Defense in Nichols' bombing trial likely to rely on conspiracy theories, new twists

Associated Press/February 28, 2004
By Tim Talley

McAlester, Okla. -- Attorneys for Oklahoma City bombing conspirator Terry Nichols will try to keep him out of the state's death chamber by claiming he was the fall guy for a shadowy group of conspirators.

To make the point, they plan to call a rogue's gallery of witnesses including an inmate who spent time on death row with Timothy McVeigh and a member of a gang of white supremacist bank robbers.

Already serving time in federal prison, Nichols goes on trial Monday on state murder charges for the bombing that killed 168 people at the Alfred P. Murrah Federal Building on April 19, 1995.

Prosecutors allege that Nichols, 48, conspired with McVeigh to build the 4,000-pound bomb of ammonium nitrate and fuel oil in a twisted plot to avenge the FBI siege against the Branch Davidian sect at Waco, Texas, two years earlier.

At pretrial hearings, defense attorneys led by Brian Hermanson have focused on other potential suspects.

"Witnesses will be called to show that, while Mr. Nichols was at home in Kansas taking care of his family and building his business, Mr. McVeigh was actively recruiting and building a network of people who shared his violent hatred toward the federal government,'' according to a pretrial motion.

How much conspiracy evidence Nichols' jurors will see depends on District Judge Steven Taylor. Conspiracy testimony will be allowed only if defense attorneys prove that other suspects committed specific, overt acts to plan and execute the bombing.

Stephen Jones, an attorney who represented McVeigh, said Nichols' defense strategy will be difficult to implement.

"I think it is an uphill climb for Nichols to convince a jury,'' Jones said

However, the fact that Nichols was at home in Herington, Kan., when the bomb went off could make it harder for prosecutors to get the death penalty, said Andy Coates, a former prosecutor and dean of University of Oklahoma Law School.

"Certainly he wasn't the trigger man. He was one step removed, at least geographically, from what was going on,'' Coates said.

Nichols was convicted on charges of conspiracy and involuntary manslaughter for the deaths of eight federal agents in the bombing. He now faces 161 state murder charges for the other victims, plus an unborn child whose mother died in the explosion.

Defense witnesses will include David Paul Hammer, who is scheduled to be executed in June at a federal prison in Terre Haute, Ind., for the murder of a prison cellmate.

Hammer spent time with McVeigh on federal death row and claims McVeigh gave him the identity of coconspirators including John Doe 2, a mystery man some claim to have seen with McVeigh on the day of the bombing.

A member of a bank robbery gang connected with the Aryan Republican Army, a white supremacist group with anti-government views, also may testify. Peter Langan, serving life for a string of bank robberies in the 1990s, said in a phone interview with The Associated Press that at least three fellow gang members were in Oklahoma around the time of the bombing and one told him that they had become involved.

The Associated Press reported last week that FBI agents investigating those bank robberies collected witness statements and evidence that raised questions of whether the Aryan Republican Army might have assisted McVeigh's plot. But they did not share all the information with their colleagues in Oklahoma City.

The FBI responded Friday by asking its inspection division to review some of that evidence and determine if more needs to be done.

The defense also will try to discredit physical evidence in the case by pointing out problems in the FBI crime lab where the evidence was tested.

The trial could be complicated by publicity surrounding the case and Nichols' federal conviction, legal analysts said. The trial was moved from Oklahoma City to McAlester, about 130 miles away, because of pretrial publicity.

"The notion that an impartial jury can be found in the state of Oklahoma is almost an absurdity,'' said E. E. "Bo'' Edwards III of Nashville, Tenn., president of the National Association of Criminal Defense Lawyers.

Prosecutors will rely on volumes of circumstantial evidence linking Nichols to the bomb plot, Nichols' anti-government writings before the bombing and testimony from survivors and members of victims' families.

They will also allege that Nichols robbed an Arkansas gun dealer in November 1994 to help finance the plot a robbery defense attorneys believe was committed by the Aryan bank robbery gang.

The prosecution's star witness at Nichols' federal trial, Michael Fortier, will take the stand again to describe how McVeigh and Nichols detonated explosives in Arizona and experimented with ingredients that were later used in the bombing.

Fortier, serving a 12-year sentence for knowing about the bomb plot and not telling authorities, also will testify that Nichols was deeply involved in planning the bombing.