DAY OF RECKONING

By JAMES COLLINS

"If you don't consider what happened in Oklahoma, Tim was a good person." --MICHAEL FORTIER

When the prosecution's star witness in the Oklahoma City bombing trial made this observation about his close friend Timothy McVeigh a few weeks ago, he provoked gasps and nervous laughter in the courtroom. The remark was absurd--an amazing, morally obtuse Yogi Berra-ism. And yet it serves as a perfect summary of the argument the defense must now make in order to save McVeigh's life.

After the Denver jury found McVeigh guilty last Monday of all 11 crimes with which he had been charged, the case entered the penalty phase, in which the jurors must decide whether McVeigh deserves to be executed. All the offenses--conspiracy to use a weapon of mass destruction, use of a weapon of mass destruction, destruction by an explosive and the murder of eight federal law-enforcement agents--carry the possible penalty of death. Questions about the morality of the death penalty itself are moot, since in order to join the panel, the jurors had to say they were capable of imposing it. Their vote must be unanimous; if it is not, then McVeigh receives a sentence of life in prison without parole. The jury may choose to give him that punishment, but that is the only alternative to death.

The burden for the prosecutors in this phase is to prove beyond a reasonable doubt that McVeigh's crimes involved one or more "aggravating circumstances." If blowing up a building full of people and killing and wounding hundreds of them isn't an aggravating circumstance, it is hard to imagine what would be. Nevertheless, there are certain legal requirements the government must meet. The federal death- penalty statute lists 15 possible aggravating circumstances, and the prosecution is trying to prove that four of these apply--that deaths occurred while McVeigh was committing various felonies, that he created a grave risk of death to people other than the victims, that he engaged in substantial planning and premeditation and that he killed federal law-enforcement agents. The jury may also consider aggravating circumstances that are not on the statutory list. In this case, the prosecution is attempting to establish that McVeigh caused multiple deaths, that he caused serious physical and emotional injuries, and that his offenses had a severe impact on the victims and the victims' families. Victim-impact testimony is the technical term for the heartbreaking tales that were told in the courtroom last week.

For its part, the defense, led by Stephen Jones, is trying to show that there are "mitigating circumstances." These can include severe mental disturbance, an inability to appreciate the wrongfulness of one's actions, relatively minor participation in the crime and so on. The defense will not attempt to show that any of these apply to McVeigh, but there is a catch-all provision that allows it to bring in the background, record and character of the defendant. Accordingly, Jones will call witnesses from McVeigh's past with the hope of humanizing him and showing that up until April 19, 1995, he was a decent young man and fine soldier. Richard Burr, a soft-spoken death-penalty expert who is conducting the defense case in the penalty phase, told the jury that McVeigh is a man "who could be your son, who could be your brother, who could be your grandson."

Jurors and spectators sobbed last week as they listened to the witnesses describe the horrors they and others endured. "I saw a body in a blanket," recalled Jerry Flowers, a member of the Oklahoma City police force. "When I opened up the blanket, there was a 5-year-old boy. His face was gone." David William Klaus, whose daughter died in the bombing, told the jury that he and his wife got married on April 19, 1963, but now they celebrate their anniversary on the following day. Struggling to hold back tears, Klaus said, "There's just this huge hole in my heart that's never going to be filled up."

Businessman Mike Lenz recalled that on the day before the bombing, he looked on as his pregnant wife had a sonogram. Lenz saw that the baby was a boy and gave him a name on the spot--Michael James Lenz III. Lenz's wife and the child she was carrying were both killed the next day. "In one fell swoop, I went from being a husband and a daddy to realizing it was all gone," he said. "There was a point when I actually stuck a pistol in my mouth." Policeman Alan Propkop found a wounded baby with a brick lodged in his body; kicking a moving ambulance, he succeeded in making it stop so that the baby could be taken to the hospital.

One after another, the tragic accounts tumbled forth. Cliff Cagle, whose face was mangled by the bomb, was almost hysterical on the stand. "I lost my job, my honor," he said, "and my grandsons have to see me like this!" A surgeon told of resorting to his pocketknife to amputate the leg of Daina Bradley. Sue Mallonee, an epidemiologist, explained the injuries seen in pictures shown to the jury: dozens of lacerations on Fred Kubasta's back; the severed jugular vein, carotid artery and esophagus of Polly Nichols (miraculously, she lived).

Throughout the hearing, U.S. District Judge Richard Matsch has proscribed evidence he considered inflammatory. He wants the jury to make a reasoned decision based on fact, he said, and so he disallowed pictures of the victims' weddings, for example, and ruled that a nine-year-old boy, Clint Seidl, could not testify about the loss of his mother. The boy's "age and innocence," Matsch said, would make his testimony appeal too much to the emotions. But keeping emotions out of the proceeding was impossible, and jurors cried again and again. The prosecution's final witness was Clint's father Glenn, who read a statement written by the boy. "I will," it said "still make my mother Mother's Day and Valentine's Day cards like the other kids."

