THE WEIGHT OF EVIDENCE

By JAMES COLLINS

When Timothy McVeigh enters the Denver courtroom of Judge Richard Matsch, he does not behave at all as you would expect, given the rigid, blank-faced image he projected at his arrest. He usually emerges from the holding cell for defendants with a big smile. Wearing a button-down shirt and khaki pants, his hands in his pockets, he struts toward the defense table. On his way, he makes eyes at female paralegals and chats with them. He nods and grins at the press and the prosecutors. McVeigh is accused of killing 168 people, 19 of them children; he may face the death penalty. But here he is, smiling and flirting, behaving like a guest on the Tonight Show. It's Timothy McVeigh as O.J. Simpson.

After a recess is called and McVeigh is escorted away, his smile vanishes as soon as he re-enters the detention cell. His face immediately sets itself into a neutral expression. If he is playacting, you have to wonder what he thinks that will accomplish. Surely, the circumstances of the case call for utmost gravity on the part of everyone involved. Perhaps McVeigh's behavior is part of his ongoing effort to show that he is just a regular guy, not a narrow-eyed fanatic. If so, he is defeating his own purpose: a regular guy would never act so glibly in this situation, nor would he be capable of such a pretense.

Last Saturday was the second anniversary of the explosion that destroyed the Alfred P. Murrah Federal Building in Oklahoma City. Sometime this summer, 12 men and women will try to answer the question of what Timothy McVeigh was doing at 9:02 a.m. on April 19, 1995. Jury selection began March 31, and a panel is expected to be seated this week, with opening statements perhaps being given on Thursday. The trial will take four or five months, if not longer--and as many as 500 witnesses may testify.

The Oklahoma City bombing is by far the worst terrorist attack in American history, and the pressure on prosecutors to win a conviction could not be greater. According to a new TIME/CNN poll, 83% of the public believes McVeigh is guilty, so if the jury acquits him, the prosecutors, led by Joseph Hartzler, a former Assistant U.S. Attorney from Illinois, will face a tumult of outrage. Last week their burden appeared to become even heavier when the Justice Department released a damning report on the FBI forensics lab. The report specifically criticized work done in the Oklahoma bombing case, saying that investigators had drawn unjustifiable conclusions and failed to follow proper procedures. Potential jurors may have heard about the report, although they are supposed to avoid any news about the trial, and that may offset the damage done to the defense last month when the press reported that McVeigh had "confessed" to his lawyers. Prosecutors have known about the likely contents of the report for months and have taken steps to minimize its effects, but the FBI's flawed lab work certainly damages their case. Indeed, there is a popular sense that law enforcers have yet to complete basic spadework: 76% of people polled last week said that all those responsible for the bombing have not yet been captured and identified. McVeigh's defense is likely to buttress similar feelings among jurors with a slew of stories from people who will tell tales at variance with the government's thesis of McVeigh the mastermind.

Despite this and other areas of vulnerability, the prosecution still has the clear advantage. A TIME investigation based on court records and sources knowledgeable about the trial suggests the prosecutors have reason to be confident. The circumstantial evidence builds a rich, sturdy narrative. It takes only one person with reasonable doubt to hang a jury, but right now, the chances that the prosecution will win a conviction are good.

HATE AND PARANOIA

The government may devote as many as two weeks to illustrate McVeigh's mental world. It is important for the prosecutors to make the jurors feel they know McVeigh, know he was capable of great evil and know he had the motive to perpetrate such evil. To do that, they will recount his life as they see it.

McVeigh and his two sisters grew up in Pendleton, a small town in upstate New York. His father was employed by a company that made radiators; his mother was a travel agent. According to All-American Monster, a biography of McVeigh by a local newspaper reporter named Brandon Stickney, McVeigh's parents were often absent--his father worked nights and his mother led an active social life in the bars and bowling alleys of the area. When McVeigh was 18, his parents divorced and his mother moved to Florida. High school records obtained by TIME indicate that McVeigh was a bright student, and according to some classmates, he was outgoing and talkative. As a boy, McVeigh told TIME last year, he had a love of guns that was abnormal even in a community that took its hunting seriously. He would bring weapons to school and spend hours alone shooting at targets.

