On April 19, 1995, around 9:03 a.m., just after parents dropped their
children off at day care at the Murrah Federal Building in downtown
Oklahoma City, the unthinkable happened.
A massive bomb inside a rental
truck exploded, blowing half of the nine-story building into oblivion. A
stunned nation watched as the bodies of men, women, and children were
pulled from the rubble for nearly two weeks.
When the smoke cleared and
the exhausted rescue workers packed up and left, 168 people were dead in
the worst terrorist attack on U.S. soil. (Prior to 09-11-01)
It was the second anniversary of the fire at the home
of David Koresh's Branch Davidian followers in Waco, Texas.
Just 90 minutes after the explosion, an Oklahoma
Highway Patrol officer pulled over 27-year-old Timothy McVeigh for
driving without a license plate.
Shortly before he was to be released on
April 21, McVeigh was recognized as a bombing suspect and was charged
with the bombing.
When McVeigh's ex-Army buddy, Terry Nichols,
discovered that he, too, was wanted for questioning, he voluntarily
surrendered to police in Herington, Kansas, and was later charged in the
The federal raids at the Branch Davidian compound at
Waco and the cabin of white separatist Randy Weaver at Ruby Ridge
brought McVeigh's anti-government hatred to a head. He decided it was
time for action, not words. He packed a Ryder truck with explosives, lit
the fuses, parked it outside the federal building and walked away
without looking back.
McVeigh was sentenced to death. Nichols was tried
separately, convicted of Involuntary Manslaughter and Concpiracy to Use
a Weapon of Mass Destruction, and was sentenced to life imprisonment
McVeigh was unrepentant to the bitter end, claiming
that the true terrorist was the U.S. Government, and referring to the
killing of scores of innocent children in Oklahoma City as "collateral
damage." He waived his final appeals.
U.S. v. McVeigh, 918 F.Supp. 1452 (W.D.Okl. 1996)(Media request to
U.S. v. McVeigh, 918 F.Supp. 1467 (W.D.Okl. 1996) (Change of
U.S. v. McVeigh, 923 F.Supp. 1310 (D.Colo. 1996) (Discovery).
U.S. v. McVeigh, 931 F.Supp. 753 (D.Colo. 1996) (Motion to Stop
U.S. v. McVeigh, 931 F.Supp. 756 (D.Colo. 1996) (Gag Order).
U.S. v. McVeigh, 940 F.Supp. 1541 (D.Colo. 1996) (Motion to
U.S. v. McVeigh, 940 F.Supp. 1571 (D.Colo. 1996) (Motions to
U.S. v. McVeigh, 944 F.Supp. 1478 (D.Colo. 1996) (Motion to
Dismiss DP/Disqualify AG).
U.S. v. McVeigh, 169 F.R.D. 362 (D.Colo. 1996) (Motion for
U.S. v. McVeigh, 954 F.Supp. 1441 (D.Colo. 1997) (Discovery).
U.S. v. McVeigh, 954 F.Supp. 1454 (D.Colo. 1997) (Discovery).
U.S. v. McVeigh, 955 F.Supp. 1278 (D.Colo. 1997) (Motion to
Exclude Lab Testing).
U.S. v. McVeigh, 955 F.Supp. 1281 (D.Colo. 1997) (Motion for
Change of Venue/Continuance).
U.S. v. McVeigh, 958 F.Supp. 512 (D.Colo. 1997) (Separation of
U.S. v. McVeigh, 964 F.Supp. 313 (D.Colo. 1997) (Gag Order).
U.S. v. McVeigh, 118 F.Supp.2d 1137 (D.Colo. 2000) (Motion for
U.S. v. McVeigh, 153 F.3d 1166 (10th Cir. 1998)(Direct Appeal),
cert. denied, 119 S.Ct. 1148 (1999).
U.S. v. McVeigh, 2001 WL 611163 (D.Colo. 2001) (Stay of Execution).
U.S. v. McVeigh, 106 F.3d 325 10th Cir. 1997) (Separation of
U.S. v. McVeigh, 119 F.3d 806 (10th Cir. 1997) (Motion to Unseal),
cert. denied, 118 S.Ct. 1110 (1998).
U.S. v. McVeigh, 157 F.3d 809 (10th Cir. 1998) (Removing Gag
U.S. v. McVeigh, 9 Fed.Appx. 980 (10th Cir. 2001) (Stay of
Execution - Documents).
