Judge: Inmate Can Speak at Nichols Trial

Associated Press/February 27, 2004

McAlester, Okla. -- A federal death row inmate who claims Timothy McVeigh told him others were involved in the Oklahoma City bombing can rebut the state's star witness at bombing conspirator Terry Nichols' trial, a judge ruled Thursday.

But Nichols' attorneys lost their bid to postpone the trial, scheduled to begin Monday. They had argued a delay was needed because of previously unknown FBI documents, recently obtained by The Associated Press, that raise the possibility that a gang of white supremacist bank robbers may have helped McVeigh.

Nichols, serving a life prison sentence on federal bombing convictions, is charged with 161 state counts of first-degree murder in the April 19, 1995, bombing, which killed 168. Prosecutors are seeking the death penalty.

The testimony of David Paul Hammer, a former Oklahoma prisoner scheduled to be executed in June at a federal prison in Terre Haute, Ind., will be allowed to rebut prosecution witness Michael Fortier, serving a 12-year sentence on bombing-related charges, District Judge Steven Taylor said.

Fortier, who testified at the federal trials of McVeigh and Nichols, is expected to testify that McVeigh told him Nichols was deeply involved in planning the bombing of the Alfred P. Murrah Federal Building.

Hammer spent time with McVeigh on federal death row before McVeigh was executed in 2001. Hammer claims McVeigh gave him the identities of coconspirators including John Doe 2, a mystery man some claim to have seen with McVeigh on the day of the bombing, defense attorney Mark Earnest said.

Nichols' attorneys contend Nichols was set up by unknown coconspirators involved with McVeigh in the plot to bomb the building.

Hammer's testimony was bitterly opposed by prosecutors, who described Hammer as "one of the least credible sources ever to serve time" in an Oklahoma prison. Assistant District Attorney Lou Keel said Hammer once threatened to kill him and a judge and blow up the Oklahoma County Courthouse.

Hammer is on federal death row for the 1996 murder of his cellmate, Andrew Marti, at the Allenwood Federal Penitentiary outside Williamsport, Pa.

Taylor denied a defense motion seeking to delay Nichols' trial because of previously unknown FBI documents described in an AP article Wednesday.

The documents show bank robbers with the Aryan Republican Army possessed explosive blasting caps similar to those McVeigh stole and a driver's license possibly stolen during the bombing plot.

The evidence was never shared with Oklahoma City investigators or defense lawyers. The FBI supervisor who ran the Oklahoma City investigation and the veteran agent who was in command at the bombing scene have said the new evidence is serious enough to warrant reopening the inquiry.

"All of this information is information that we should have had and which we haven't had," said Earnest, the defense lawyer.

State law requires prosecutors to turn over evidence that could be used to show a defendant's innocence to defense attorneys. Prosecutors said they have turned over everything they have.

Also Thursday, Taylor authorized Nichols' defense attorneys to question three death penalty opponents who lost family members in the bombing.

Taylor also revealed state prosecutors had issued a subpoena for additional documents about the bombing case. McVeigh's former lawyer, Stephen Jones, would not confirm the subpoena had been issued to him.

Nichols was sentenced to life in prison for the death of eight federal agents in the bombing. The state charges are for the 160 other victims and an unborn fetus whose mother was killed in the blast.

The trial was moved to McAlester, about 130 miles southeast of Oklahoma City, because of extensive pretrial publicity.