morning of that bombing, law enforcement were headed to a
much, much bigger crime, they were headed downtown Oklahoma
City. He was headed in the opposite direction. He could
reasonably assume that no police officer is going to notice or,
if they do, bother to pull him over for a license violation.
And ironically, as the proof has established, one man
he passed as he headed north was headed south, was Officer
Charlie Hanger, long-time member of the Oklahoma Highway
Patrol. And as you recall from Trooper Hanger's testimony on
that morning, like virtually all law enforcement officers
across the state, he was dispatched down to Oklahoma City, and
that's where he was headed. And shortly thereafter, he got new
orders that said, no, stay put, stay in Noble County. So he
turned around and started heading north; and before too long,
he passed Tim McVeigh's car with the missing license plate.
And Tim McVeigh had been very careful not to flee the scene
without being obvious about it. He didn't speed, wasn't
speeding at all.
And as Trooper Hanger told you later, he did a little
test drive. If you start at the Murrah Building at 9:02 in the
morning and you drive within the speed limit and you travel 75
minutes, you're going to be 78 miles away from downtown
Oklahoma City at the precise point where he arrested, pulled
over Tim McVeigh.
You learned another answer to a question that bothered
America in April of 1995. The situation was different for Tim
McVeigh when Officer Hanger pulled him over. It's much
different than the scene he had left moments ago, minutes ago
in downtown Oklahoma City. Now, he was face to face with a
police officer, someone who would be carrying a weapon, someone
who would be trained to use that weapon, someone who might be
especially alert to the dangers of roadside stops, and someone
who had likely radioed in his location as he pulled Tim McVeigh
over, and someone for all Tim McVeigh knew had correctly
activated the video camera setting on his dash looking right at
Tim McVeigh and his car.
You know, it's one thing to leave an innocent-looking
truck parked outside a public building; it's another thing to
draw down on a veteran Oklahoma trooper. Tim McVeigh tried to
play it cool. Tried to be polite and courteous, hoped that he
would get by. Charlie Hanger was not going to drop his guard.
He noticed the bulge under Mr. McVeigh's jacket, asked what
that was; and two events happened almost simultaneously:
Mr. McVeigh volunteered that he was armed, and Trooper Hanger
put his gun to the back of Mr. McVeigh's head. That situation
was under control.
This concealed weapon that Tim McVeigh was carrying on
him with the especially dangerous bullet that was in the
chamber was reason enough under our law to arrest Tim McVeigh
on the morning of April 19, 1995. And so due to the
outstanding work of a single Oklahoma trooper, Tim McVeigh was
in custody on the morning of the bombing in less time than it
takes to drive from Oklahoma City to Herington.
Trooper Hanger had no immediate reason to realize what
he had just accomplished because the truth of the matter is at
that moment in time, no one in America would have thought an
American would bomb its people. People were looking elsewhere.
As Officer Hanger locked up Mr. McVeigh's car setting
there on the roadside, he checked with him about its contents,
and you remember the car had virtually no personal belongings
to Mr. McVeigh in it. He asked him about an envelope that was
situated -- laying there on the front seat of Mr. McVeigh's
car. Tim McVeigh, you want to bring that with you -- Tim
McVeigh, No. And later in time, two days later when the FBI
searched that car and looked inside that car and found
documents with Mr. McVeigh's fingerprints and his handwriting,
we all now knew why Tim McVeigh wanted to put as much distance
between himself and that envelope.
He has tried in the course of this trial to neutralize
the language that's in those documents. They're in evidence.
You read them. You judge them. They are words of a man bent
on violence. They are words of his making, and they speak his
mind. And as you try to examine the mind of Tim McVeigh on
April 19, 1995, start there, and you may find you need go
nowhere else.
Among the contents of that envelope was an excerpt
from Mr. McVeigh's favorite book, The Turner Diaries; and at
the start of the clipping, someone had taken the time to clip
out just this portion of the page 62 of The Turner Diaries. It
begins: "But the real value of our attacks today --" and then
goes on.
At the bottom of Exhibit 454 -- and you saw it into
evidence -- someone -- not just someone, Tim McVeigh, that
someone, wrote at the bottom, "Maybe now there will be
liberty." It's not a coincidence that Mr. McVeigh picked words
in present tense to have with him on the same day as the
bombing.
You learned in the course of this trial the
extraordinary efforts that Tim McVeigh took to plan and to
calculate virtually every feature of this crime. And but for
Charlie Hanger, we might all well agree that later that morning
Tim McVeigh would have anonymously dropped that envelope into
the mail to serve as his press release to the world of what
he'd accomplished and more.
Tim McVeigh picked his clothes for the bombing as
carefully as he picked that which he took with him. You saw
Mr. McVeigh's T-shirts more than once. You remember the
T-shirt of the likeness of Abraham Lincoln. This is the shirt
that Mr. McVeigh was wearing on the day of the bombing. On the
back the expressions, "The tree of liberty must be refreshed
from time to time with the blood of patriots and tyrants," and
droplets of blood fall from the tree; and on the front side,
President Lincoln and the Latin phrase, "Sic semper tyrannous,"
thus always to tyrants.
Now, Mr. Jones told you in the opening statement that
phrase is indeed the state motto for Virginia; and their
colonial legislature, you may recall, liked that expression,
used that expression. But on the front of the T-shirt that Tim
McVeigh was wearing on the day of the bombing, there's no photo
of the state of Virginia; there's a photo of President Lincoln,
President Lincoln, a man who was assassinated, assassinated by
a man who snuck up behind him and put a bullet in the back of
his brain, President Lincoln, a victim who didn't know what hit
him, victims just like inside the Murrah Building. On
April 19, 1995, Tim McVeigh drove his truck bomb to Oklahoma
City and drove away wearing a T-shirt with the words of an
assassin on the front.
Little did anybody know, but at that morning of
April 19, all the roads were headed to Junction City, Kansas.
Trooper Hanger told you that he asked Mr. McVeigh, Where did
you get this car, this car without the plates and for which you
have no bill of sale?
And he said, From Tom Manning up in Junction City,
Kansas.
And he verified that and had a radio check and they
did.
At the same time in downtown Oklahoma City, FBI agents
were working. Just as the rescuers tried to find what they
could inside the building, the police were trying to find the
person who brought that building down. And one of the first
clues was the axle, and you heard about and saw that axle in
the courtroom. The VIN led to Junction City. You learned that
it was a Ryder truck, owned by Ryder of Miami and that it was
on assignment to Elliott's Body Shop in Junction City, Kansas,
and that that truck had last been rented by a man named Bob
Kling, Robert Kling.
So the question to face the police the morning of
April 19, the same one that's facing you: Who is Bob Kling?
The answer is Tim McVeigh.
Now, you have far more information now in May of 1997
than the police did in April of 1995, but it comes,
nonetheless, to the very same conclusion. And you remember
that what the police did, they began to search the area in
Junction City, and they developed a composite, composite based
upon descriptions offered by people who were at Elliott's on
the day Bob Kling, Tim McVeigh, was there to pick up that
truck. You've seen the composite. And you heard the artist
who drew it, who testified in this case, say, I think the
composite bears very striking similarities to Tim McVeigh.
Well, the composite's in evidence. Mr. McVeigh's photo is in
evidence. I'm showing it to you now. You decide. You decide
whether those witnesses at Elliott's had it right, that the man
they had seen representing himself to be Bob Kling was in fact
this defendant, Tim McVeigh.
All of this was coming together in April of 1995. You
recall Trooper Hanger said just a few days later, as he did
routinely search his squad car, he noticed in the back seat the
business card that had been crumpled up, right behind where Tim
McVeigh had been seated. Nobody else had been in that seat
since. And on the back of that business card someone -- not
just someone, we now know -- the evidence has shown this
someone, Tim McVeigh, had written the words "TNT, call after
May 1, if I can get some more." The evidence in April of 1995
was already mounting up against Tim McVeigh.
And a few months later, a grand jury in Oklahoma City
returned an indictment against Tim McVeigh and Terry Nichols.
And this case, this case, has only to do with Tim McVeigh; and
our job throughout this trial has been to establish to your
satisfaction beyond a reasonable doubt that Tim McVeigh is
guilty of those charges.
Let me take just a few minutes now and outline exactly
what those criminal charges are. There are 11 counts in the
indictment. They fall into four separate federal statutes,
four different criminal violations.
In our business, we talk a lot about essential
elements, and essential elements for your business become your
checklist. They're questions of fact that each of you and
collectively you must decide beyond a reasonable doubt the
Government's proven. So let me go through your checklist for
you on the crimes that have been alleged against this
defendant, Tim McVeigh.
In Count One: Count One charges conspiracy, that Tim
McVeigh and Terry Nichols and others unknown beginning in
September of 1994 and until April 19, 1995, the date of the
bombing, conspired to use a weapon of mass destruction, a truck
bomb, against persons in this country and against property
owned by the United States. There are three essential elements
to that first count, to the conspiracy.
No. 1, that two or more persons agreed -- "agreed,"
that's the key word -- to use an explosive bomb in a truck as a
weapon of mass destruction against a federal building and the
persons inside.
No. 2, that the defendant, Timothy James McVeigh,
knowingly, voluntarily, became a member of the conspiracy with
the intent to advance or further its objectives.
And the third essential element of the count in Count
One is that the achievement of the objectives of the conspiracy
would have substantially affected interstate commerce; that is,
there's a federal interest in this particular case.
Those are the essential elements of Count One, and you
couldn't convict Tim McVeigh of Count One until and unless
you're convinced beyond a reasonable doubt that we've proven
each and every one of those. The answer to that question is
that we have.
Let me show the essential elements of Count Two which
charges a different crime, and that's the use of a weapon of
mass destruction against persons. It's almost a subset, if you
will, of Count One. There are four essential elements to Count
Two:
No. 1, that the defendant, Timothy James McVeigh, used
or aided and abetted the use of a weapon of mass destruction.
Second element is that the weapon of mass destruction
was used against persons within the United States.
Third element: That the use of the weapon of mass
destruction against persons within the United States had a
substantial effect upon interstate commerce.
And three -- excuse me, four: That the defendant
acted knowingly, intentionally, willfully, and maliciously.
Those are the four essential elements of Count Two.
Count Three is the other subset of that conspiracy
charge and that is the attack or use of a weapon against the
property of the United States of America. Let me show the
essential elements of Count Three.
No. 1: That the defendant damaged or destroyed a
building or aided and abetted the damage and destruction of a
building by means of an explosive bomb.
The second element is that the defendant acted
knowingly, intentionally, willfully, maliciously.
And three: That the building in whole or in part was
owned, possessed or used by or leased to the United States.
Those are the first three counts of the indictment.
His Honor, I expect, will tell you that if you convict Tim
McVeigh on any or all of Counts One, Two, or Three, two more
questions face you. One is whether those crimes resulted in
the death of anyone listed in the indictment -- and you'll see
those names; and secondly, whether those deaths were a
foreseeable result of those crimes. And if you conclude that
Tim McVeigh parked a truck bomb in front of the Murrah
Building, the answers to those questions, I think, are obvious.
The fourth statute in the indictment, and those that
are alleged to have been violated in Counts Four through
Eleven, are first-degree murder counts. Under the federal
statute, first-degree murder is committed -- and I will walk
through the elements for you now -- if you find that the
Defendant without lawful justification killed or aided and
abetted the killing of another human being;
Second, that the victim was a federal employee with
law enforcement functions who was killed while engaged in the
performance of official duties;
Three, that the Defendant committed or aided and
abetted the killing with malice aforethought;
And fourth, that the Defendant committed or aided and
abetted in the killing in a premeditated and deliberate manner.
