THE BURDEN OF PROOF

By JAMES COLLINS

When Joseph Hartzler, the lead prosecutor in the Oklahoma City bombing case, made his opening statement to the jury last month, he began with a story of two little boys. Just before 8 o'clock on April 19, 1995, Tevin Garrett's mother dropped him off at the day-care center in the Alfred P. Murrah Federal Building. "Tevin, as so often happens," Hartzler said, "cried and clung to her." A two-year-old friend of Tevin's, Elijah Coverdale, was moved to sympathy. "Elijah," Hartzler continued, "came up to Tevin and patted him on the back, and comforted him as his mother left." An hour later, the bomb exploded, and both children were killed.

From the moment he described the kind gesture of little Elijah Coverdale, Hartzler and his team have held the courtroom rapt, mixing sentiment with a crisp presentation of damning evidence. When he rests his case early this week, Hartzler will be able to look back on a prosecution that has performed almost without flaw. McVeigh's friend Michael Fortier, the government's key witness, testified convincingly that McVeigh planned the bombing; the witness who says he rented McVeigh the Ryder truck used in the bombing identified him without hesitation; the technical testimony has been pithy. There have also been some surprises--like the ignition key to the truck that was found near the spot where McVeigh allegedly stashed his getaway car. All the while, the prosecutors have created drama and pathos by interspersing testimony from victims of the bombing.

"They have been fabulous," says John Coyle, who was one of McVeigh's first lawyers and who has been watching the trial. "They're brilliant. I've never seen a prosecution put on as well as this one."

The effort has not made an impression on the public. Since the trial is not televised, McVeigh is more like an evil cipher, and the proceedings have not been the talk of lunchrooms across America. "Some people follow it," says Everett White, 55, of Pueblo, Colo. "You see it in the papers, but it's not like that other one, with...what's his name?" As for McVeigh's guilt, says Mark Collins, city manager of Gunnison, Colo.: "Jeez, you think there's a question there?"

While McVeigh's lead attorney, Stephen Jones, has rattled some of the prosecution witnesses, he has failed to undermine them. Often his team appear unprepared. If that weren't enough, sources tell TIME that Jones may be about to suffer a blow from Judge Richard Matsch. For months, Jones has said the bombing may have been the result of an international conspiracy. To gather evidence, Jones sent investigators to the Middle East and Asia. Now, these sources say, Matsch may decide not to permit the defense to call witnesses who would testify about the alleged plot. Apparently Jones has not convinced Matsch that his theory is plausible enough to merit consideration by the jury. The government is paying for McVeigh's defense, and with the cost of these investigations, which were approved by Matsch, added to expenses and lawyers' fees (at a maximum of $125 an hour), Jones will have spent nearly $10 million by the end of the trial.

Jones is an intelligent, wily lawyer, and he has a strategy: to convince the jury that the the infamous John Doe No. 2 is still at large and may really have been the one responsible for the bombing. The prosecution presented no witnesses who testified to seeing the bomb being constructed, nor did it call anyone who placed McVeigh at the crime scene. Several people, though, have made statements to the FBI that they saw a man resembling John Doe No. 2 with McVeigh in the days before the bombing. So Jones does have an opening. But can he exploit it in a contest with a prosecution that has operated as smoothly and powerfully as Deep Blue?

Hartzler's skills were well displayed in his handling of Michael Fortier. All along Fortier was going to be a problematic witness. After McVeigh's arrest, he had lied repeatedly; he had bragged in telephone calls--taped by the FBI--about how he was going to make money off the case; and he was generally an unsavory character, unemployed and an admitted drug abuser. When he showed up in court, though, he looked very different from the way he did two years ago. His hair was cut; his face was clean-shaven; his ears were without earrings. He wore a suit and tie and answered questions "Yes, sir" or "No, sir."

This kind of makeover of an unsympathetic witness is standard, but Fortier had been groomed in other ways. Hartzler spent 100 hours preparing him for his time on the stand. As a result, Fortier responded forthrightly to Hartzler's questions, and to Jones' too. He described how McVeigh served as best man at his wedding, held at a Las Vegas casino in July 1994. Soon afterward, Fortier said, McVeigh began to talk about taking "positive, offensive action" against the government. A plan began to take shape. By October, McVeigh and Terry Nichols had chosen a target: the federal building in Oklahoma City. (Nichols, the other person charged in the bombing, will be tried after McVeigh.) McVeigh wanted "to cause a general uprising in America," Fortier said. The government workers "may be individually innocent, but because they were part of the evil empire, they were guilty by association."

Fortier's testimony provided details about McVeigh's preparations that had never been heard before. He said, for example, that when he and McVeigh traveled to Oklahoma City from Arizona in December 1994 to case the Murrah building, McVeigh saw a Ryder truck on the road, pointed at it and said it was the kind of truck he wanted to use in the bombing. Fortier also said that McVeigh considered a suicide mission, driving the truck into the building and remaining at the wheel when it exploded. Then came the strangest moment of the trial, when Fortier remarked, "If you don't consider what happened in Oklahoma, Tim was a good person."

Hartzler's questioning was so effective that Matsch instructed the jurors to keep an open mind during the cross-examination. When his turn came, Jones went after Fortier using transcripts of the telephone calls the FBI had taped. "[D]idn't you say, 'I want to wait until after the trial and do a book and movie rights...Something that's worth the Enquirer?'...You talked about a million dollars, and it just rolled off your tongue, didn't it?" Fortier quietly answered, "Yes." Sarcastic and sneering, Jones made cracks in Fortier's character, but he did not shake the witness on any matter of substance.