In 1988 he joined the Army, serving as a tank gunner. He became close friends with Terry Nichols and Michael Fortier, but otherwise kept to himself. Comrades remember that he talked paranoically about the Federal Government and the threat that it would take guns away from American citizens. In the Gulf War he made two clean kills, once knocking an enemy soldier's head off his shoulders like a cue ball. McVeigh bragged often about that shot. Then, on the second day of a 21-day tryout for the Green Berets, McVeigh quit, and soon left the Army altogether.

He drifted, living in motels, visiting Fortier and Nichols. According to Stickney, McVeigh took methamphetamines, and he began to frequent gun shows. The prosecution hopes to show that during that period he became more and more bitter about the Federal Government. When the FBI raided the Branch Davidian compound on April 19, 1993, precisely two years before the Oklahoma bombing, McVeigh was outraged. In March of 1993, he made a pilgrimage to Waco that, by chance, another visitor recorded on video. Sources tell TIME that photographs show McVeigh near Waco handing out bumper stickers that asked, IS YOUR CHURCH ATF APPROVED?

Evidence of McVeigh's admiration for a novel called The Turner Diaries, published in 1978, will aid the prosecution's effort to portray him as a hate-filled radical. The book, a favorite of far-right groups, tells the story of a group of white supremacists who blow up FBI headquarters in Washington at 9:15 one morning--almost exactly the same time of the Oklahoma City bombing. The Turner Diaries oozes invective against blacks and Jews. "We have allowed a diabolically clever, alien minority to put chains on our souls and our minds," a passage reads. "Why didn't we roast them over bonfires at every street corner in America? Why didn't we make a final end to this obnoxious and eternally pushy clan, this pestilence from the sewers of the East...?"

McVeigh was such an eager evangelist for The Turner Diaries that he handed it out to friends and sold it at gun shows--often at a loss. The government will probably present testimony by Fortier and McVeigh's sister to confirm this zeal and may argue that McVeigh thought the book provided a model for how he might retaliate against the government for its Waco raid. For example, the bomb the narrator builds is, like the one used on the Murrah building, made out of ammonium nitrate mixed with heating oil and is loaded into a truck.

Letters and testimony by friends will show the defendant's growing paranoia about the government and his bitterness toward it. A revealing set of documents was found in the car McVeigh was driving when he was arrested after the bombing. One item is a commentary by John Locke, which McVeigh copied by hand, asserting that a man has a right to kill someone who would take away his liberty; another is a photocopy of a passage from The Turner Diaries that says the purpose of the fictional bombing was to wake up America.

CASING THE MURRAH

If prosecutors show that the destruction of the Murrah building followed logically from the workings of McVeigh's mind, they will have done part of their job, but a much more important task will remain--proving that he physically committed the crime. The government hopes to convince the jury of a basic narrative that runs like this: by the fall of 1994 McVeigh and Nichols had begun collecting the fertilizer and other materials necessary to make a large bomb. In December McVeigh and Fortier inspected the Murrah building, which McVeigh had chosen as the target. A few months later, on April 14, McVeigh registered at the Dreamland Motel in Junction City, Kansas. On the same day, he bought a 1977 Mercury and reserved a Ryder truck. He stayed at the motel for four nights and was seen coming and going in a truck. During that period, he and Nichols constructed the bomb. In the meantime, McVeigh parked the Mercury near the Murrah building, and Nichols took him back to the Dreamland. On the morning of April 19, McVeigh drove the truck to the building and detonated the bomb at 9:02 a.m. He raced to the Mercury and headed out of town on the Interstate.