I expect his Honor will tell you malice aforethought
is a state of mind that you must find; and in making that
finding, you can decide whether the Defendant acted in a
callous and wanton disregard for human life.
And I expect that he will tell you that premeditation
means what you might expect it means: Someone formed a
specific intent to kill another human being.
Keep these elements in mind as you listen to the
evidence we discuss this morning and through the course of this
day and, of course, during your deliberations, and use that
checklist and see if the Government has not, in fact, proven
beyond a reasonable doubt each of those essential elements as
to each of those 11 counts.
Let me return now to the evidence. Tim McVeigh is a
domestic terrorist. But he didn't start that way. The bombing
that took place on April 19 in downtown Oklahoma City didn't
happen overnight. Those are events that converged after an
evolution of events and really was the culmination of all the
planning and all the deliberate steps taken by this defendant
to culminate in the bombing in April of 1995.
And you learned from words written by Tim McVeigh
exactly when he stepped over the line, when he formed that
specific intent, and when that evolution to terrorism had
finished its course.
You will remember hearing testimony from Kevin
Nicholas, who is the man who has a farm or worked on a farm in
Michigan. He's a factory worker now and for years knew Tim
McVeigh and Terry Nichols up in Michigan, and he came in here
and he testified. One of the things he told you about was a
letter that he saw in 1995 after the bombing, a letter from an
aunt of his wife's; and he introduced that into evidence, a
letter written by Tim McVeigh. And in the letter -- maybe some
of you caught it, maybe some of you didn't; but it talks
about -- dated February 10, 1995. Mr. McVeigh says, Six months
ago, one-half year ago, that's when I left the legacy of
passing literature behind and stepped forward to animal, moved
from intellectual to animal. You remember the phrases about
ripping people's heads off. In that same letter, he says,
One-half year ago, that's when I made the commitment.
Count them up, moving back in time from February of
1995. And where do we land on the calendar? September, 1994.
September, 1994, a date in time referred to numerously by
numerous witnesses as events taking place relevant to this
case.
He told people of his intent to kill long before he
killed. The event that may have triggered Tim McVeigh to do
the bombing is not clear. But one thing that is clear, if you
think about this time line, is that Tim McVeigh had six solid
months to abandon that intent, six solid months to think about
it, think about it again, and walk away. And instead, he drove
to Oklahoma City with the truck bomb.
Make no mistake about it: In America, everybody has a
right to their beliefs, have a right to think and say what they
do. This is not a prosecution of Tim McVeigh for his political
beliefs. This is a prosecution of Tim McVeigh because of what
he did: He committed murder. This is a murder case.
His Honor will tell you, I expect, that evidence about
someone's state of mind, their political beliefs, those
statements about political tendencies, while they are protected
under the First Amendment, nonetheless in criminal court can be
relevant evidence for you to consider. They can help you
decide the question: What would motivate someone to do a crime
of this dimension? You can consider and you should consider
what Tim McVeigh was saying to himself and to others in
writings and conversations about his hatred for the federal
government and how he would give voice to that hatred in his
actions.
Mr. Jones told you in opening statement that the
politics of Tim McVeigh were mainstream. Mainstream. You
judge for yourself. I submit that the evidence supports the
conclusion forecast by Joe Hartzler, and that is those beliefs
were nothing other than Tim McVeigh's intent to impose his will
upon the people of this country through premeditated violence
and terror.
What Tim McVeigh was saying and talking about to other
people are, of course, his thoughts and beliefs, but he
certainly got reinforcement about those views from one book.
The centerpiece of Tim McVeigh's belief system seems to be one
book entitled Turner Diaries. You've heard a lot of testimony
about it in this trial. It's in evidence. Take time to
examine that book. It was a book that Tim McVeigh promoted and
carried with him for seven years; a book of fiction, a book of
fiction; but Tim McVeigh believed in it; a book that he sent to
his young cousin, Kyle Kraus, who testified, while Kyle was in
high school; a book that he sent to his sister Jennifer, she
testified, while she was in high school; a book that he sent to
virtually everybody he knew; a book which later he would bring
with him to his gun shows, put on the table, and offer for
sale; a book that back in 1988, when he had first encountered
Michael Fortier, he encouraged him to read; and a book just a
few weeks before the bombing, Michael Fortier was again
encouraged by Tim McVeigh: "Read The Turner Diaries."
Tim McVeigh was fixated on The Turner Diaries; and
everywhere he went, David Darlak, other people, The Turner
Diaries and Tim McVeigh seemed to go in the same sentence. It
may have been a novel, but it was a book that Tim McVeigh
believed in.
What's this book all about? It's about revolution,
here in America. But it's not a revolution against the
British. It's not set in 1776. It's about revolution in this
country, in this century of our lives. And it describes how
these revolutionaries can incite a civil war in this country
through careful, selected acts of terrorism. That's the theme.
And one of the acts of terror in The Turner Diaries is the
truck bombing of the FBI building, downtown Ok -- Washington,
D.C., that in many respects -- and you make that examination --
is identical to the bombing that Tim McVeigh carried out in the
course of '94, '95.
The Turner Diaries is not merely an outlet for people
who hate the federal government; and there are those, and those
beliefs again are protected. It is not merely that. It is
foremost a book about using terror for revolutionary purposes,
the hope that it will incite others to revolt.
And so coming from a man who had come to personify The
Turner Diaries, Tim McVeigh knew exactly what he was talking
about when he told Jennifer McVeigh shortly before the bombing,
"Something big is going to happen in the month of the bull.
Something big is going to happen." The something big wasn't
the bombing; it was the revolution in this country that Tim
McVeigh predicted would follow. And so Mr. Nigh and Jennifer
McVeigh did set us straight: The month of the bull does not
begin, doesn't fall on April 19. It begins the next day,
April 20; and just like The Turner Diaries, just like Tim
McVeigh believed, you conduct terror, and the country will
follow; you conduct terror, and civil war will result. He was
looking for the events after April 19: April 20, and when the
month of the bull began.
Tim McVeigh was wrong about America. He was wrong
about America's response to the bombing of the Murrah Building.
The only blood that flowed in the streets was the blood that
Tim McVeigh shed of the victims inside that building.
The destruction of the FBI building in The Turner
Diaries is fiction, absolutely fiction. The destruction of the
Murrah Building in downtown Oklahoma City is real, horribly
real, and the result of the acts of Tim McVeigh. The defense
may offer other interpretations of The Turner Diaries. And
like all literature, not good literature, but like all
literature, you can interpret different things from the
writings of others. But there's one sad interpretation: The
bombing of the Murrah Building is the direct result of two men
who hated this Government so much that they could do nothing
else.
Whatever the origin was for this hatred inside Tim
McVeigh -- whatever it was, all the justification that Tim
McVeigh seemed to look to, though poorly reasoned, were the
events in Waco, Texas. Even before the Waco fire, Tim McVeigh
was filled with hatred for his government; but no doubt it was
Waco that convinced this defendant that violence against the
Government was inevitable and that some offensive action was
justified. Tim McVeigh told his friends: At Waco, the
Government drew first blood; that it was the Government's
declaration of war against the people.
In human terms, there is no debate about Waco, no
debate at all. The fire and the loss of life at Waco was a
horrible, horrible human tragedy. But Tim McVeigh's feelings
were much different. They were on a different level. And you
recall the testimony of Greg Pfaff, his friend from the
gun-show circuit who said, After the Waco episode, we heard
lots of criticism from lots of people about Waco; but nobody,
nobody, was as livid about it as Tim McVeigh. And so over the
years -- or the less than a year that followed thereafter, you
could hear -- and you heard it through the testimony in this
courtroom -- the rage in Tim McVeigh accelerated, crescendoed
to the point that finally in the fall of 1994, he made his
declaration of war against this country. He announced, I have
decided with my friend Terry Nichols to take offensive action
against our Government.
And so he wrote a letter to Michael Fortier, his
friend in Kingman, Arizona, telling him just that. He warned
Michael: Don't share this letter with your wife. Michael did
anyway, and the two Fortiers talked about it.
And later when Michael Fortier asked him, Well, what
exactly do you have in mind when you talk about taking
offensive action against the Government, he said: I mean to
bomb a federal building.
In mid September, 1994, shortly after this letter, Tim
McVeigh comes to Kingman. And it's clear why he's traveling to
Kingman. He wants to appeal directly to Michael Fortier: Join
this conspiracy. So he asked Mr. Fortier, Do so, will you do
so; and Michael Fortier says, No.
And finally, Mr. McVeigh says, What will it take?
What will it take for you to join the war against your
Government?
And he says, A United Nations tank sitting in my front
yard. Michael Fortier from the beginning and throughout the
course of his relationship with Tim McVeigh recognized the
difference between political rhetoric and murder.
Rejected by Michael Fortier in September of 1994, Tim
McVeigh headed back, headed back to Kansas, back to someone who
did agree with him, back to Terry Nichols. And in the fall of
1994, as you heard, they began using all their energy, all of
their limited funds, all their efforts to acquire ingredients
that would one day, if put together, would bring down a
nine-story office building.
We talked a little about the motive, what might
motivate any man, this man, to do such a horrible crime. And
obviously, the other question is did he have the means; did he
have the means to commit murder, the motive to commit murder,
means to commit murder? And the answer to that question is the
same as before: Absolutely. And the proof has been
overwhelming.
First of all, the question is did the evidence prove
that Tim McVeigh knew how to build a bomb. You have to have
bomb-making knowledge and the ingredients to combine them in a
way that could leave the results that we saw. And in the
course of this trial, maybe it struck you as it did me, how
depressingly easy it is.
There are two witnesses from two very different
places, Paul Rydlund, a man who appeared early in the case,
from Eldorado Chemical Company, and Linda Jones, a petite
little woman from the British National Forensic Laboratory, who
said, in effect, the same thing; it's easy. It's easy to build
your own improvised explosive device. All you need are
ingredients to make a main charge and then something to set
that main charge off. And both of them agreed that if you've
got ammonium nitrate, nitromethane, Tovex sausages, Primadet
blasting caps, TNT, and det cord, that's all you need; you can
make a bomb.
Well, how do you know that Tim McVeigh knew what to do
with those ingredients? In this free society, any of us can
write away for a book on how to build a bomb. And you heard
from Dana Rogers, the account representative from Paladin Press
located here outside of Denver, and the catalog that he put
into evidence that listed those kinds of things that you can
buy. And he told you that according to their records, twice,
in 1992 and then in May of 1993, after the Waco bombing --
excuse me -- after the Waco fire, Tim McVeigh ordered twice
from their company, both times how to build bombs. In
May 1993, he ordered the book, Homemade C-4.
In cross-examination, Mr. Nigh pointed out -- and he's
right about this -- there are lots of different books that are
offered by Paladin Press, books on everything from bounty
hunting to guns. But that's exactly the point. The only
orders that Tim McVeigh ever placed with Paladin Press were for
bombs, how to build bombs. The bomb book that he bought in May
of 1993, after the Waco fire, Homemade C-4, is not a long book.
It's in evidence. It's about 50 pages long, lot of pictures on
how to do it. But you'll see and hear lots of terms that you
heard in this courtroom, terms like ammonium nitrate,
nitromethane, anhydrous hydrazine, and TNT.
