Fortier's lawyer accuses judge of vindictive sentencing

Wednesday, May 3rd 2000, 12:00 am

By: News On 6

DENVER (AP) -- The attorney for Michael Fortier says the judge who handled Fortier's sentence was vindictive when he ordered a 12-year sentence after the first sentence was tossed out.

Attorney Michael G. McGuire made his arguments in a brief filed Tuesday with the 10th U.S. Circuit Court of Appeals. He said U.S. District Judge Thomas Van Bebber showed "a deliberate effort to achieve a punitive level" by sentencing Fortier to 12 years for a second time.

"The fact that the district court imposed the same term with the same logic he did in the first sentence only underscores tha the was determined to reach a certain level, with one theory or another," McGuire wrote in his brief.

Van Bebber, of Kansas City, Kan., sentenced Fortier to 12 years in prison and fined him $200,000 in May 1998. Fortier appealed the sentence and the appeals court in Denver sent the case back to Van Bebber, saying he mistakenly used guidelines for first-degree murder rather than manslaughter.

When Fortier was resentenced in October, Van Bebber concluded that he could impose a sentence longer than the specified guidelines because of the magnitude of the April 19, 1995, bombing.

Fortier's friend, Timothy McVeigh, was convicted on federal murder charges for the bombing and sentenced to death. Terry Nichols was sentenced to life in prison without parole after being convicted of conspiracy and involuntary manslaughter.

McGuire said Fortier's position was harmed during the resentencing because Van Bebber suddenly reversed his decision not to allow witnesses at the start of the resentencing hearing. By that time it was too late because the defense was not prepared and one of the potential witnesses was out of state.

McGuire said Fortier's case could have been helped by having his wife or a retired FBI agent testify. He also said the government refused to credit Fortier's cooperation in the Nichols' case.

"It's all right to disconnect with Michael Fortier; they don't need him anymore. Shedding any light on any of the sentencing issues is not wanted at this point. It's all about retribution, and Michael Fortier was the only one left to punish," McGuire said.

He also argued that it was not "appropriate" for Van Bebber to conduct exclusive interviews with The Daily Oklahoman newspaper, which he said has been the voice of the victims of the Oklahoma City tragedy.

In the resentencing, Van Bebber reduced Fortier's original fine from $200,000 to $75,000. The reduced fine is not being appealed.