An hour and a half later, a state trooper stopped McVeigh near Perry, Oklahoma, because his car had no rear license plate. The trooper saw he had a gun and arrested him. Using the vehicle-identification number on the Ryder truck's axle, which survived the blast, the FBI learned from Ryder which location the truck had been rented from. Descriptions of McVeigh by two people at the rental office were the basis of a sketch that agents showed to motel desk clerks in the area. The owner of the Dreamland recognized McVeigh and gave his name. Federal agents ran it through a national-crime database and discovered that McVeigh was in jail in Perry. Just before he was about to be released, the FBI called and had him held.

The prosecutors will try to present evidence that supports this narrative at each of its crucial points. At present, however, they apparently have no plans to call any witnesses who will testify to seeing McVeigh at the Murrah building at the time of the bombing. While several people have made a statement to that effect, the FBI maintains that they are not reliable, according to sources close to the case. Not everyone agrees that these accounts should be dismissed, however (see box). One person insisted vehemently to TIME that he had never changed his story, contrary to what FBI sources had maintained. If the statements were reliable, the government still might have an interest in declining to present such testimony. These individuals have said they saw McVeigh with other men, and to allow mention of unknown, at-large accomplices might raise the possibility that someone else had actually set off the bomb, muddying the prosecution's case.

THE RYDER TRUCK

The prosecution's other evidence seems strong enough that the lack of eyewitnesses may not matter much. Take the Ryder truck. No one disputes that it was used to carry the explosives--the prosecution will introduce a panel embedded with ammonium-nitrate crystals--or that it came from Elliott's Body Shop in Junction City, Kansas. The crucial matter is tying the truck to McVeigh.

The prosecution will call Eldon Elliott, the owner of Elliott's Body Shop, a Ryder outlet in Junction City, and he will testify that a man calling himself "Robert Kling" prepaid for the truck on April 15, 1995 and picked it up on April 17. Elliott will identify "Kling" as McVeigh. Elliott will also say that in filling out the rental agreement, McVeigh used a South Dakota driver's license. Lori Fortier, Michael's wife, will testify that she made the license for McVeigh. An employee at Elliott's, Vicki Beemer, may also be called; she says she spoke to McVeigh on the 14th, when he called to reserve the truck, and saw him when he came into the shop.

According to Beemer, the phone call came at around 10:30 a.m., and there is reason to believe McVeigh made it. At around that time, he was at a Firestone tire store in Junction City, buying the Mercury from Tom Manning, the store's manager (McVeigh traded in his dilapidated Pontiac). Manning has stated that McVeigh left the store for a few minutes while they were making the deal. Records show that at 9:53 a call to Elliott's was placed from a pay phone across from the Firestone store. Another piece of evidence shows that McVeigh was near Elliott's shortly before the truck was picked up--a security camera recorded McVeigh at a McDonald's a mile from the shop.

Lea McGown, the proprietor of the Dreamland Motel, also in Junction City, is another witness who links McVeigh to a Ryder truck. On April 14, McVeigh showed up at the Dreamland and registered under his own name. It is a mystery why, after previously using aliases, McVeigh would have chosen this moment not to hide his identity. McGown has a theory, though. In a recent interview with author Gerald Posner, she said in her years managing a motel frequented by prostitutes, she learned how to spot men registering under false names. "People are so used to signing their own name," she said, "that when they go to sign a phony name, they almost always go to write, and then look up for a moment as if to remember the new name they want to use. That's what [McVeigh] did, and when he looked up I started talking to him, and it threw him."

McGown has said she saw McVeigh drive a Ryder truck into the Dreamland parking lot on April 17. At around 4 a.m. on April 18, McGown recalled, she saw McVeigh sitting in the cab of the truck with the light on. However, her testimony could have a complication to it--she has also said she saw McVeigh in a Ryder truck on the 16th, and that this one looked different from the one he drove on the 17th. Prosecutors may also call McGown's son Eric, who has said he saw McVeigh and the truck. According to Eric, when McVeigh was driving the truck on April 18, he was going very slowly.