Last / Special Meal:
Two pints of mint
chocolate chip ice cream
McVeigh made no final remarks but gave witnesses a
handwritten copy of English poet William Ernest Henley's 1875 poem, "Invictus":
"In the fell clutch of circumstance I have not winced nor cried aloud.
Under the bludgeonings of chance my head is bloody, but unbowed..." "I
am the master of my fate; I am the captain of my soul."
Timothy James McVeigh (April
23, 1968 – June 11, 2001) was a United States Army
veteran and security guard who bombed the Alfred P.
Murrah Federal Building in Oklahoma City. He was
convicted of 11 United States federal offenses, and was
sentenced to death and executed for his role in the
April 19, 1995 bombing. His act, which killed 168 people,
was the deadliest event of domestic terrorism in the
United States, and the deadliest act of terrorism within
United States borders until the September 11, 2001
McVeigh was born in Lockport, New
York, and raised in nearby Pendleton, New York. He was
the middle child of three, and the only male child. His
family was Irish Catholic. He was picked on by bullies
at school, and took refuge in a fantasy world in which
he retaliated against them; he would later come to
regard the U.S. Government as the ultimate bully. He
earned his high school diploma from Starpoint Central
His parents, Mildred Noreen ("Mickey") Hill
and William McVeigh, divorced when he was in his teens.
McVeigh was known throughout his life as a loner; his
only known affiliations were voter registration with the
Republican Party when he lived in New York, and a
membership in the National Rifle Association while in
the military. His grandfather introduced him to guns,
with which he became fascinated. McVeigh told people he
wanted to be a gun shop owner, and he sometimes took a
gun to school to impress the other boys.
graduating high school with honors, he became intensely
interested in gun rights and the Second Amendment to the
United States Constitution, and devoured right-wing, pro-militia
magazines such as Soldier of Fortune and Spotlight. He
went to work for Burke Armored Car Service. McVeigh was
shy and was said to have only had one girlfriend during
his high school years. McVeigh would later tell
journalists that he always said the wrong thing to women
he was trying to impress.
After his parents' divorce, McVeigh
lived with his father; his sisters moved to Florida with
their mother. He and his father were devout Roman
Catholics who often attended daily Mass. In a recorded
interview with Time Magazine McVeigh professed
his belief in "a God", although he said he had "sort of
lost touch with" Catholicism and "never really picked it
[back] up". The Guardian reported that McVeigh
wrote a letter claiming to be an agnostic. He was given
the Catholic sacrament of Viaticum before his execution.
In May 1988, McVeigh enlisted in the
U.S. Army. Michel and Herbeck comment on the process of
brutalization he went through as a recruit: "During dawn
runs and their long, exhausting marches over the Georgia
sand, their sound-offs revolved around killing and
mutilating the enemy, or violent sex with women."
He was a decorated veteran of the
United States Army, having served in the Gulf War, where
he was awarded a Bronze Star. He had been a top scoring
gunner with the 25mm cannon of the light-armored Bradley
Fighting Vehicles used by the U.S. 1st Infantry Division
to which he was assigned. He served at Fort Riley,
Kansas, before Operation Desert Storm. At Fort Riley,
McVeigh completed the Primary Leadership Development
Course (PLDC). McVeigh later would say that the Army
taught him how to switch off his emotions.
McVeigh wanted to join the Green
Berets, the Army's elite special forces. After returning
from the Gulf War, he entered the program for training
to become a Green Beret, but dropped out quickly after
sustaining blisters from new boots issued for a 5-mile
march. He had disregarded advice to wait until he had
rebuilt stamina lost during the war. Shortly thereafter,
McVeigh decided to leave the Army and was discharged on
December 31, 1991. McVeigh was given an honorable
discharge from the Army Reserve in May 1992.
Post-military activities and lifestyle
After leaving the Army in 1992,
McVeigh grew increasingly transient. At first he worked
briefly near his hometown of Pendleton as a security
guard, and sounded off daily to his co-worker Carl
Lebron, Jr. about his loathing for government. Deciding
the Buffalo area was too liberal, he left his job and
began driving around America, seeking out his old
friends from the Army. McVeigh used methamphetamine with
Fortier, according to the latter; however, he evidently
was not as interested in drugs as Fortier, as one of the
reasons they parted ways was McVeigh's boredom with
Fortier's drug habits. Supposedly, he used mostly IV.