This book teaches not only what you need in the way of
ingredients but where to go get it. Tim McVeigh made good use
of this particular book. The last page of this book, the
author writes: "The explosive made by mixing ammonium nitrate
with nitromethane seems to possess all the desirable
characteristics of high-grade military explosives." The author
goes on to say that if you change the formula, if you used
anhydrous hydrazine with that ammonium nitrate, you're going to
have, as he described, the most powerful chemical explosive
known to man, short of an actual atomic reaction. Those are
the words in this book, the book read by Tim McVeigh. So
obviously, anyone who set out on a course to buy anhydrous
hydrazine, having read this book, knew the terrible things that
could happen.
And so the proof in this case did demonstrate that in
the course, really, of less than about 30 days' time in the
fall of 1994, Tim McVeigh and his coconspirator, Terry Nichols,
acquired everything they would need to build a bomb that could
do what eventually it did.
Let me take a moment and talk a little bit about the
deliberative process. We'll talk a little bit about one rule
you may not find in the Judge's instructions to you. The first
rule, of course, as he will tell you, is that the critical
question is whether we have convinced you beyond a reasonable
doubt of the charges that face this defendant. It does not
mean that all of you have to agree about the evidence. You
have to agree about what that evidence means. And so each of
you will take, perhaps, in different degrees of sufficiency the
evidence of one witness or another, a document; and what it
means may strike one of you very differently than somebody
else. You don't have to agree on how you reason. You don't
have to agree on the weight you want to give a particular
document or particular witness. All that you have to agree on
collectively is that the Government has met its burden and
proved beyond a reasonable doubt the charges against this
defendant.
And in this case, there is some likelihood that you
may react differently, each of you, to the evidence in this
case, partly because there is so much different evidence.
There's eyewitness accounts, there's documentary proof,
fingerprints, chemical analysis, physical evidence from the
Nichols house, physical evidence from McVeigh's car, physical
evidence from his arrest, from the Murrah Building, testimony
from family members who received immunity, testimony from
friends who received immunity, testimony from experts, lay
handwriting opinions, summary testimony on phone records,
testimony from a person with a plea agreement, stipulations,
models, diagrams, photographs, all to illustrate that
testimony.
In this case, the Government has presented both direct
and circumstantial evidence; and I expect his Honor will tell
you the law draws no distinction between the two. And so you
can be as persuaded by circumstantial evidence as the next
juror might be by direct evidence. It's entirely up to you to
give whatever weight you think the evidence is entitled to.
The evidence in this case draws a parallel, to my
mind. I think it can be compared to meals that are served
across this country on family get-togethers, large meals, often
prepared by very proud mothers who intend to serve up something
for everybody, who know that not everybody's going to like the
sweet potatoes in the same way. They know that everybody's not
going to like every one of the desserts served. But their
objective is when that meal is done, each and every person can
push away from that table entirely satisfied and maybe even
stuffed.
Well, the evidence in this case that the Government's
presented is a smorgasbord of evidence, and you are entitled to
pick and choose; and our prediction is once you do that, you
can push away from that evidence entirely satisfied that we
have proven beyond a reasonable doubt the charges against this
defendant.
Let's go back to the evidence. The main ingredient as
you learned, ammonium nitrate, in volume terms clearly the
biggest component necessary to build a bomb. What's the proof
that Terry Nichols and Tim McVeigh bought 4,000 pounds of
ammonium nitrate in September and October of 1994? Evidence
starts right here, starts back at the Homemade C-4. On page 6
of this book, the author says: "Although fertilizer-grade
ammonium nitrate can usually be purchased from nurseries and
garden supply stores, a better source for explosives
manufacture is farm supply stores": What you need, where to go
get it.
And in the fall of 1994, just down the road, maybe 45
minutes away from where Terry Nichols lived, in Marion, Kansas,
was the McPherson Co-op, Mid-Kansas Co-Op, located in
McPherson, Kansas. And we have proven, as the evidence
supports, on two different days, really separated by about
three weeks' time, that farm supply store sold 4,000 pounds of
ammonium nitrate -- you saw the bag, says "explosives" on the
front of it -- to a customer named Mike Havens.
Now, the sales in and of themselves are suspicious,
and you heard why: Two good reasons. First, this purchaser
paid with currency, paid with cash. And as you remember from
Mr. Nattier, that doesn't happen very often. But second, this
purchaser also paid the tax. Mr. Nattier told you that you
want to come into a farm supply store and buy ammonium nitrate,
using it, or intending to use it, for agricultural purposes,
farming, the law says you don't have to pay the tax; but you do
have to fill out a form. You have to fill out a form, you have
to sign that form. And that form: You know where it goes. It
stays right there at Mid-Kansas. So Mike Havens decided, I'm
going to pay cash, and I'll go ahead and pay the tax, because
the choice was otherwise: I'd have to leave evidence, my
signature, sitting in the files of Mid-Kansas. Suspicious,
only suspicious, but they shouldn't be ignored.
Remember that if you took the time like Agent Lou
Michalko did to go through all of the hundreds of ammonium
nitrate transactions at McPherson's and all of its stores in
central Kansas engaged in, what you find is Mike Havens at the
top, the largest sale by cash and paying tax.
There's more. First sale took place on September 30,
1994. It's a Friday. It's a Friday, the same Friday that Tim
Donahue told you during his testimony -- and you remember him,
the man who has a ranch in central Kansas, started small, about
a half section and today has more than 15,000 acres. Tim
Donahue said, I employed Terry Nichols as a ranch hand for six
months, beginning in March of 1994, ending, you recall, Friday,
September 30, 1994.
Mr. Donahue doesn't strike people as somebody hard to
get along with; and maybe Terry Nichols knew that when he said
that morning, Not only is this my last day, but I want to leave
early today, Friday, September 30. And that's what he did.
Mr. Donahue said Terry Nichols left midday, thereabouts. He
didn't see him again that day until about 7 p.m. And 7 p.m.
you remember the circumstances that took him to Terry Nichols'
ranch house. He drove up there to look at a waterbed and to
give him his last paycheck. He saw Terry Nichols there, but he
also saw a second man, a man who he identified from this
witness stand as this man, Tim McVeigh. Terry Nichols, Tim
McVeigh together on Friday, September 30, 1994. Last seen him
midday, saw him again with Mr. McVeigh at the end of the day,
enough time for two men to drive to McPherson 45 minutes away,
buy 2,000 pounds of ammonium nitrate in a false name, take it
off to a storage shed and get back to the Nichols house.
If you're not confident from Mr. Donahue's testimony,
alone remember Marife Nichols who said: I lived there, lived
there with my husband. In mid September I left to go back to
the Philippines; and when I left, Tim McVeigh was there. Tim
McVeigh, a long-time friend of Terry Nichols, was there at the
house in Marion, Kansas.
Special Agent -- excuse me -- I guess Fingerprint
Specialist Lou Hupp testified more than anyone perhaps, in
terms of appearances in this courtroom, but you learned one
thing from his testimony and that is he can't tell you when a
fingerprint is placed on a document. It's not something that
he can tell you, but he can tell you positively -- and he did
in this case -- that I found Tim McVeigh's fingerprint on the
receipt for September 30 -- Friday, September 30, for the Mike
Havens' first purchase of 2,000 pounds of ammonium nitrate.
Tim McVeigh's fingerprints on the receipt that has the name
Mike Havens.
That's not all. Where was the receipt found? Where
was it found? You have to go to the testimony of Joanne Thomas
who is a financial analyst from Omaha, woman who came down here
to testify that in April of 1995, she and others from Omaha
came down to Mr. Nichols' house in Herington, Kansas, and did a
search. She was the one who found, tucked back in a drawer in
the kitchen cabinet, a pink receipt of Mike Havens wrapped
around some coins. She introduced it into evidence. Tim
McVeigh's fingerprints on Mike Havens' receipt found in Terry
Nichols' house, circumstances that you can consider, should
consider, in coming to the conclusion Mike Havens is two men:
Tim McVeigh and Terry Nichols, joined in common purpose of
acquiring ingredients necessary to build a bomb.
But there's more. 2,000 pounds was not enough. 1 ton
of ammonium nitrate, already twice what Linda Jones would say
is the kind of bombs that she encounters, wasn't enough. In
October 1994, October 18, just a few weeks later, Mike Havens
goes back to the same store, buys another ton, another
2,000 pounds of ammonium nitrate. And the proof shows that Tim
McVeigh and Terry Nichols were back in central Kansas at the
time of the second purchase at the McPherson store.
On October 16, just two days before the second Havens
purchase, October 16, someone checked into a hotel in Salina
Kansas -- Salina, Kansas, just due north of McPherson, not too
far at all, and that someone used the last name of Havens, and
that someone left a fingerprint that Lou Hupp identified to be
the fingerprint of Terry Nichols, and that someone recorded
their license number on that registration card as Michigan
WX1640. And we put into evidence a picture of a Michigan
license plate found at the Nichols search, the license plate
number: Michigan WX1460. Terry Nichols back in Kansas, mid
October, just north of McPherson, just north of where
Mr. Havens returned to buy yet another ton of ammonium nitrate.
There are lots and lots of aliases in this case. It's
a central theme that seems to run through the evidence,
numerous false names: Mike Havens, Terry Havens, Shawn Rivers,
Daryl Bridges, Tim Tuttle, Joe Kyle, Ted Parker, Robert Kling.
Now, Mr. Jones may tell you, and I won't disagree,
there's nothing against the law in using a different name if
that's all you're doing, but you cannot ignore the question of
whether there's something up, something big is up when you have
so many aliases all surrounding travels and purchases and
headed in one direction, acquiring ingredients for a bomb.
When you use an alias, maybe you can keep creditors
off your trail, but it certainly interferes with efforts by law
enforcement to track down participants, and it certainly
interferes with the evaluation of where you've been and what
you've been doing. And that's the reason why these two men use
so many aliases in such a short period of time. All of that
evidence adds up to the conclusion that Terry Nichols and Tim
McVeigh bought 4,000 pounds of ammonium nitrate.
But there's more. You have Tim McVeigh's statements
made to his friends Lori and Michael Fortier, and each of them
testified that Fort -- excuse me -- that McVeigh confided in
them, We bought ammonium nitrate for our bomb, confided in
them, That's going to be our main ingredient, the ammonium
nitrate.
Lori testified that McVeigh told her that he had
already purchased the ammonium nitrate when she saw him out in
Kingman in late October. That would be after September 30 and
October 18. And around the same time, Michael Fortier said
McVeigh said he and Terry had already bought the ammonium
nitrate. You remember part of the description that Michael
Fortier gave about that story, he said McVeigh complained -- I
don't know if "complained" is the right characterization -- but
he said, Here's Nichols who's got this farming background;
surely he can go into a farm store, pull off the sale in an
unsuspecting way. But no, it didn't happen that way. He
complained about Terry Nichols. Those kind of details give
credit to the testimony of Michael Fortier.
And in that respect, and in many other ways,
throughout this case the testimony of Lori and Michael Fortier
has been corroborated. They offer direct evidence, the kind of
evidence that we talked about earlier when someone says, That's
a person that I know, have known for years, and that person
shared with me his secrets about a criminal act. That's direct
testimony.
And throughout this case, there has been the testimony
of Michael and Lori Fortier ringing through all of our ears as
we listened to the pieces from totally different sources,
totally different witnesses, totally different documents to
come to the same common ground.