Nichols owned a home in Herington, Kansas, about 20 miles south of Junction City. The prosecution contends that on April 16 McVeigh parked his Mercury in Oklahoma City and then Nichols drove him back to the Dreamland. Several people saw the car parked near the Murrah building before the bombing. Prosecutors will introduce a handwritten note McVeigh left on the car saying it had a bad battery, ensuring that no one would tow it.

No witness at the Dreamland saw McVeigh leave with the truck for good, but Fred Skrdla will be called to testify that between 1 a.m. and 3 a.m. on the day of the bombing, he saw McVeigh drive it into gas station where Skrdla worked. That was in Billings, Oklahoma, about two-thirds of the way between Junction City and Oklahoma City.

MAKINGS OF A BOMB

Having established that McVeigh was in possession of the truck, the prosecution will seek to reinforce its case by establishing that McVeigh was also in possession of a bomb. The most direct way to do that will be to call an FBI expert who will testify that McVeigh's clothing, tested after his arrest, showed traces of nitroglycerin and pentaerythritol tetranitrate, or petn, an explosive used in detonator cord. Prosecutors will also present evidence to show how, in the months before the bomb exploded, McVeigh set out to gather materials for it.

Glynn Tipton, for example, is expected to testify that he talked with McVeigh at a drag race in Topeka, Kansas, and that McVeigh was seeking two bombmaking chemicals. Frederick Alan Schlender, the manager of the Mid-Kansas Coop in McPherson, Kansas, will testify that on Sept. 30, 1994, someone closely resembling Nichols bought 40 bags of ammonium nitrate, weighing 50 lbs. apiece. On Oct. 18, Schlender has said, he bought another 50 lbs. During a pretrial hearing in February, Schlender testified that the man "said he was a wheat farmer. It was an unusual transaction. It wasn't common for someone to buy a ton of ammonium nitrate." When FBI agents searched Nichols' home in Herington, they found a receipt for one of the purchases; it had McVeigh's fingerprint on it.

Phone records will show that McVeigh, Nichols and Fortier made hundreds of calls around the country to various establishments that sold fertilizer, chemicals, explosives, remote-control switches, racing fuel and 55-gal. plastic drums. Many of these calls were charged to a prepaid phone card issued in the name of Daryl Bridges by the Spotlight, a far-right publication. The FBI maintains this card was actually used by McVeigh and Nichols. McVeigh allegedly used the card to call Nichols to pick him up in Oklahoma City. Agents have documented McVeigh's and Nichols' travels, and many of the calls charged to the phone card were placed from hotels and motels where they were staying. Thirty or more experts from telephone companies are likely to testify.

Michael Fortier, prosecutors hope, will fill in the colors of the picture they have drawn. He will provide the vivid, firsthand account of McVeigh, the friend he asked to be best man at his wedding. He can describe McVeigh's visits to Kingman, Arizona, where Fortier lived and where McVeigh spent the weeks before the bombing. Most crucially, Fortier can say that on Dec. 15 and 16, 1994, he and McVeigh were in Oklahoma City, where they walked around inside the Murrah building (in which Christmas decorations adorned the day-care center). According to Fortier, McVeigh said this was the building he was going to bomb. Sources tell TIME that the government has proof that Fortier was not at the scene of the bombing, as some have theorized.

THE DEFENSE

How will Stephen Jones, McVeigh's lead attorney, counterattack? First of all, he will use any evidence pointing to unidentified accomplices to argue that the real culprits are still at large. He will also try to suggest the bombing was the result of a worldwide conspiracy to which McVeigh was only tangentially associated, if at all. Jones has sent investigators to Europe, the Middle East and Asia. For months, he has talked about a German named Andreas Strassmeir, who met McVeigh in 1993; about Richard Snell, a white supremacist who was executed April 19, 1995; and about Ramzi Ahmed Yousef, the man accused of organizing the World Trade Center bombing, who was in the Philippines at the same time as Nichols (Nichols' second wife is a Philippine mail-order bride).