McVeigh wrote letters to local
newspapers, asking questions such as "Is civil war
imminent? Do we have to shed blood to reform the current
system?" Then in 1993, he drove to Waco, Texas during
the Waco Siege to distribute pro-gun rights literature
and sell bumper stickers. He told a student reporter:
government is afraid of the guns people have because
they have to have control of the people at all
times. Once you take away the guns, you can do
anything to the people. The government is
continually growing bigger and more powerful, and
the people need to prepare to defend themselves
against government control."
McVeigh spent time on the gun show
circuit. He sold copies of The Turner Diaries,
and a flare gun which he said could shoot down an "ATF
helicopter". One author said, "In the gun show culture,
McVeigh found a home. Though he remained skeptical of
some of the most extreme ideas being bandied around, he
liked talking to people there about the United Nations,
the federal government, and possible threats to American
liberty." In between watching coverage of the Waco siege
on TV, the Nichols brothers began teaching McVeigh how
to make explosives out of readily available materials.
The destruction of the Waco compound convinced McVeigh
that it was time to take action. The government also
imposed new firearms restrictions in 1994 that
threatened his livelihood.
McVeigh later said he considered "a
campaign of individual assassination," with "eligible"
targets including Attorney-General Janet Reno, Judge
Walter S. Smith Jr. of Federal District Court, who
handled the Branch Davidian trial, and Lon Horiuchi, a
member of the FBI hostage-rescue team who shot to death
the wife of a white separatist in a standoff at a remote
cabin at Ruby Ridge, Idaho, in 1992. He said he wanted
Reno to accept "full responsibility in deed, not just
words." However, such an assassination seemed too
difficult, and he decided that since federal agents had
become soldiers, it was necessary to strike against them
at their command centers.
Moreover, according to American
Terrorist, ultimately he decided that he would make
the loudest statement by bombing a federal building.
After the bombing, he would come to have some
ambivalence about his act, as expressed in letters to
his hometown newspaper that he sometimes wished he had
carried out a series of assassinations against police
and government officials instead.
Working at a lakeside campground near
his old Army post, McVeigh constructed an ANNM explosive
device mounted in the back of a rented Ryder truck. The
bomb consisted of about 5,000 pounds (2,300 kg) of
ammonium nitrate (an agricultural fertilizer) and
nitromethane, a motor-racing fuel.
On April 19, 1995 McVeigh drove the
truck to the front of the Alfred P. Murrah Federal
Building just as its offices and day care center opened
for the day. Prosecutors said McVeigh ran away from the
truck after he ignited a timed fuse. At 9:02 a.m., a
massive explosion destroyed the north half of the
building. The explosion killed 168 people, and 450 were
injured. Nineteen of the victims were small children in
the day care center on the ground floor of the building.
McVeigh did not express remorse for the deaths, what he
referred to as "collateral damage", but said he might
have chosen a different target if he had known the day
care center was open.
According to the Oklahoma City
Memorial Institute for the Prevention of Terrorism (MIPT),
more than 300 buildings were damaged. More than 12,000
volunteers and rescue workers took part in the rescue,
recovery, and support operations following the bombing.
In reference to theories that he had
assistance from others, McVeigh responded, "You can't
handle the truth. Because the truth is, I blew up the
Murrah Building, and isn't it kind of scary that one man
could wreak this kind of hell?"
trial, conviction, and sentencing
By tracing the Vehicle Identification
Number (VIN) of a rear axle found in the wreckage, the
FBI identified a vehicle as a Ryder Rental Junction City
agency truck. Workers at the agency assisted an FBI
artist in creating a sketch of the renter, who had used
the alias "Robert Kling". The sketch was shown in the
area. That day manager Lea McGown of the Dreamland Hotel
identified the sketch as Timothy McVeigh.
Shortly after the bombing, while
driving on I-35 in Noble County, near Perry, Oklahoma,
McVeigh was stopped by Oklahoma State Trooper Charles J.