And the fact that so much other evidence supports and
links into what Michael and Lori Fortier told you is itself
enough reason to conclude that what they told you was the
truth.
It can't be overstated, however. I mean there were
exceptions. There was some evidence offered through Michael
and Lori Fortier that stands alone. Nobody else -- nobody else
told you about an event that Lori Fortier told you about in her
trailer. Nobody else told you that Tim McVeigh emptied her
kitchen cabinet, took out the soup cans, and using those soup
cans to simulate barrels full of explosive material
demonstrated for her how he intended to configure his bomb.
Nobody else said that, but you can believe it.
And as you test that testimony, think about why Tim
McVeigh was doing what he was doing. He was trying to
demonstrate to this woman what he knew about bomb-building in a
special way. He used the term "shape charge." Anybody in the
military knows about shape charges. Talk about shape charges,
why are shape charges so important? Because, as he said, they
maximize effect. They maximize effect. You can build a bomb,
but then you can build a very good bomb, a very efficient bomb,
a bomb that can take down a nine-story office building that had
only been standing 18 years.
And when you think about Linda Jones's testimony about
efficiency, I mean she said it more in a clinical way; but it's
true, it's what you would expect. Not all improvised devices
are built alike. Some don't detonate with the same degree of
efficiency as others. What she said about the bomb that went
off in downtown Oklahoma City is that it was very large and it
was very efficient. The sign, a signal, some evidence that
whoever configured that bomb, whoever built that bomb, took a
lot of time, educated themselves to the end, made sure that
they got the right ingredients, made sure they configured it in
a way that would produce the results they intended. Somebody
like -- somebody like a man who would sprawl out on a kitchen
floor and use soup cans months and months before the bombing to
say, This is what I'm going to do and this is why I'm going to
do it.
And there's another reason you can believe Mike and
Lori Fortier, and that reason was disclosed in a letter that
Tim McVeigh wrote to his sister. You saw the letter. In the
letter Tim McVeigh says: Jennifer, you can trust Michael and
Lori Fortier. And at the time he wrote the letter, he trusted
Michael and Lori Fortier. He trusted them enough to reveal to
them incriminating information, incriminating secrets, like
exactly how he planned to place the barrels inside that truck.
In this courtroom, Tim McVeigh has portrayed Michael
and Lori Fortier as morally corrupt drug abusers. Not too long
ago, they were his friends. The United States did not select
Tim McVeigh's friends; he did. The United States did not
select Michael and Lori Fortier as witnesses; he did. And as
friends, knowing what they knew, they came in and told you.
Lori Fortier testified pursuant to a grant of
immunity. So did Jennifer McVeigh. And as witnesses, the rule
applies to them precisely the same. Provided they tell the
truth, that's the proviso. Then the United States of America
can't take those same statements and use them to prosecute
them. That's what a grant of immunity means, a promise not to
use the testimony, their truthful testimony, to prosecute them.
Michael Fortier testified pursuant to a plea
agreement. It's a different animal of sorts. And that
document, that plea agreement, is in evidence; and you should
examine it. It requires him to appear as a witness. It
requires him to provide truthful testimony. And in return, the
United States will make known his cooperation to the sentencing
court, and Michael Fortier may receive a reduced sentence, a
lesser sentence than if he had not cooperated, if he had not
appeared before you as a witness.
Plea agreements are contracts. And I expect his Honor
will tell you that the United States is permitted to enter into
such contracts. This contract between the United States of
America and Michael Fortier was negotiated and signed off on
behalf of by Joe Hartzler, representing the United States. And
there are two provisions in that contract that should not
escape your notice. First, Michael Fortier loses all the
benefits, past and future, if he doesn't testify truthfully. A
condition of his plea agreement.
And second, the agreement says if any evidence
develops indicating that Michael Fortier was involved in any
agreement at any time with anyone to bomb any federal facility,
that agreement's gone, and Michael Fortier can be testified
(sic). Time has passed, months have passed, more than a year
has passed since that plea agreement was entered into, that
contract was entered into. The United States stands by its
plea agreement with Michael Fortier.
What happened in this courtroom happens all the time
around the country, in other courtrooms, cooperating witnesses
testify, juries are faced to examine what are the pushes and
the pulls, what are the motivations of people, where might they
break down, and even though the law requires truthful
testimony, do something different. That's your job, that's the
job of assessing credibility. That's your job for Lori
Fortier, Michael Fortier, and Jennifer McVeigh.
And the courts recognize this practice and in fact I
suspect the Court will tell you about a jury instruction that
says just that, be aware, be aware of those kinds of influences
that may be brought to bear on witnesses, be aware, examine
them, ask the hard questions, ask them not once, but just
twice, examine the testimony of those witnesses with special
care, great scrutiny, caution, think about it, think about it
more than once.
As you do, think about this. Think about how in
essence what Michael and Lori Fortier, these morally corrupt
drug abusers, these former friends of Michael -- excuse me, Tim
McVeigh have in common with Jennifer McVeigh, also testifying
under a grant of immunity. What is it that they have in
common? What they had in common was a unique personal
relationship with Tim McVeigh in a way that permitted him as he
demonstrated, to open up, to share in correspondence and in
conversations his plans to kill other people.
Jennifer McVeigh got the correspondence, Jennifer
McVeigh knew the questions, and she didn't want to ask her
brother. She had learned just like Michael and Lori Fortier,
this man is on a course that may destroy others.
So as you evaluate the credibility of the Michael and
Lori Fortier, think about Jennifer.
I'm going to return before morning break to one
discrete area of the evidence, and that is storage lockers.
Lots of evidence about storage lockers, and it answers the
question: What do you do if you got 2 tons, 4,000 pounds of
ammonium nitrate and you want to keep it safe and you want to
keep it secret and it has to stay there for six months or so
until April 19 rolls around.
Well, you do what Tim McVeigh and Terry Nichols, did:
You go out and get storage lockers in phony names, paying cash.
The first one on September 22, 1994, was obtained by Tim
McVeigh. Let me show you a photograph of that. Exhibit 359.
You remember this one. And you saw so many pictures of storage
sheds, this one's not much more distinctive than the others,
but I'll tell you, as the evidence will support, this one is in
Herington, it's a Unit No. 2, in Herington, Kansas, a little,
bitty town just south of Junction City and just north of
Marion.
On September 22, 1994, this unit, Unit No. 2, was
rented and Helen Mitchell -- you remember her, the woman who
works with her brother who owns businesses in Herington, and
she's the bookkeeper for the lumberyard and she also takes care
of leases on the storage sheds. And she came in and said, I
found the lease when the police asked for Unit No. 2 and here
it is, signed by Shawn Rivers. That was the name given by this
renter. I can't identify him, it's been too long ago, I see a
lot of renters, but I know this is my record, and it is in the
name of Shawn Rivers.
It was entered into on September 22, 1994. What's so
important about that date. Well, the importance of the date is
it's before they buy the first ton of ammonium nitrate. Bad
planning if you go out and buy a ton of ammonium nitrate and
nowhere to put it, so you got to get a storage shed first, and
that's what they did: September 22, under a false and phony
name, they already had this storage shed.
For some unexplained reason, and you'll remember the
convergence of these facts, in September of 1994, September 22,
precisely, Terry Nichols was still living at the Donahue ranch,
and I asked him, what's the address, if you live at that ranch
house, what's the address. His answer was the same answer that
Mr. Shawn Rivers gave on that lease, the very same answer,
Route 3, Box 83, Marion, Kansas, that's the address that Shawn
Rivers gave Helen Mitchell on September 22, 1994. Well, who
was there, who was living there at that time: Tim McVeigh. As
Mr. Hartzler said, no case ever answers every question; why Tim
McVeigh gave an address that might be traced back to him: Who
knows, but he did. And you know that because when Helen
Mitchell pulled that lease out of her file, turned it over to
the FBI; what they found on the FBI -- excuse me, on the lease
was eight fingerprints of Tim McVeigh. Tim McVeigh is Shawn
Rivers. Tim McVeigh, the man living with Terry Nichols in
September of 1994, on that date, September 22, went out and
rented a storage shed in a fake and phony name, and for the
purpose that I've suggested.
There was more evidence about storage sheds. And you
can travel through lots of documents and try to review all of
the witnesses' testimony about this, some of which is less
exciting than others, no doubt, but it boils down to this, it
boils down to this book, Exhibit 250, that Mary Jasnowski, the
lawyer from Omaha that headed up the search of Mr. Nichols
house in April of 1995, put into evidence and she said, This is
a book that I found in the Nichols' house, the same book that
Mr. Hupp said had Nichols' fingerprints on it.
On the pages marked here at the top, Joe Kyle, No. 40;
Ted Parker, No. 37, where have you heard those names and
numbers before? The answer is Shari Furman. Remember Shari
Furman's testimony? She came in and said that Boots had some
storage sheds in Council Grove, Kansas, I'm his bookkeeper, I
keep his records, Boots is not real good about record-keeping,
I do my best. I don't have a lease for exhibit -- excuse me,
for Unit 40, Joe Kyle, Boots probably handled that one, there's
no lease. I did handle the lease for Ted Parker; I got a
signed contract. And I got it because I went out to the
storage shed in Council Grove -- remember the story -- and I
met the man to wanted to rent another unit, rent a unit,
introduced himself to me as Ted Parker, he wrote the name on
the form, Ted Parker; and after the bombing, I look at TV, Ted
Parker is Terry Nichols, that was Shari Furman's testimony.
Ted Parker, Joe Kyle, in Terry Nichols' house in his
notebook, one and the same.
The testimony in this case about storage lockers boils
down to one important fact: All of them, except for the one
out in Arizona, all of them in central Kansas, the place where
they were acquiring bomb components, were paid through
April 21. Bombing's on April 19, they were paid through the
date of the bombing.
And when they were searched -- and they were -- they
were empty. The United States of America found no evidence, no
physical evidence inside of those storage lockers. And the
rest of the evidence explains why. You remember the ammonium
nitrate, we'll talk about that just very briefly. Sold in ton
quantities in shrink-wrapped pallets and in double-lined bags.
That's how they're packaged. Makes it hard to trickle out. By
April 21, 1995, when the FBI got to those storage sheds, they
were simply too late. That ammonium nitrate, other materials
had gone up in smoke in Oklahoma City.
Your Honor, this might be an appropriate --
THE COURT: All right.
MR. MACKEY: Thank you.
THE COURT: We'll take our morning recess at this
time, then, members of the jury, and of course you recognize
that the case is not been given to you for a decision; that --
just as has been true in all recesses up to now and will be
true until you're instructed otherwise -- you must keep open
minds, do not discuss the case or these arguments, and avoid
anything outside of our evidence which may influence you in any
way on the decisions to be made. You're excused now for 20
minutes.
(Jury out at 10:19 a.m.)
THE COURT: Recess, 20 minutes.
(Recess at 10:20 a.m.)
(Reconvened at 10:40 a.m.)
THE COURT: Be seated, please.
(Jury in at 10:40 a.m.)
THE COURT: Mr. Mackey, you may proceed.
MR. MACKEY: My folks didn't use the term "deferred
gratification," but that's a principle I learned as a kid.
Some things just take a lot of effort.
Phone records. Phone records. A lot of witnesses, a
long time, but it was worth the time in this case.
The Daryl Bridges phone records will help you. They
will guide you. They will direct you to answers that you must
answer (sic), to help you come to the conclusion that Tim
McVeigh is guilty.