Two other people close to McVeigh testified for the prosecution. One was Lori Fortier, Michael's wife, who described how McVeigh used soup cans to illustrate how he would arrange the barrels of explosives in the truck. She also testified that she helped make a false driver's license for McVeigh in the name of Robert Kling, the name the prosecution says McVeigh used when he rented the Ryder truck. McVeigh's sister Jennifer corroborated the accounts of other witnesses who said that McVeigh harbored a deep hatred of the Federal Government and believed it had not atoned for its 1993 attack on the Branch Davidians in Waco, Texas. In their last conversation before the bombing, Tim told Jennifer that he had moved from the "propaganda stage" to the "action stage." Jennifer also said that Tim had described in November 1994 how he had nearly been in an accident with up to 1,000 pounds of explosives in his car.

In other key testimony, Eldon Elliott, the owner of Elliott's Body Shop in Junction City, Kans., pointed out McVeigh as the man who rented the Ryder truck from him. Dealers in fertilizer, racing fuel and other possible ingredients in the bomb testified that McVeigh had approached them trying to buy these products in very large quantities. Finally, Eric McGown, who worked at the Dreamland Motel in Junction City, the place McVeigh stayed in the days before the bombing, testified that he had seen McVeigh in a Ryder truck in the motel's parking lot.

Jones had his best moments cross-examining McGown. The truck was picked up on April 17, 1995, but McGown could not remember whether he had seen it that day or the day before, Easter Sunday. Obviously, if McGown saw the truck on April 16, it could not have been the same truck McVeigh is said to have rented. Nineteen years old, McGown became incoherent and stammered as Jones bore in on him.

This was not the only weak moment for the prosecution. Testimony about a phone card supposedly used by McVeigh was inconclusive. On April 16 a security camera near the Murrah building recorded a 1984 GMC truck driving by, and since Nichols owned a GMC truck of the same year, the government tried to use the video to corroborate its theory that he picked up McVeigh that night, after he parked his getaway car. But the defense easily popped this balloon, pointing out that dozens of people in the area might own such trucks. The FBI did not find McVeigh's fingerprints on the truck rental agreement, the ignition key or other pieces of evidence (although an expert testified that this was not unusual). This week prosecutors have the delicate task of introducing evidence from the FBI forensics lab, which has been excoriated in a recent Justice Department report.

Still, the hole Jones and McVeigh must climb out of is very deep. Prosecutors will call a scientist from the lab who was praised in the report and so limit the damage on that score, while presenting evidence that the clothing McVeigh wore on the day of his arrest carried the residue of explosives. If the jury is convinced of this, the hole will seem bottomless.

Jones will turn to his last hope--John Doe No. 2. He was a man who employees at Elliott's Body Shop said had accompanied McVeigh. The FBI sought him for months, but eventually concluded that the character was a mix-up with a soldier who visited the shop the day after McVeigh. But some doubt has always lingered over this identification. Several people have said they saw a man resembling John Doe No. 2 with McVeigh at the Dreamland. No one saw McVeigh make the bomb or set it off, so someone else could have been responsible. Jones will ask the jurors how they can be sure McVeigh is guilty, with no eyewitnesses and John Doe No. 2 at large. If someone else is responsible, McVeigh does not deserve the full punishment of the law.

According to sources familiar with the defense, one woman Jones will call is Hilda Sostre, a maid at the Dreamland. In statements to the FBI obtained by TIME, she said that three days before the bombing, she saw a Hispanic man at the motel. He was in his late 20s and had a medium build, straight black hair and a large, round head. When FBI agents showed her a sketch of John Doe No. 2, Sostre said, "My God, who did the sketch? It looks just like him."

Jones will probably also call Donald Lee Hood. In his statements to the FBI, also obtained by TIME, he said that on April 17 he saw McVeigh in the Ryder truck with a man who had short brown hair and who was in his early 20s, stood about 5 ft. 10 in. and weighed 170 lbs. When Hood was shown the sketch of John Doe No. 2, he said it looked identical to the man he had seen with McVeigh. Still another probable defense witness is Connie Marie Hood, who told the FBI that on April 14 she saw a man resembling John Doe No. 2 open the door of a room at the Dreamland and stick his head out. On April 16, she said, she saw someone who may have been the same man standing by a Ryder truck.

Then there is Dana Bradley, a bombing victim whose leg had to be amputated during her rescue. She claims that she was looking out the window of the Murrah building on April 19 and saw a Ryder truck pull up. A burly, Hispanic-looking man, she says, got out--not a tall, thin, man with a reddish buzz cut. Putting the testimony of the Dreamland witnesses and Bradley together, Jones will argue that the government has failed to apprehend the man who may really have done the deed. As for McVeigh, sources familiar with the defense say he has repeatedly told his lawyers he would like to testify; they are assessing the risk of his doing so, but it is not likely.

The prosecution can counter the defense by raising doubts about these witnesses' accounts and saying that Jones wants the jurors to convict a chimera, while before them they see a flesh-and-blood person whose best friend says he planned the bombing, who had the state of mind to carry it out, has been linked to the Ryder truck and had traces of explosives on his clothes. Jones' strategy has a ghost of a chance, but it's just that--a ghost.

--Reported by Patrick E. Cole/Denver

With reporting by PATRICK E. COLE/DENVER