THE MERITS OF THE CASE

By JAMES COLLINS

Where was Timothy McVeigh on the morning of April 19, 1995? When Stephen Jones, the lead defense attorney in the Oklahoma City bombing case, said in his opening statement that he would prove his client "innocent," he in effect promised the jury he would answer that question. But when the defense rested last week--after calling only 25 witnesses in 3 1/2 days--he had not done so. That failure reflected Jones' fundamental dilemma: he could not offer a story about McVeigh that was an alternative to the one brilliantly told by the government. Of course, the defense in a criminal trial does not have to prove anything, but in this case Jones probably would have had to fulfill his promise in order to win. How could he, though, if McVeigh lacked even the shadow of an alibi?

The bomb that exploded in front of the Alfred P. Murrah Federal Building two years ago killed 168 people, 19 of them children. Last Friday the decision about whether or not Timothy McVeigh was responsible for the crime was placed in the hands of the jurors, who were to be sequestered until they reached a verdict. If they found McVeigh guilty on any one of the 11 murder and conspiracy counts against him, he could face the death penalty. Juries are notoriously unpredictable, but given the thinness of the defense and the strength of the prosecution, an acquittal would be a major surprise. According to a source close to the defense, as the case went to the jury, McVeigh was expecting the worst.

The government set out to prove the following: that McVeigh harbored a deep hatred of the Federal Government, that he had spent months acquiring materials for the bomb and planning the attack, that he was the one who rented the Ryder truck used in the bombing, and that traces of explosives were found on his clothes, knife and earplugs when he was arrested. The case was not airtight--no one testified to seeing McVeigh make the bomb or seeing him at the crime scene--but the government made a very powerful presentation. To counter it, Jones had three strategies: raise the specter of a "real" bomber, or bombers, who had not been caught, attack the credibility of the Fortiers and challenge the forensics evidence.

Pivotal rulings by Judge Richard Matsch stymied Jones on two of those strategies. A judge can exclude evidence if he believes it is prejudicial or irrelevant or simply too insubstantial, and on three occasions, Matsch refused to let Jones introduce material the latter dearly hoped to present. Matsch allowed the jury to see only a small part of a Justice Department report that harshly criticized the fbi forensics lab, which did crucial work in the Oklahoma City case; he forbade Jones to try to show that a worldwide conspiracy may have been responsible for the bombing; and he barred testimony by a government informant named Carol Howe, who Jones also hoped would deflect guilt away from McVeigh and onto others.

Sources familiar with the defense say the exclusion of Howe was the worst blow. In 1994, while living in Elohim City, Okla., a redoubt of white supremacists, Howe became an informant for the Bureau of Alcohol, Tobacco and Firearms. She made about 70 reports to her ATF contacts, which Howe's lawyer turned over to the defense. Sources say the reports discuss five men who traveled frequently to Oklahoma City to inspect the Murrah building. In an internal ATF memo written in April 1995 and obtained by Time, Howe told her supervisors that Elohim City leaders talked to her about blowing up federal buildings in Tulsa and Oklahoma City. If McVeigh is found guilty, Jones will probably appeal, targeting this ruling of Matsch's.

Without the lab report, the international conspiracy and Howe, little was left of the defense. Jones presented fewer witnesses than he might have called in a hit-and-run case, and even among that small number, there was one whose testimony went terribly awry. Daina Bradley said while she looked out the window of the Murrah building on the morning of the blast, she saw a Ryder truck pull up and a man resembling the notorious John Doe No. 2 get out and run away. This is what she had said repeatedly for two years. Suddenly, though, Bradley, who lost a leg in the explosion, sank her face in her hands and said, "I need to talk to my lawyer." After a recess, she said she had seen two men leave the truck. The second man, she said, could have been McVeigh. Earlier this month, she told the defense she had seen another man, but Jones elected to call her anyway.

The defense's final sally came on Wednesday, when Jones played tapes of Michael Fortier, McVeigh's Army buddy, talking about the case with friends. The tapes were made by the fbi when Fortier was a suspect. Under a plea-bargain deal, he testified for the prosecution that he had helped McVeigh plan the bombing. "I can tell a fable," he said to his father when he was contemplating the deal. "I can tell stories all day long." On another tape he joked about how much money he could make selling his tale to newspapers and television shows.

Making the closing argument, Jones assailed Fortier and his wife Lori, another prosecution witness. He apologized for playing the tapes, which were "vulgar and appalling." It was necessary, he said, because "what we basically have here with the Fortiers is the prosecutorial equivalent of Eliza Doolittle being made over into the Henry Higgins of the fbi and My Fair Lady has become My Fair Witness." Another defense lawyer, Christopher Tritico, asked why PETN, the explosive material found on McVeigh's clothes, was not discovered elsewhere. "The government didn't give you any PETN from McVeigh's car," he said. "Why? Because there wasn't any...They even tested his hair, and they couldn't find any PETN in his hair."

It was an effective moment, yet altogether, the defense did not give an overpowering performance. Still, for two years, Jones has doggedly defended McVeigh, and he may have played the hand dealt him as best he could. "Before anyone should say Jones has done a bad job, you have to consider what he has to work with," says Welsh White, a law professor at the University of Pittsburgh who has followed the trial. "The prosecution does have a strong case, and I think they've presented it well. Jones has to try what's available to him."

If McVeigh is found guilty, the next step will be a decision on his punishment, which will be made by the jury. It is almost certain that the prosecution will seek the death penalty, and over the next week or so, the jury will hear arguments from both sides as to whether or not McVeigh deserves it. The alternative is a life sentence without parole, or Matsch could set aside the jury's sentence and pronounce his own.

While the Oklahoma City bombing was an act of utter barbarousness, a tragedy beyond mitigation, the trial has provided some consolation. Americans can take heart from how well the legal system has performed in this case. A tough, fair judge; a well-prepared and honorable prosecution; a defense that spared no effort for its client, regardless of the enormity of his alleged crime--these are the elements one wishes were present in every trial. Score one for civilization.

--Reported by Patrick E. Cole/Denver

With reporting by PATRICK E. COLE/DENVER