Mr. Jones stood up in opening statement and said the
Bridges debit card didn't have a camera on it. Well, that's
exactly the point. Tim McVeigh and Terry Nichols would not
have used a card thinking that it would be easy to track how
they were using it. They thought if you buy a card in a false
name and if you don't get a record in the mail from the company
that nobody is keeping records, nobody can find the phone calls
to Ryder, nobody can find the phone calls to the various
companies, nobody can find the phone calls that you now by
virtue of Mr. Dexter and others have found. They didn't
realize that; and of course, how could anybody have known about
Fred Dexter?
Mr. Jones said the phone records in his opening
statement, he would prove, are unreliable; that you would be
foolish to place any weight on them. How could he have known
about Fred Dexter?
Computers are amazing things, and we learned a little
bit about that in this case. With computers, with time, with
skill, with dedication, you can find them. Deferred
gratification? Just wait, do the work. It's there. It wasn't
quick, it wasn't easy; but the phone records produced to you in
the course of this case are reliable, and they'll help you
piece together questions that you'll have.
The question that occurred to me as Mr. Jones attacked
the phone records in opening statement is "Why the bother?"
Well, the answer is because they incriminate his client,
because he wants you to think that they're unreliable, because
he wants you to look the other way.
His Honor told you at the time that we produced the
testimony that the phone records themselves, the Bridges
summary, doesn't tell you, and you cannot conclude by just
looking at the phone record, who it was that made that phone
call from a pay phone, who it was that was in Terry Nichols'
house when that phone call came in, and certainly the content
of the conversation. That's why there is a whole range of
evidence in a case like this, bits and pieces, brick by brick.
But this case is done, and we put in all that other
evidence that with in combination the phone records, there it
is. That wall is built.
We'll start with the most natural question: Who is
going to use the card? And the answer is, at least in my
neighborhood, it's who paid for it. And the proof was seven
money orders all made payable from, quote, "Daryl Bridges,"
this false and phony name, two of them identified by Jennifer
McVeigh as "the handwriting of my brother," and the other of
Terry Nichols by other witnesses and your own observation. The
two men who used the card are the same men who paid for it.
And Kevin Nicholas -- remember the factory
worker/farmer from Michigan. He said Tim McVeigh came and
stayed with me, I saw he was on the phone. You can tell from
Kevin, he counts his dollars. He was alarmed and maybe a
little bit worried that his friend was going to take advantage
of him and run up a big phone bill. He asked Tim McVeigh about
it. Tim McVeigh said: "Don't worry. I'm using your phone.
I'm not charging on it. Terry and I share a debit phone card."
And all the questions about the unknowns got answered in this
case. And look at where those phone calls are taking place. I
mean, if any of you have a detective's instinct, this is part
of the proof that you can enjoy, because you can look at pay
phones located in cities where other proof shows Terry Nichols
was or Tim McVeigh was. You can look at pay phones -- excuse
me -- calls that come out of motels and ask yourself, Didn't
someone testify that Tim McVeigh was registered at that same
room -- excuse me -- at that same motel the same time as this
phone call? Those are pieces that come together, and they
answers the questions that the records alone can't.
For example, the last two phone calls in the Daryl
Bridges card, April 17, last two phone calls -- after that,
both these defendants are in custody -- April 17 are two phone
calls. They both come from a pay phone in the Kansas City
airport. Look at the records. It doesn't say who is on the
phone. It doesn't visualize who picked up the receiver, but
Marife Nichols did. She testified, "On that day, Terry and I
took Josh," his son, "to the airport in Kansas City, put him on
a plane to Las Vegas." Where did that phone call go to? One
of those two from that pay phone? Las Vegas. Las Vegas. The
residence of Josh's mother.
And the next phone call, the other phone call on that
last day? Where did it go? It went to the Dreamland Motel.
Terry Nichols -- you know because Marife was here -- said Terry
Nichols used the pay phone; and now with the Bridges phone
card, we know where he called.
And you know from Eric McGown, the 19-year-old son who
lives with his sister and his mother -- that lived there at the
Dreamland -- that's their home as swell their business. You
know from his testimony, he put into evidence the registration
card for Tim McVeigh. Where was Tim McVeigh according to that
registration card and Eric McGown on that same day? The
Dreamland Motel. Circumstantial, but direct and circumstantial
count the same in this game. You decide if that hasn't
answered the question of who was using the Bridges card and how
they were using it.
And when you think about that, when you think about
that, think about this book again. Turner Diaries, Homemade
C-4, two short books that became very important to Tim McVeigh;
because in this book, in this book, just like it said, go to
farm supply stores for ammonium nitrate. It tells you where to
go if you're looking for nitromethane.
Page 13, you'll see it: "The best place to look for
nitromethane is at drag strips and stock car races." Right
here. And how many witnesses did we hear who were from drag
strips or race car tracks? Here's the Yellow Pages put in
evidence before you, Yellow Pages that correspond -- you'll see
the highlighting -- to calls that were made on the Bridges
card.
Another place to look for nitromethane according to
this book -- another place is hobby shops. There is a Yellow
Pages for hobby shops. Somebody using the Bridges card was
calling hobby shops, somebody who read this book, somebody who
said, "If I'm looking for nitromethane, follow the map."
And then this book says, "If all else fails, if all
else fails, nitromethane can be ordered at extremely high
prices at chemical supply companies," right here in this very
same book.
Somebody -- somebody using the Bridges card called
chemical company after chemical company right down the Yellow
Pages, as if they had read this book.
And I will tell you that you can read this book more
than once and not find any explicit reference in here about
barrels. They don't talk about where you get barrels. But Tim
McVeigh and Terry Nichols didn't need Homemade C-4 to say where
you get barrels. They went back to the Yellow Pages. And you
saw again in the fall of 1994 nitromethane, ammonium nitrate,
all these other components, searching, searching with their
fingers for barrels, containers, something that would house.
Visualize: Maybe soup cans.
Well, what was the defense's response to all of this?
Mr. Dexter was on the stand a long time, and part of the
cross-examination about the Yellow Pages is, "Well, on that
same yellow page, there is entries, are there not, for chicken
dinners?
"Yes.
"There is entries on there for hogs?
"Yes."
Here in the Yellow Pages. They're not in the Bridges
summary, and that's the point. Nobody using Bridges' card
called for chicken dinners. Hogs? It's a big record, it won't
take long to look at it. There are no calls to anybody listed
in the phone book under "Hogs." There are for nitromethane,
for ammonium nitrate. There are no barrels. There are for
things that matter. Things that matter.
We've talked about the first of the ingredients,
ammonium nitrate, and I'll talk to you more about that; but you
need more. All the experts -- and even these experts agree you
need something more. You need a fuel. Nitromethane got talked
about a lot in this case, for good reason, because there was a
lot of evidence that Tim McVeigh and Terry Nichols set out on a
course to acquire that second important chemical, that
sensitizer, which you pour into that oxidizer to make it work.
And the book says, "If you apply yourself to the task,
you can do it." Well, that's another way of saying
premeditation, planning, and deliberation.
Let's start with Lori Fortier. She remembered in
October of '94, again, October, September, a refrain that's
repeated so many times by witnesses, that she looked out of her
window and saw someone she didn't recognize. Now, this is not
a large, luxurious estate. This is a house trailer. And she
looks out and sees somebody she didn't recognize, and she
responds. She heads out the door; and just as she gets there,
she recognizes, This is somebody I know; this is Tim McVeigh.
He was dressed in a disguise. This was his biker
outfit. And you saw the picture in evidence, a picture of Tim
McVeigh dressed in a motorcycle shirt with a bandana, Harley.
And there is nothing wrong with people who ride motorcycles --
nothing at all. But they are people that acquaint (sic) drag
strips and acquaint race car strips and buy nitromethane. If
you want to disguise yourself and buy something that could be
used for a criminal purpose, why don't you look like somebody
who could use it for an innocent purpose?
Jennifer McVeigh said that she remembered talking to
Tim McVeigh and asked about this biker outfit; and he said,
"It's a disguise." He said it. We don't have to conclude. He
said it to his sister, and she told you.
And yet there was a third reference to "biker," and it
came from Michael Fortier; and he talked about how Mr. McVeigh
said, "I want to get some fuel." He said mistakenly anhydrous
hydroxine. He was wrong about how you pronounce that last
word, but that's actually a reason why you ought to credit his
testimony. It's not canned. I mean, he gave you what he
recalled: Anhydrous hydroxine. And he said, "McVeigh told me
his plan was to dress up like a biker and go to a raceway."
And that's what Linda Juhl from Mid Chemical Company
in Oklahoma talked about. She said, "I remember getting a
phone call from a young male who was calling from Kansas, who
was asking with these chemicals." You'll find those phone
records trace right to Mid Chemical, Kansas. Somebody --
somebody used the Bridges card to call Linda Juhl and asked
about a chemical that you can use to kill people.
Glynn Tipton: Glynn Tipton, like Tim Chambers, two
men who spend their weekends, at least during race season going
around the territories, working out of the backs of trucks, and
selling to people who consume those fuels. Decent living, deal
with a lot of different customers. Glynn Tipton remembered one
of the customers that he encountered first weekend in October
of 1994. It was in Kansas. He was at a racetrack, do you
remember, just south of Topeka. Just south of Topeka.
Mr. Tipton talked about this man who in this courtroom
he said is this man, 90 percent certain, 90 percent certain,
because as he said, this image, the reason I remember at all is
burned in my memory because this guy wanted something I had
never encountered before: He wanted anhydrous hydrazine. He
admitted that's a little bit out of his league, wasn't familiar
with it, had to do some research, had to check with people; and
when he checked, he learned that if you mix anhydrous hydrazine
with nitromethane, two chemical terms that are talked about in
this book, you will have an explosion of immense proportions.
I mean, he remembered that.
And so he remembered when this fellow called him back
later the next week at his office in Manhattan, Kansas. And by
that time, he learned that he was not going to be able to
deliver; but back-to-back occasions of dealing with this
person, all talking about something that to this man, Glynn
Tipton, was very unique, very unusual.
And you'll see in the Bridges card on October 7, there
is a phone call that afternoon to VP Racing. That's in
Manhattan. That's where Mr. Tipton worked. That was his phone
number. That's what he said. October 7, 1994. Comes from the
residence of Michael Fortier, and Michael Fortier shared his
home and his phone with Tim McVeigh on many, many occasions.
Well, stay with me for just a moment on October 7,
because earlier that same day, the top entry there is a phone
call to Arctic Traveler. Arctic Traveler was maybe mentioned
once or twice in this courtroom, because it was one witness,
one witness only, David Pinnell. Mr. Pinnell was the man who
was working for Arctic Traveler in October of 1994, a long
history with the Air Force and was then for a brief period of
time selling small generators. Remember that? Small
generators to people who called in and inquired. They had a
good story in the Soldier of Fortune magazine reviewing their
product. They got a lot of phone calls after this article.
One came on October 7, 1994. He knows that. He didn't have
the Bridges record. He knows that from his own records.
And those are the records where he sat down, as any
businessperson would, who is following the lead on a sale, and
you write down the information the caller gives you. Now, this
caller did not give the phone callback number, and he told you
why. But he did give him his name and he did give him his
address, and that's in evidence. And the caller: Tim Tuttle.
The address? Kingman, Arizona, same day from the same place.
Tim Tuttle: Michael Fortier says that's the name, an alias,
used by Tim McVeigh.