The defense has a better hope of creating reasonable doubt by addressing specific aspects of the prosecution's case. Most important, Jones will be able to excoriate the FBI's forensics lab. The critical Justice Department report concludes, for example, that an investigator in the Oklahoma City case lacked an adequate scientific basis for stating that the bomb was made out of ammonium nitrate mixed with fuel oil. Ammonium nitrate was found at the scene, but the bomb could have been made out of another explosive that contains it, such as dynamite. The report says the investigator reached his conclusion in part by reasoning backward from the fact that a receipt for ammonium nitrate fertilizer had been found at Nichols' house. In fact, while the evidence is consistent with an ammonium nitrate and fuel oil bomb, it does not exclude other possibilities. The report also leaves open the question of whether McVeigh's clothing might have been contaminated with nitroglycerin and petn in the lab. Jones will hammer away on these points. He will call Frederic Whitehurst, the whistle blower who brought about the lab investigation, and Jones will also try to have the report itself admitted into evidence.

Prosecutors have anticipated the report, and have long planned to avoid calling anyone tainted by it. Late last year they hired a British expert, Linda Jones, to confirm the lab's findings. The only witness the government would call from the lab itself is Steven Burmeister. He is treated neutrally in the part of the report that deals with the Oklahoma City bomb and is praised in other sections. He found the nitroglycerin and petn on McVeigh's clothes, and he can testify that they were never in the two sections of the lab where contamination was found. Whitehurst, meanwhile, is harshly criticized in the report. Yet even if the prosecution is right on the merits in this dispute, the lab's shortcomings will give Stephen Jones priceless rhetorical opportunities.

Jones can also exploit the prosecution's failure to present witnesses who put McVeigh at the scene. Jones can simply say his client wasn't there. He can also ridicule the prosecution for its inability to present any witnesses who saw McVeigh and Nichols constructing the bomb, which would have involved hauling around two tons of fertilizer. This remains a hole in the prosecutors' story. They have dropped some witnesses who would have testified on the matter, and somehow, they will have to convince the jury that McVeigh and Nichols were so surreptitious they escaped detection.

After the bombing, Elliott first said that McVeigh was alone when he rented the truck, but then, the next day, Elliott said McVeigh had actually come with someone else--the famous John Doe No. 2; Beemer has said she remembers two men. The prosecution now maintains that McVeigh was by himself. Jones will try to use this confusion over John Doe No. 2 to question the accuracy of Elliott and Beemer's memories. (The prosecution probably will not even call Tom Kessinger, another employee at Elliott's whose statements about John Doe No. 2 have been the most sensational, and the most inconsistent).

Fortier, meanwhile, can expect that Jones will try to obliterate him on cross-examination. Jones has grounds to attack his credibility: Fortier has changed his story several times, and he is testifying for the prosecution as part of a plea-bargaining deal. As for The Turner Diaries, McVeigh's visit to Waco and other evidence about McVeigh's opinions, Jones will argue that none of it proves his client blew up the Murrah building.

Jones may be flamboyant, but he is also smart. He has already won two important victories, by getting the venue for the trial moved out of Oklahoma and by convincing Judge Matsch that McVeigh should be tried separately from Nichols. It was the first time the judge had ever agreed to sever the cases of two defendants. "Stephen Jones is a ferociously intelligent trial lawyer," says Mimi Wesson, a professor of criminal law at the University of Colorado and a former U.S. Attorney in Denver from 1980 to 1982. "I have read some of his briefs in the McVeigh case, and there is some very fine legal work."

This is a grim epic under way in Denver. Officially, the case is called United States of America v. Timothy James McVeigh, and never has such an appellation been more fitting. The entire country truly seems to be the plaintiff, while the defendant, if the descriptions of him are fair, apparently sees the world as Timothy James McVeigh vs. the United States of America. The nation has mourned for two years. Come the summer, it will discover if it has brought the perpetrator of the horrors of Oklahoma to justice.

--Reported by Patrick E. Cole/Denver and Elaine Shannon/Washington

With reporting by PATRICK E. COLE/DENVER AND ELAINE SHANNON/WASHINGTON