Hanger from Pawnee, Oklahoma. Hanger had passed
McVeigh's yellow 1977 Mercury Marquis and noticed that
it had no license plate. While questioning McVeigh, he
noticed a bulge under his jacket and ended up arresting
him for carrying a loaded firearm; McVeigh's concealed
weapon permit was not legal in Oklahoma.
wearing a T-shirt at that time with a picture of Abraham
Lincoln and the motto: sic semper tyrannis, the
state motto of Virginia, and also the words shouted by
John Wilkes Booth after he shot Lincoln. The translation:
Thus, always, to tyrants. On the back, it had a
tree with a picture of three blood droplets and the
Thomas Jefferson quote, "The tree of liberty must be
refreshed from time to time with the blood of patriots
and tyrants." Three days later, while still in jail,
McVeigh was identified as the subject of the nationwide
On August 10, 1995, McVeigh was
indicted on 11 federal counts, including conspiracy to
use a weapon of mass destruction, use of a weapon of
mass destruction, destruction by explosives, and eight
counts of first-degree murder. On October 20, 1995, the
government filed notice that it would seek the death
On February 20, 1996, the Court
granted a change of venue and ordered that the case be
transferred from Oklahoma City to the US District Court
in Denver, Colorado, to be presided over by U.S.
District Judge Richard Matsch.
McVeigh instructed his lawyers to use
a necessity defense, but they ended up not doing so,
because they would have had to prove that McVeigh was in
"imminent danger" from the government. They argued that
his bombing of the Murrah building was a justifiable
response to what McVeigh believed were the crimes of the
U.S. government at Waco, Texas. The 51-day siege of the
Branch Davidian complex resulted in the deaths of 76
Branch Davidian members. As part of the defense,
McVeigh's lawyers showed the jury the controversial
video Waco: The Big Lie.
On June 2, 1997, McVeigh was found
guilty on all 11 counts of the federal indictment.
On June 13, 1997, the jury
recommended that McVeigh receive the death penalty. The
U.S. Department of Justice brought federal charges
against McVeigh for causing the deaths of the eight
federal officers leading to a possible death penalty for
McVeigh; it could not bring charges against McVeigh for
the remaining 160 murders in federal court because those
deaths fell under the jurisdiction of the state of
Oklahoma. Because McVeigh was convicted and sentenced to
death, the State of Oklahoma did not file murder charges
against McVeigh for the other 160 deaths.
During his time in prison, McVeigh
wrote various essays. An Essay on Hypocrisy
describes the U.S. Government as hypocritical for
justifying its attack on Iraq by stating that Iraq
should not be allowed to stockpile weapons of mass
destruction because it had used them in the past. He
cited Hiroshima and Nagasaki as examples of the U.S.
using nuclear weapons in the past. On April 26, 2001 he
wrote a letter to Fox News, I Explain Herein Why I
Bombed the Murrah Federal Building in Oklahoma City,
which explicitly laid out his reasons for the attack.
McVeigh's death sentence was delayed
pending an appeal. One of his appeals for certiorari,
taken to the Supreme Court of the United States, was
denied on March 8, 1999. McVeigh's request for a
nationally televised execution was also denied. An
internet company also sued for the rights to broadcast
McVeigh maintained an upbeat attitude,
noting that even after his execution, the score would
still be "168 to 1" and thus he was the victor. He also
said: "I am sorry these people had to lose their lives.
But that's the nature of the beast. It's understood
going in what the human toll will be."
He said that if there turned out to
be an afterlife, he would "improvise, adapt and overcome,"
noting that "If there is a hell, then I'll be in good
company with a lot of fighter pilots who also had to
bomb innocents to win the war."
He was executed by lethal injection
at 7:14 a.m. on June 11, 2001, at the U.S. Federal
Penitentiary in Terre Haute, Indiana. He had dropped his
remaining appeals, giving no reason for doing so. He was
33 years old. McVeigh stated that his only regret was
not completely leveling the federal building.
McVeigh invited California conductor/composer
David Woodard to perform a pre-requiem (a Mass for those
who are about to die), on the eve of his execution. He
had also requested a Catholic chaplain. Ave Atque
Vale was performed under Woodard's baton by a local
brass choir at St. Margaret Mary Church, located near
the Terre Haute penitentiary, at 7:00 p.m. on June 10,
to an audience that included the entirety of the next
morning's witnesses. McVeigh had two pints of mint
chocolate chip ice cream for his last meal. McVeigh
chose William Ernest Henley's poem "Invictus" as his
McVeigh was the first convicted
criminal to be executed by the United States federal
government since Victor Feguer in Iowa on March 15,
1963. Jay Sawyer, relative of one of the victims, noted,
"Without saying a word, he got the final word." Larry
Whicher, whose brother died in the attack, described
McVeigh as having "A totally expressionless, blank stare.