Kevin Nicholas, his friend, who has no reason to lie,
says, When we do gun shows, Tim McVeigh used the name Tim
Tuttle. Pieces that fall together, bricks set one upon
another, a wall that begins to build.
On that day, just like Glynn Tipton said, I got a
second phone call from this person, a man asking about these
two very volatile chemicals. It was Tim McVeigh, and he was
looking.
It didn't work. He didn't get the stuff from VP
Racing, at least the one in Kansas, at least the one in Kansas.
He took more time. He took -- just like Homemade C-4
said, "Apply yourself to the task, keep at it, you can run it
down." And so Terry Nichols and Tim McVeigh ran down and --
ran down to Ennis, Texas, a few weeks later, October 20, 21 of
1994, drove down from Junction City through Oklahoma City,
spent the night. You remember Mr. Patel from the Amish in
Pauls Valley, Oklahoma, a small city south of Oklahoma City and
north of Ennis. The next morning, they went to the racetrack.
It's another Tipton look-alike, if you will. Tim Chambers,
Glynn Tipton: They both worked for the same company. They
don't know each other, but they both in this case, as you know,
met Tim McVeigh.
Tim Chambers came in this courtroom and said: It was
that weekend, I'm selling nitro. This guy comes up. He asked
me to -- if I could sell it. I sold it to him, and here's the
receipt. He brought it to you. He found it. October 21,
1994, cash, siphoning pump. Someone would need a means to get
the chemical out of those drums. Bought a siphoning pump, and
it's that person spent almost $2,800 buying more than
160 gallons of nitromethane. Nitromethane. And that somebody
was Tim McVeigh.
Tim Chambers did not say, It's the man over there with
the blue plaid shirt. He couldn't do that. He said, I'll tell
you what I remember. Do you remember how he went through the
description, his physical description? It was almost like
scrolling through. Jeff Davis. I mean how people recalled
certain features; and you line them up against the man in
question, and you have a person who fits that description.
Talked about his height, talked about his build, talked about
his weight, and he talked about facial features that, in his
description, reminded him of a possum, eyes that are close
together.
By October 21, 1994, Tim McVeigh and Terry Nichols had
2 tons of ammonium nitrate and more than 160 gallons of
nitromethane.
And the biker. You remember Mr. Chambers said, This
person said, I'm a biker and that's why I want nitromethane.
Jennifer, biker; Lori, biker; Michael Fortier, biker;
Tim Chambers, biker. Pictures of Tim McVeigh looking like a
biker, disguised, because what he was engaged in was not
innocent street-racing, not even something a little more
exciting like drag-strip racing. He was buying it for the
purpose promoted in this book and committed to him.
Mr. Chambers gave you one other final reason to link
this event to this courtroom, and that is he said, When I
loaded those three drums, 54 gallons, I did so in the back of a
dark-colored pickup with a white -- faded white, he said,
topper, flush with the cab. All of us have seen campers. This
is a topper, runs flush to the cab; and that was the
description he gave of the vehicle driven by the man who bought
the nitromethane.
Finally, let me return to the Bridges card. If you
want other proof that they had what they were looking for by
that date, go back to the Bridges card; and when you scroll
through the activity there, you'll find that after October 21,
after the date of the receipt, all of the phone calls to Coogle
Trucking that we know is a supplier for nitromethane, all the
phone calls to VP Racing, all the phone calls to chemical
companies, all the phone calls to hobby shops, all the phone
calls that anyone with any research would say, That's where I'd
go if I'm looking for nitromethane -- they end. No more phone
calls after that date. They didn't have to call anymore. They
had what they needed.
Oxidizer, sensitizers, words that hopefully many of
you will have little reason to remember for future events; but
they're materials that got used in this courtroom. And
everybody said that's not enough. In addition to ammonium
nitrate, in addition to chemicals, you've got to make something
explode. You've got to set off that small series of explosions
that will cause the big one. And that's when we learned about
det cord and that's when we learned about boosters and that's
when we learned that Tim McVeigh and Terry Nichols acquired
once again all the ingredients they needed to build this bomb.
Greg Pfaff, one of the early witnesses: He's the
fellow, remember, from Harrisburg, Virginia -- I think I have
it right. He runs the deli, once was on the gun-show circuits.
That's how he got to meet Tim McVeigh. He remembers this
unexpected phone call in the fall of 1994 from Tim McVeigh,
this person he knew; and Tim McVeigh says, Can you get me det
cord? Can you get me det cord? Now, you judge Mr. Pfaff and
judge whether that might be a conversation he would recall. He
recalled it; and recall, too, that Mr. McVeigh said, If you can
get it, I'm prepared to drive across the country to get it, to
get it from you. Don't send it by mail. I'll come get it.
That's not where Tim McVeigh got the det cord, but
that's evidence you can consider as to whether Tim McVeigh was
intent to getting det cord.
He obviously got it from somewhere. Tim McVeigh got
det cord from somewhere, because, as you remember, det cord is
this hollow tube. And running down the center of this hollow
tube is something called PETN. PETN. It's the same substance
that Mr. Burmeister -- Agent Burmeister said he found on Tim
McVeigh's clothes, in his pockets, and on the earplugs. That's
where PETN rests until you cut it, until you handle it, until
you do so in a manner that can leave residue.
Now -- and I'll take you back to April 19, 1995,
that -- the day that Tim McVeigh was taken in custody on a
public highway in Oklahoma. People at Noble County had no idea
that they were dealing with a person later charged with the
Oklahoma City bombing. They processed him like they would
anybody else, followed the same procedures, took his clothes,
put it in a new bag and set it aside, took his contents in his
pockets, his pants, including the earplugs, put it in a Ziploc
bag, put it someplace else.
What they did tell you is that there were certainly no
other prisoners in the Noble County Jail that were charged with
high-explosive cases, no other source, no other likely
reasonable source for any PETN that might later be found in
evidence in two different places in our jail. They told you
that.
The defense has suggested that you should ignore --
more than ignore -- maybe condemn the PETN finding testimony of
Agent Burmeister. You shouldn't do that. You should credit
it. And you should reason that it is evidence pointing once
again in the direction of guilt of Mr. McVeigh; because if you
reject it, you will have had to imagine, almost as
Ms. Wilkinson visualized for all of us, a little fairy that
would sprinkle PETN in the clothes of Tim McVeigh, knowing you
ought to put more PETN the right pocket for a right-handed man
than in the left.
Actual contamination is one thing. Suggestions,
accusations of contamination is something entirely different.
And in this case, in this record, with all the witnesses, both
from the jailer in Noble County all the way up certainly
educational line to people like Agent Burmeister and Dr. Fred
Whitehurst, what you have seen is a question that has to be
posed to you; and that is, is there reasonable likelihood of
contamination? Did it happen in this case? Not whether, in
fact, if we could go far enough the earth turns flat, but
what's the evidence in this record? What is the proof, the
affirmative proof, that the PETN that was found came from a
source other than high explosives that Tim McVeigh handled?
Agent Burmeister was saluted, if you will, by
Dr. Whitehurst as an extraordinarily careful chemist, a man who
operates by principles of science, in this case and every case;
said, I did every test possible. I did test upon test. He
didn't stop with the first finding. He went after it again and
again. And further, before I came in this courtroom --
further, before I testified before you, I ran down everything I
could about the chain of custody. I wanted to satisfy myself
before I testified to you that PETN that I found was not the
result of something else other than Tim McVeigh putting on his
clothes and putting in his earplugs.
The fact of the matter is that 75 minutes after the
bombing and 78 miles from the bombing, Tim McVeigh was pulled
over at that precise moment he was wearing clothes with PETN
and other explosives residues consistent with all the other
evidence in this case. If that's all the evidence there was,
maybe you should think long and hard. But you have to take it
in the connection with the rest of the evidence, all the
evidence about ammonium nitrate, nitromethane, and everything
else. It all adds up. It all adds up.
Back to boosters, back to things that make the main
charge explode. And we told you how his first step in 1994 was
to reach out to friends, sort of the easy way, if you will.
That didn't work. That didn't work. Tim McVeigh had to commit
burglary in order to get the necessary ingredients that would
be part of his bomb.
On October 1, 1994, Michael and Lori Fortier got a
phone call from Tim McVeigh -- and it was talked about and is
in the records -- and Tim McVeigh said, Go out of town and rent
a storage shed under a false name. They didn't end up doing
that. You heard the explanations for it.
Later, McVeigh and Nichols together show up in Kingman
and they at some point at some time have gotten their own
storage shed. And they invite Michael Fortier out to the shed.
He goes out there with Tim McVeigh and Terry Nichols. He goes
inside the storage shed, and McVeigh shows him what he
estimates to be about 12 boxes, 12 containers; and McVeigh
tells him, These are explosives that Terry and I have stolen at
a quarry not too far from Terry's house. And Michael Fortier
remembers noticing on the box, one of the boxes he saw, this
yellow triangle, this distinctive industry-regulated
requirement that if it's explosives, tell the world so they
don't get too close. He remembers seeing that. It registered
in his mind, and he told you about it.
He also -- that is, Mr. McVeigh -- told Michael
Fortier, the same man to whom he revealed lots of things, how
they did it, not only where they went but how they did it. And
they said, We took a handheld drill of Terry's and we went out
and drilled the locks to break into these magazines, these
explosive magazines, to store it. And then he told you that --
or Fortier did -- that sometime after the burglary on the way
to Kingman, they almost got into a car wreck. That would have
been a car wreck, and that's what they were talking about. He
said, Lots of explosives we had stolen were almost in a car
wreck.
Well, do you remember Jennifer McVeigh and this
conversation about I talked to my brother, he said something
about a car wreck, and he said something about carrying
explosives up to 1,000 pounds? And there was cross-examination
about, Well, we're not talking about two Christmas boxes full
of blasting caps. That's not a thousand pounds.
Well, someone has got the dateline wrong. You won't
have it wrong. You won't have it wrong, because this episode
happened in the fall of 1994, not Christmastime, 1994. And you
know why? Think about the proof: Bud Radtke, Allen Radtke,
Bud, the blaster from quarry -- from the quarry in Marion,
Kansas, came in here. Looks like he makes a living filling
holes with explosives, detonating them, and watching rocks go
away. I mean that's the kind of people you met in this case.
And what he said is, When I discovered that burglary at my
explosives locker, we went through it and tried to make some
kind of judgment as to how much had been stolen. He recounted
the number of boxes of Tovex sausages that were stolen. If you
add it up -- listen to his testimony -- there was more than
400 pounds alone of the Tovex sausages taken in that burglary
in central Kansas just a few miles down from Terry Nichols'
house.
But that wasn't all. There was the blasting caps,
several, several boxes of blasting caps also taken in that
burglary; so the event that we're talking about when you think
about the weight of the evidence is clearly the fall of 1994,
not Christmas of 1994.
Finally, the question about at least as to the
presence of these defendants at the place of the crime in
October of 1994 is answered once again by Tim Donahue.
Remember his testimony? He said, Once I gave the last paycheck
to Mr. Nichols, I was a little bit worried because he still was
in the house and so I hovered around. He admitted it. He
hovered around the property. He's responsible and watched
until Sunday, October 2, he saw Terry Nichols' truck take out
of town. And then that was the last time he saw it. Terry
Nichols was in central Kansas in the same weekend this burglary
took place.