Of all the people involved in the case, the one who has been most stoical is the defendant. He showed no emotion when the verdicts were read, nor did he react during the testimony of the victims last week. While others wept, he sat at the defense table in his impassive pose, with his chin resting on his hands. Lawyers and spectators were shocked that McVeigh remained so unmoved, and the jury may also have been affected. "McVeigh's demeanor matters," said Larry Pozner, a veteran defense attorney in Denver. "The jurors see everything and forget nothing. The demeanor of Timothy McVeigh will be weighed."

McVeigh has not made it any easier for his lawyers to convince the jury that he is a real human being like them, with blood running through his veins, who deserves a measure of clemency. The most effective way to make this case would be to call McVeigh to the stand, where he could ask for mercy. Simply by talking to the jury, he would become a less cold and anonymous figure. According to sources familiar with the defense, however, McVeigh will not testify.

So the defense lawyers must turn to others to engender sympathy for their client. The first witnesses Burr called were friends of McVeigh's from the Army. "He was outstanding," said Jose Rodriguez. "He was a quick study and very intelligent." McVeigh's uniform was put on display. Among the decorations was a Bronze Star won for service in the Gulf War. Neighbors from McVeigh's hometown in upstate New York also testified. "He was just a nice kid," said John McDermott. He told how McVeigh baby-sat for his children and collected comic books. Then he broke down, saying, "I like him. I can't imagine him doing something like this."

Sources familiar with the defense tell TIME that the most important witness Burr intends to call is William McVeigh, the defendant's father. He will be put on last and will narrate a short film that he produced with the help of the defense and with the permission of Matsch. The film is about 15 min. long and shows Tim as a child with his family--a regular American kid. McVeigh's mother, who is divorced from his father, will not testify, say sources, because she is not up to it.

The defense also plans to call some of McVeigh's teachers and may introduce his elementary and high school records, copies of which TIME has obtained. "Tim is a very self-confident student," wrote Miss Chrzaszcz, who taught McVeigh in sixth grade. "He works very hard in the classroom. I will miss him very much." Throughout elementary school, McVeigh was described as "cooperative," "friendly," "helpful" and "well liked." In high school he graduated 49th in a class of 177; his IQ was measured at between 119 and 123. Here, the defense will argue, was a boy with a good future, whose life somehow went awry.

Federal law allows the defense to raise any "circumstance of the offense that mitigates against the imposition of the death sentence." Under this provision, Burr hopes to explain to the jury that McVeigh was sincerely motivated by anger over the FBI attack at Waco. In his opening statement, he told the jury, "You will hear that the fire of Waco did keep burning in Mr. McVeigh." Burr plans to play three videotapes about Waco that influenced McVeigh: The Big Lie, The Waco Incident and Day 51. McVeigh will submit an affidavit concerning his readings about Waco, and the defense will call Dick Reavis, the author of Ashes of Waco. Stuart Wright, the editor of Armageddon at Waco, will assist the defense on this week's testimony.

It is doubtful, even after all the defense witnesses have testified, that the jurors will feel any more indulgent toward McVeigh or that they will know him any better. He remains a mysterious figure. When he enters the courtroom, he continues to look relaxed and even jocular, until the jury comes in, and then his face goes blank. His only real confidant appears to be Jones. He had a birthday on April 23, when he turned 29; his lawyers gave him two flannel shirts and a box of Peppermint Patties. He spends most of his time in jail reading the piles of mail he receives. He also reads books. Last month it was W. Somerset Maugham's The Razor's Edge, and he is now finishing Man's Fate by Andre Malraux. A book about a young man's spiritual quest and one about revolutionaries--McVeigh must be taking both seriously.

If the jury votes for the death penalty, the sentence will not be carried out anytime soon. Both the guilty verdict and the death sentence can be appealed, and this process may take at least three or four years. Should the execution day come, the method will be lethal injection.

McVeigh has evidently agreed to Jones' effort to win him a life sentence, but if he were true to his beliefs, he should welcome the hangman (or hypodermic man). For years, the book he has cherished is The Turner Diaries, a fictional account of an uprising by a courageous band of white supremacists. Earl Turner, the hero, does not flinch at the idea of dying for his cause. Indeed, in the book's final pages he joyfully embraces this fate. "Brothers!" he says, addressing an elite group called the Order. "When I entered your ranks for the first time, I consecrated my life to our Order and to the purpose for which it exists...Now I am ready to meet my obligation fully. I offer you my life." The jury may give McVeigh his chance to do the same.

--Reported by Patrick E. Cole/ Denver and Kevin Fedarko/Oklahoma City

With reporting by PATRICK E. COLE/ DENVER AND KEVIN FEDARKO/OKLAHOMA CITY