Defense attorneys face daunting task at Terry Nichols' state murder trial

Monday, May 3rd 2004, 12:00 am

By: News On 6

McALESTER, Okla. (AP) -- Oklahoma prosecutors have wrapped up their case against bombing conspirator Terry Nichols -- 29 days of gruesome descriptions, some tearful witness testimony and more than 1,000 pieces of evidence.

That leaves Nichols' defense attorneys with the daunting task of countering a formidable circumstantial case the state contends links Nichols to the federal building bombing and the horrific deaths of its 168 victims.

Nichols' lawyers are scheduled to begin questioning an estimated 200 defense witnesses on Thursday. They will try to make the case that if Nichols was involved in the bomb plot, it was only marginal, according to attorneys familiar with the case.

The jury has already heard testimony that Nichols was trying to withdraw from the conspiracy, said Michael McGuire, who represents the prosecution's star witness, Michael Fortier.

Over three days of testimony, Fortier said executed bomber Timothy McVeigh tried to recruit him because "Terry was backing out."

"There's a question whether or not his (Nichols) intent was the same as McVeigh," McGuire said. Fortier was sentenced to 12 years in prison after pleading guilty to knowing about the bomb plot and not telling authorities.

Presiding Judge Steven Taylor limited evidence of alternative suspects in a ruling that said there was no substance to allegations McVeigh had links to a gang of white supremacist bank robbers and residents of Elohim City, a separatist enclave in eastern Oklahoma.

Defense attorney Stephen Jones, who defended McVeigh at his federal bombing trial, said the ruling blocked defense plans to present evidence of alternative suspects but may have helped them refine their case.

"It may have persuaded them to rethink the defense and come up with another alternative explanation," Jones said.

Jurors may still hear suggestions of another conspirator through witness accounts of the so-called John Doe No. 2, who dozen of people said they saw with McVeigh in the days and weeks preceding the bombing.

The panelists may also hear grisly testimony about the discovery of a dismembered leg in the federal building's rubble that Nichols' defense attorneys may suggest are the remains of an unknown co-conspirator.

Defense attorneys will try to capitalize on weaknesses in the prosecution's case that resulted in Nichols' acquittal on federal murder charges at his 1997 federal bombing trial, Jones said.

Whatever the defense case, it has to be believable to Nichols' jury, Jones said.

"The risk for the defense is to put on a case that is not credible. It has to be a plausible alternative explanation," he said.

Nichols, 49, was convicted of involuntary manslaughter and conspiracy charges in the deaths of eight law enforcement agents in the April 19, 1995, bombing. He was sentenced to life in prison.

In Oklahoma, Nichols is charged with 161 counts of first-degree murder for the deaths of the other 160 victims and one victims' fetus. Prosecutors are seeking the death penalty.

McVeigh was found guilty on federal murder and conspiracy charges. He was executed in June 2001.

Jones said the state's case against Nichols is substantially the same as the federal government's bombing cases, but there are major differences.

State prosecutors limited graphic descriptions of the carnage caused by the bombing out of concern that an appellate court might accuse them of inflaming jurors.

"Any conviction will ultimately be reviewed by a federal court anyway," Jones said.

But medical examiners provided jurors with detailed diagrams and descriptions of victims' injuries, including decapitations and amputated arms, legs, feet and hands.

Kevin Van Ess, whose father, John Karl Van Ess III, was killed in the bombing, said learning the details of her father's death was heartbreaking.

"I had seen the report. I had seen the basics," she said. "But to have someone explain the basics, it's difficult."

In spite of the differences, Jones said the prosecution's theory remains the same.

Prosecutors alleged that McVeigh and Nichols, who became friends in the Army, plotted the bombing to avenge the deaths of 81 people in a federal raid on the Branch Davidian compound near Waco, Texas, on April 19, 1993 -- exactly two years before the bombing.

They began acquiring the key ingredients for the bomb -- 4,000 pounds of ammonium nitrate fertilizer, racing fuel and explosives -- seven months before the blast.

They met at a fishing park near Junction City, Kan., to pack the bomb inside a Ryder rental truck on April 18, 1995. But when McVeigh detonated the bomb the next day, Nichols was at home with his family in Herington, Kan.

There are no witnesses who can identify Nichols as the man who bought fertilizer, stole explosives or robbed a gun collector to finance the bomb plot.

But FBI investigators found a Sept. 30, 1994, receipt for the purchase of 2,000 pounds of fertilizer as well as weapons and explosives like those used in the bombing during a search of Nichols' home three days after the bombing.