Those burglary -- or excuse me. The explosives taken
in that burglary for some reason were taken halfway across the
country, maybe to clear out of town, to Kingman, Arizona; and
you know now where they were taken. You heard the testimony
about a storage shed. Let me show you Exhibit 170. This is
the top of that lease; and it shows that on October 4, two days
after Tim Donahue last saw Nichols, on that day, Tim McVeigh
using his real name rented a storage unit, Unit No. A10 in
Kingman, Arizona. This is the picture of that particular
storage shed.
The question that occurred to you as you listened to
that testimony in light of other testimony is why would Tim
McVeigh use his own name, especially after he had asked Michael
Fortier, Get a storage shed but use a different name? Well,
the answer was from Jodie Carlson, and she was the woman who
came in from Kingman storage and said, My practice has always
been at that place, you don't give them a unit, you don't sign
up a lease unless they produce a driver's license. Tim McVeigh
didn't have a choice. He had to produce a driver's license,
had to use his own name. And that's what happened. Contrast
that with Sharri Furman and with the other people in the Kansas
units -- or the units in Kansas. That's not the practice.
They could freely use false names.
Why do you need a storage shed on October 4, 1994, if
you're Tim McVeigh in Kingman, Arizona? The answer is: Just a
few days earlier, you've stolen several hundred pounds, maybe
up to a thousand, of explosives and you need a place to hide
them.
The proof about the burglary doesn't stop there.
There is more. Remember again what came out of the Nichols'
residence in April of 1995. Let me show you Exhibit 140. This
is the picture of a cardboard box found in the Nichols'
residence in April of 1995. And more than one witness said,
Look at the orange coils. To some of us, maybe they look like
extension cords. That's not what they are. Those are Primadet
blasting caps that Bud Radtke said are just the same kind, just
the same length, just the same delay that were stolen in my
burglary in October of 1994. Primadet blasting caps still in
Nichols' house, still under his control months later. That
fit, that matches just what the blaster said they lost in that
burglary.
Think about, if you would -- and you saw some of the
photographs. I want to show you at this time the magazine that
was broken into, what it might take to accomplish that job.
These are explosive storage lockers. They're not
meant to be gained entry easily. They're meant to discourage
theft; and for that reason, as you'll see, there is a shroud, a
metal container -- there it is -- over the lock. Can't get in
unless you have a key to open the lock or unless you use a
drill to reach up into that shroud, reach up into that
container and drill out the padlock, just what Tim McVeigh said
they did when he talked to Michael Fortier.
Jim Cadigan was an expert who testified in this case.
He told you he works for the FBI in their tool-mark impression
section, and he told you that he took a drill bit that was
taken from the Nichols' residence, a drill bit, and he made a
test impression and then he compared it to the tool marks or
the drill marks that were left in the padlock from the crime
scene; and this is the exhibit that he showed you.
Now, remember as you examine this, this is not like an
album, stereo album broken in half. Think about the
conditions: Outside, late at night, with a handheld drill,
trying to stay secret, trying to stay silent, you drill up the
padlock, and you leave it behind.
It's not laboratory conditions. You're going to leave
behind the kind of defects that you see on the left-hand side
of the screen.
Mr. Cadigan has got a different way of doing work at
the laboratory. He can make a test impression that is much
more controlled. When you make those comparisons, the point of
the matter is they match. That was his testimony. The drill
bit that came out of the Nichols house made the same
impressions on the padlock found at the crime scene, further
proof of just what Tim McVeigh told Michael Fortier: They
committed this burglary for what was inside.
Let me show you finally Government's Exhibit 122, and
this is the picture identified by Mr. Radtke. This is inside
that storage shed. And you'll notice on the boxes that you can
see in the left- and right-hand side that distinctive orange-
or yellow-colored diamond, just the way Michael Fortier
described what he saw with Tim McVeigh and Terry Nichols in
this storage unit out in Kingman, Arizona.
Tovex sausages, as you learned, is a booster. It will
work. It will perform that part of the function, but so is
TNT. So is TNT. You learned that in this case. They're just
as effective as Tovex as maybe more so. Experts might
disagree.
What you also learned in this case was that Tim
McVeigh travels fast and light. You heard that phrase used by
his own defense counsel, "travels fast and light." And that's
what and how he was traveling when he got pulled over by
Trooper Hanger. And you remember that when Trooper Hanger went
to his car later, he found the card. And on the back side of
that card in Tim McVeigh's writing, "TNT." You need to
consider that as you consider whether Tim McVeigh acquired
boosters enough to make the bomb that he intended to explode.
And remember, as you study the language, that this
card doesn't say, See if I can get some TNT. It says, "See if
I can get some more TNT."
What do you have if you have all these ingredients?
You go back to Homemade C-4 and you have, as this author
describes, something that can shatter concrete and shred steel.
And that was the effect it had in April of 1995 on the Murrah
Building.
Let me return briefly to Kevin Nicholas. And he comes
up so often, partly because he in some ways can be a barometer
to guide you in deciding credibility of other people. Think
about the Christmas boxes of blasting caps. Kevin Nicholas
said, I'm sitting at home. It's dinner. It's near Christmas.
He showed you pictures of his home later, and there was snow on
the ground in central Michigan. It's up in the Thumb. And he
says the phone call rings -- or excuse me -- the phone rings
and it's Tim McVeigh. And Tim McVeigh says, I've been in a
wreck; I need your help. I've been in a wreck, and I need your
help.
Kevin responds. He's a friend of Tim McVeigh. So he
gets in his car and he drives down to a Speedway stop, and
there he finds Tim McVeigh tucked back away from the public
area in between some semitrailers. And his car is damaged.
There is no doubt. Clearly by December of 1994, Tim McVeigh's
driving had caught up with him. He had been in a wreck; and
Tim McVeigh, according to Kevin Nicholas, said, Let's get the
stuff that's in my car and put it in your pickup truck. That's
what they do. Just at the moment Kevin is going to pick up
these boxes, maybe without regard for the content and maybe
because he didn't know the content, Tim McVeigh says, No, I'll
handle that. And he's the one who carefully puts them in back
of Mr. Nicholas' pickup truck.
Later when they make their way to Kevin Nicholas'
house, Kevin asks him and Tim McVeigh says, Those are blasting
caps in those boxes. Kevin Nicholas said, Those boxes were
wrapped like Christmas presents. A disguise, a means and
manner to fool people at Christmastime into thinking something
innocent was inside, when something, stolen explosives, was in
fact inside.
The Bridges card is at work again. Let me show you a
particular exhibit. And just like Kevin Nicholas reported from
a Speedway bus stop to his home, there was a phone call placed
on December 17, 1994 -- December 18.
Kevin Nicholas' testimony takes you back in time, not
too far back in time, to Kevin -- excuse me -- to Michael and
Lori Fortier. And they started the time line about those
boxes. They told you about the episode where they went out to
McVeigh's motel room; and after he asked them to bring these
matters, they came out and wrapped -- Lori did, wrapped these
boxes full of blasting caps. Kevin Nicholas, Michael and Lori
Fortier, they agree. In December of 1994, Tim McVeigh was
disguising stolen blasting caps and taking them across the
country.
That episode in December of 1994 at the motel led to
some other part of this case, and you heard from it -- from
Michael Fortier about it. That same visit to the motel room,
Tim McVeigh says, Come with me to Kansas. There are some guns
there. I'm going to give them to you. We're going to sell
them, and he does. And he tells you about leaving the day
after or the day of his birthday. He remembers that, falls
right on this time period, December 15, and they travel
together off to Kansas. They spend the night in Amarillo,
Texas; and the next morning, they go on to Kansas. Before they
get to Kansas, they stop in one place that Tim McVeigh wanted
to be sure to stop. They stopped downtown Oklahoma City.
Michael Fortier remembered it. He said, We drove around the
north side of the building first -- the south side, I'm sorry,
to the courtyard. He remembered seeing that. He made a turn
around, and then he saw what he described as a wall of glass.
No doubt that they were right in front of the Murrah Building
in downtown Oklahoma City.
They had lots of conversation at this time about the
bombing plan and what Tim McVeigh planned to do, and it was in
fact during this trip at this time in downtown Oklahoma City
that Tim McVeigh tells Michael Fortier, We're going to stage a
getaway car. We haven't decided yet, Nichols and I, as to
whether we're going to bring it down in advance and leave it
there or whether Nichols will be down there on the day of the
bombing waiting for the bomb to go off and the two of us to
escape together.
But they talked about it, and Michael Fortier told you
about it. And during that trip, McVeigh drove Fortier up an
alley and he said, This is going to be my escape route. And
Michael Fortier asked why.
And he said, You see this large building? I want to
be sure -- I want to be sure that there is a large building
between me and the blast. He was worried about protecting
himself, being too close to a blast that might kill others.
Michael Fortier remembered that conversation and he
remembered that route. He remembered the building. He stepped
down from the stand, looked at the model and said, This is it.
You know, this is it.
And you know from exhibits and because you have become
more familiar with downtown Oklahoma City than Michael Fortier
was that the building he was describing was the YMCA, a large
multistory building in this direction from the Murrah Building.
And this was the alleyway -- two alleyways that joined
together, and this was the escape route that Tim McVeigh
described to him in December of 1994, months before the
bombing.
In that alley, in the very same alley, the FBI later
found the key to the bomb truck.
You might not be surprised that a bomber, any bomber,
once he left the truck would get rid of the key. Any bomber
would want to get rid of incriminating evidence, and what could
be more incriminating than the key to the bomb truck?
It was found in the alley, the very same alley, that
Michael Fortier had described to you as being the alley
designated by Tim McVeigh as his escape route.
We learned in this -- in the course of this trial what
many of us already knew, and that is there are more cars on the
road than there are key codes, and so no doubt somewhere
somebody has a key that matches yours. But it's not likely the
key that you would pull out of a defense counsel's pocket, for
example. The percentages are much, much smaller, much, much,
smaller than that.
What's the percentage that laying in the alley, in the
very same alley that Michael Fortier identified as the escape
route, is a key that has the same key code that matches a
20-foot Ryder truck, Unit 137328? Is that just a coincidence,
or is that another brick in the wall?
The defense complained that we should have brought the
agent in who actually picked it up off the ground. Instead, we
put on two witnesses. Jim Elliott. You remember him? He was
a small, gray-haired fellow from the FBI who brought you the
axle early on in the case. He testified, I took this key into
evidence. That's his job. He controls the evidence. And the
second witness we brought in was Dawn Hester, the FBI
photographer from Texas; and she said, That photograph that you
just saw was my photograph. I took it before it got picked up.
And in this case for some reason, the photograph isn't worth a
thousand words. They want yet more evidence, more testimony
from more agents. The key is not going to turn into a tie rod.
It is what it is; and two people who had firsthand knowledge
about it, where it was and what it is, testified in this case.
In that same trip to Oklahoma City in December of
1994, Michael Fortier recalls, too, that Tim McVeigh said, If
need be, if need be, I will take my truck, my bomb truck, and
drive down the stairs and into the Murrah Building. And it was
his state of mind at least in December of 1994 -- and Michael
Fortier again showed you where the stairs would have been at
the Murrah Building. And that's a fact that you can rely upon,
because remember, the next time that he was in Oklahoma City
was for the grand jury, was for the grand jury, when he got a
lawyer and then began to cooperate. At that point in time in
late May, 1995, the Murrah Building was gone. It was gone. He
remembered the stairs because he was there, just like he said,
with Tim McVeigh. He remembered the stairs because it was the
measure of a man, as he described to you, prepared, so he said,
to kill himself to kill others.
