Key hearing looms for Oklahoma City bombing conspirator Terry Nichols

<br>OKLAHOMA CITY (AP) _ More than eight years after the Oklahoma City bombing, prosecutors hope to persuade a judge to put jailed conspirator Terry Nichols on trial for 160 state murder charges that could

Friday, May 2nd 2003, 12:00 am

By: News On 6

OKLAHOMA CITY (AP) _ More than eight years after the Oklahoma City bombing, prosecutors hope to persuade a judge to put jailed conspirator Terry Nichols on trial for 160 state murder charges that could bring the death penalty.

Nichols, 48, is already in federal prison serving life without parole, but prosecutors want a state conviction in hopes of sending him to the death chamber. They want to eliminate the possibility that he could ever successfully appeal his federal case and gain freedom.

A judge has already ruled that double-jeopardy protections do not apply in the case. The preliminary hearing begins Monday to determine whether there is enough evidence to bring Nichols to trial.

The hearing could be complicated by revelations, first reported by The Associated Press, that the Justice Department received a letter before the 2001 execution of Oklahoma City bomber Timothy McVeigh suggesting a key prosecution witness against McVeigh had given false testimony.

The letter cites testimony in a civil case from Steven Burmeister, now the FBI lab's chief of scientific analysis. The testimony contradicted what he said in the McVeigh case about key evidence regarding chemical residue of material used in making the bomb.

Justice Department officials have said they don't believe making the letter available would have affected the outcome of McVeigh's trial.

Prosecutors have removed Burmeister from the list of 32 witnesses they plan to call during Nichols' preliminary hearing, said Sandra Howell-Elliott, assistant Oklahoma County district attorney.

The state case against Nichols could also be hampered by some of the same legal issues that have delayed the hearing seven times since he was brought to Oklahoma from a federal prison in Colorado in January 2000. Among the hurdles are evidence issues and the difficulty in seating an impartial jury.

``I expect it will be long and drawn out, exhaustive and costly,'' said attorney Stephen Jones, who defended McVeigh.

Authorities say the April 19, 1995, bombing was a twisted plot to avenge the FBI siege at Waco, Texas, exactly two years earlier. McVeigh and Nichols worked side by side preparing the 4,000-pound fuel-and-fertilizer bomb that destroyed the Alfred P. Murrah Federal Building, killing 168 people.

Nichols was at home in Herington, Kan., the day the bomb exploded. But prosecutors accused him of helping McVeigh deliver a getaway car to Oklahoma City and of working with McVeigh to pack the bomb inside a Ryder truck on the day before.

Prosecutors are expected to introduce telephone records, receipts and other evidence to show that Nichols used an alias to buy two tons of fertilizer and helped McVeigh steal explosives from a rock quarry.

The district attorney's office also has an agreement with Michael Fortier, the star prosecution witness in the federal trials, to testify in the state case under immunity. Fortier is serving a 12-year sentence for failing to notify authorities of the bomb plot.

Nichols was convicted of conspiracy and involuntary manslaughter charges for the deaths of eight federal law enforcement officers in the bombing. The state charges involve victims who were not part of the federal prosecution.

The federal trials were moved to Denver after U.S. District Judge Richard Matsch ruled that McVeigh and Nichols had been ``demonized'' by intense media coverage in Oklahoma.

This same issue could hurt a state prosecution of Nichols, said Andy Coates, dean of the University of Oklahoma Law School and a former prosecutor.

``Getting a death penalty sentence that will stand up under state and federal scrutiny is very remote,'' he said.

No state murder charges were filed against McVeigh. Larry Posner, past president of the National Association of Criminal Defense Lawyers, said state prosecutors filed murder charges against Nichols because they were disappointed he was not sentenced to death.

``This is politics at its worst,'' Posner said.

Diane Leonard, whose husband, Secret Service agent Donald R. Leonard, died in the bombing, said she believes the $2.5 million state prosecutors have spent in prosecuting the case has been a good investment.

``We're dealing with a terrorist,'' Leonard said. ``Our state needs to send a message that terrorism will not be tolerated here.''

Others, including Bud Welch, whose daughter, 23-year-old Julie Marie Welch, was killed, don't favor further prosecution of Nichols.

``Revenge and hate will destroy you,'' he said. ``I know. I've been there. It's been over eight years. It's time to let people move on with their lives.''