Michael Fortier pled guilty to the crimes he
committed, including interstate transportation of stolen
weapons. And there was evidence in this case about the theft
of guns and/or matters from an Arkansas gun dealer. Lori
Fortier testified about a conversation with McVeigh where
McVeigh said, We're going to do it as a fund-raiser; and if you
think about it, a man who travels light, doesn't have a job,
that's probably a particularly accurate way to describe that
robbery.
And keep in mind, too, that even though it may be easy
to build a bomb that can do so much damage, there are costs;
and those costs can run up.
In the course of this case, we learned that the
ammonium nitrate cost almost $500. We learned that storage
sheds that we've talked about here, the rental fees, were more
than 600 bucks. The nitromethane from Tim Chambers was
approximating 2800. The Ryder truck rented much later in April
of 1995 cost $280, and the phone call bills on the Bridges card
for this time period cost more than $300, almost $4,500 to
acquire the ingredients needed to build this bomb. And that's
setting aside the free Tovex and blasting caps.
And so there was a need for money. And some of those
costs, remember, are incurred in the fall of 1994, and some of
them are incurred in 1995. And so there was a need for money,
and the answer to that need was the robbery.
You heard about that robbery from Michael Fortier, you
heard about it from Lori Fortier, and you heard also about it
from Kevin Nicholas. Lori and Michael recalled that Tim
McVeigh said Terry Nichols did the robbery of this gun dealer
in Arkansas, and he described a pistol-grip shotgun that he
used to carry out this robbery.
Kevin Nicholas said, He told me about his former
friend in Arkansas who lived back in a remote area of the
woods, the same words that the Fortiers used to describe this
victim; and he said that this fellow would be easy to rip off
because he lives out in the woods and because, he says, I don't
think he's the kind of guy that would report it to the police.
We did not call the victim of the robbery in this
case. We did not call the gun dealer who was robbed. But this
is a bombing case, not a robbery prosecution. What's important
about the robbery to this case is whether it provides you facts
that help support the conclusion that two men would do whatever
it took, including burglaries and robberies, to get money and
to get materials that could be used to build a bomb. And
that's what the relevancy is of the robbery in this case.
That's why it's important.
Let me turn now to Jennifer McVeigh for the final
time. Jennifer McVeigh was a reluctant witness, and that's
understandable. That is understandable. But it was Tim
McVeigh who put her in the position, who put her in the witness
stand. It was Tim McVeigh who put her in a position to know
facts that were shared with you.
Over the course of time, he wrote to her, as she
described to you, both in general and then later in more
specific terms the measure of his hatred for government. And
perhaps the single most significant document in this entire
case in terms of evaluating whether a person, any person, this
person, may come to hold a hatred so deep to do something so
horrible was in a document that Jennifer McVeigh brought to
you. Let me show you that document.
Jennifer McVeigh remembered that in the fall of 1994,
when Tim McVeigh was back, around Thanksgiving time, Tim
McVeigh used her computer. Jennifer McVeigh later had a
conversation with Tim McVeigh about this -- about this very
document, so she remembered it. And for some reason we'll
never know, this document existed after April of 1995. It
wasn't destroyed, but its words still ring for what they said.
It's addressed to ATF: "All you tyrannical MFers will swing in
the wind one day for your treasonous actions against the
Constitution and the United States. Remember the Nuremberg
trials, war trials -- but, but, but I was only following
orders. Die, you spineless cowardice bastards."
Those are words of Tim McVeigh. They measure his
intent, and they were delivered to you through a witness who
would rather not.
We will have to take Jennifer McVeigh's word that
there was nothing else that she destroyed, and she destroyed
more than one thing. That was even more graphic than this
document. We'll just have to take her word at that.
Remember in early 1995 the return to Kevin Nicholas,
because in that same letter that we talked about earlier there
was an enclosure; and he mentioned it was with the letter, the
same letter that talked about moving from intellectual to
animal, to ripping people's heads off. It was attached -- was
an enclosure. And in that enclosure were the words, "I will
celebrate any time," referring to ATF, "one of those Gestapo
bastards dies."
Terry Nichols' fingerprints were on that enclosure.
Tim McVeigh's fingerprints were on that enclosure. It's
evidence of their state of mind in 1995, months, shortly, weeks
before the bombing.
In the final weeks before the bombing, Tim McVeigh
sent more than one signal to his sister: Something was
imminent. Something was imminent. What other interpretation
can you make from the letter dated March 25 that she brought in
to you and showed you than his instructions in that letter:
"Don't send any more letters after April 1. Don't write after
April 1." The warning is going up. He's alerting his sister.
Something imminent is going to happen. Words like "Something
big is soon to occur."
When you think back to April of 1995, think back to
that time period in our history, is there anything -- anything
at all that happened that was bigger than the bombing of the
Murrah Building?
Spring arrived, 1995. All these materials that had
been sitting safe and secure, all the planning, all the final
configuration of these efforts were going to come to fruition.
Spring was here. Spring of 1995.
And what you learned from this evidence is either that
Tim McVeigh bombed the Murrah Building and killed the people
inside, or that he was the unluckiest man in the world:
Tim McVeigh just happened to be at a motel in Arizona
when someone using the Bridges card called a Ryder dealership.
Tim McVeigh just happened to buy a car at a Firestone
store in Junction City on the same morning that someone using
the Bridges card called a Ryder dealership in Junction City,
someone using the name Bob Kling.
Tim McVeigh just happened to check into the Dreamland
Motel in Junction City on that same day.
Tim McVeigh just happened to be the only registered
guest at the Dreamland Motel when someone using the last name
"Kling" ordered Chinese.
The Dreamland Motel just happened to be walking
distance from the Plaza Stop pay phone where a cab picked up a
rider for McDonald's.
And Tim McVeigh just happened to be captured on the
security camera at that same McDonald's as he leaves the
restaurant 20 minutes before someone, it just so happens, named
Kling arrived at the Elliott dealership down the street, which
just happens to be located within 20 minutes' walking distance.
Tim McVeigh just happened to check out of the
Dreamland Motel the day before the bombing.
And a key that would operate this Ryder truck, the
bomb truck, just happened to be found in the same alley that
Michael Fortier told you was his escape route.
Tim McVeigh just happened to be 75 minutes and
78 miles away from the bomb scene on the day of the bombing.
And when arrested, Tim McVeigh just happened to be
carrying literature -- literature that declared his intent.
And when arrested, Tim McVeigh just happened to have
traces of high explosives residue on his clothing, in his
pockets, and on his earplugs.
Actually, it did not all just happen. These were acts
committed intentionally, deliberately, with premeditation, all
part of the plan of Tim McVeigh and Terry Nichols to bomb the
Murrah Building and to kill the people inside.
These events that crescendo to April of 1995 really
began back in Kingman with the Fortiers. Michael Fortier
talked about having been to the VA hospital and coming home and
doing some rehab on his back; and as part of that rehab, he
would take a walk. And he took a walk with you in this
courtroom as he described the conversation, a very telling
conversation, about the relationship between him and what would
become his former friend.
In that walk, Michael Fortier says, Tim McVeigh told
me Terry is thinking about backing out. I need your help. He
remembers that. Michael Fortier said no. Michael Fortier said
no.
Michael Fortier was then asked by Tim McVeigh, Will
you at least drive me out to the desert after the bombing, so I
can hide?
Michael Fortier said no.
And then Tim McVeigh said that's all right. Terry
Nichols is in too deep to get out now. He'll do it. He'll do
it.
Well, by the time that McVeigh left Kingman, Arizona,
in April of 1995, Michael Fortier and Tim McVeigh were on very
different planes in very different places. Michael Fortier
wanted nothing to do with killing innocent people, and Tim
McVeigh wanted nothing more than to do just that.
In that final conversation, Tim McVeigh said, I
recognize what we have here. We're no longer friends. We're
taking separate paths in life. And that's what happened. Tim
McVeigh left Arizona in April of 1995, leaving behind a man who
had made clear his declaration: Political rhetoric? Maybe.
Murder? Never.
The last calls from Kingman, Arizona, signal exactly
where Tim McVeigh was headed. The last calls out of the
Imperial Motel, two calls that go to the same place: Terry
Nichols. That's where he was headed. Junction City, central
Kansas, back to the ingredients, back to his co-conspirator,
back to someone who would help.
The most important question in this case is whether
Tim McVeigh was a person who drove off with the bomb truck from
Elliott's Body Shop. Is Bob Kling Tim McVeigh? And the answer
is yes, in light of all the other evidence we've already
discussed and some that I'd like to discuss with you now. What
are the reasons to believe Bob Kling is Tim McVeigh?
First reason is Eldon Elliott. Eldon Elliott, you
recall, is the owner and the operator of this business in
Junction City. He's got the Ryder dealership, but the name of
the business is Elliott's Body Shop. He's a body shop guy.
That's what he does. He repairs cars.
He also has employees like Tom Kessinger and Vicki
Beemer that help him out in those duties, but he is a small
businessman. And no one would have predicted, certainly not
Eldon Elliott, how his life would change as a result of what
happened in Oklahoma City.
But it did, a change that came to a point of him
coming into this room, coming into this courtroom, and on the
witness stand pointing out Tim McVeigh as the person who came
in and rented the bomb truck. That's the man, Eldon Elliott
said, who I dealt with on two occasions in April of 1995 and
who drove off with my 20-foot Ryder truck, never to be seen
again, Unit 137328. That's the man.
The question that will face you about Eldon Elliott:
Is his identification reliable? Can you give it credit? What
weight do you give it? So you need to examine the evidence
surrounding that transaction to test those facts, questions
that were posed to many of you during the voir dire: What is
it that matters most in deciding whether someone has correctly
identified a person?
Well, remember the events of Saturday, April 15. This
is the day in a shop that was closed for all other business.
Eldon Elliott was alone. It was Saturday morning. There was
no other body shop business, no other customers. He was alone.
He described that to you.
And he remembers sitting there behind the counter
doing some business when Tim McVeigh walked in the door. You
saw the pictures. This is not a luxurious waiting area. This
is a small, compressed business, where the customer is
literally on top of the counter by the time they get through
the door. You saw the pictures. There's not much space that
separates the person doing the business from the customer.
Tim McVeigh walked up. He said, He walked up to the
counter and told me I'm here to reserve a truck, began a
conversation, a business conversation about the renting of the
truck.
Tim McVeigh said, My name is Bob Kling. That's how
Eldon Elliott remembered it. And he said, I called yesterday
or the day before, Friday, and spoke to Vicki -- he remembered
the name -- and reserved -- or got a quote, I should say, on a
20-foot Ryder truck. This was all conversation that they're
having between the two of them.
Mr. Elliott entered in the computer, pulled up the
record and, like McVeigh said, there is a Bob Kling quote here
for a 20-foot Ryder truck.
Elliott needed more information, and so he asked him
for a driver's license. And that's when Tim McVeigh produced
the Robert Kling driver's license, the one from South Dakota,
the one with an address in Redfield, South Dakota. And
Mr. Elliott had to take the time then to enter that
information. Some would say he's not a good speller, but he
entered information into his computer about this address maybe
Maple, in Redfield, South Dakota. That takes time. The
customer is waiting just a short distance away.
McVeigh is told, You need $80 to turn a quote into a
reservation. We can't fix or reserve or promise you this deal
or this truck unless we get 80 bucks up front.
McVeigh said, Let me pay you now while I still have
all the money. I mean, he remembered that conve
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