He had a look of defiance, and that if he could, he'd do
it all over again."
His body was cremated at Mattox Ryan
Funeral Home in Terre Haute. The cremated remains were
given to his lawyer, who scattered them at an
undisclosed location. McVeigh had earlier written that
he considered having his ashes dropped at the site of
the memorial where the Murrah building once stood, but
decided that would be "too vengeful, too raw, cold." He
had expressed willingness to donate organs, but was
prohibited from doing so by prison regulations.
Psychiatrist John Smith concluded
that McVeigh was a decent person who had allowed rage to
build up inside him to the point that he had lashed out
in one terrible, violent act.
Motivations for the bombing
McVeigh claimed that the bombing was
revenge for "what the U.S. government did at Waco and
Ruby Ridge." McVeigh visited Waco during the standoff,
where he spoke to a news reporter about his anger over
what was happening there.
McVeigh frequently quoted and alluded
to the white supremacist novel The Turner Diaries.
It described acts of terrorism similar to the one he
carried out. While McVeigh openly rejected the book's
racism (a roommate said that McVeigh was not a racist
and was basically indifferent to racist matters), he
claimed to appreciate its interest in firearms.
Photocopies of pages sixty-one and sixty-two of The
Turner Diaries were found in an envelope inside
McVeigh's car. These pages depicted a fictitious mortar
attack upon the U.S. Capitol in Washington.
In interviews before his execution,
documented in American Terrorist, McVeigh stated
he decapitated an Iraqi soldier with cannon fire on his
first day in the war and celebrated. But he said he
later was shocked to be ordered to execute surrendering
prisoners, and to see carnage on the road leaving Kuwait
City after U.S. troops routed the Iraqi army. In
interviews following the Oklahoma City bombing, McVeigh
said he began harboring anti-government feelings during
the Gulf War.
McVeigh had contemplated suicide on
many occasions. Anticipating that he would probably be
caught and executed, he referred to the bombing as "state-assisted
In addition to McVeigh, Terry Nichols
was convicted and sentenced in federal court to life in
prison for his role in the crime. At Nichols' trial,
evidence was presented indicating that others may have
been involved. Several residents of central Kansas,
including real estate agent Georgia Rucker and a retired
Army NCO testified at the Terry Nichols' federal trial
that they had seen two trucks at Geary State Lake, where
prosecutors alleged the bomb was assembled. The retired
NCO said he visited the lake on April 18, 1995, but left
after a group of surly men looked at him aggressively.
The operator of the Dreamland Motel testified that two
Ryder trucks had been parked outside her Grandview Plaza
motel where McVeigh stayed in Room 26 the weekend before
the bombing. Testimony suggested that McVeigh may have
had several other accomplices, but no other individuals
have been indicted for the bombing.
An Alcohol, Tobacco and Firearms (ATF)
informant, Carolyn Howe, told reporters that shortly
before the bombing she had warned her handlers that
guests of Elohim City, Oklahoma were planning a major
bombing attack. McVeigh was issued a speeding ticket
there at the same time. Other than this speeding ticket,
there is no evidence of a connection between McVeigh and
members of the MidWest bank robbers at Elohim City.
In February 2004, the FBI announced
it would review its investigation after learning that
agents in the investigation of the Midwest bank robbers
(an alleged Aryan-oriented gang) had turned up explosive
caps of the same type that were used to trigger the
Oklahoma City bomb. Agents expressed surprise that
bombing investigators had not been provided information
from the Midwest bank robbers investigation. McVeigh was
given a one-week delay prior to his execution while
evidence relating to the Bank Robbers' gang was
presented to a court.
McVeigh declined further delays and
maintained until his death that he had acted alone in
and Neo-Nazi conspiracy theories
In Others Unknown: Timothy McVeigh
and the Oklahoma City Bombing Conspiracy, Stephen
Jones, McVeigh's first, court-appointed lead defense
counsel (prior to the death-penalty phase of the case),
and Jones's co-author Peter Israel discuss several other
possible suspects and continued to implicate Terry
Nichols' brother, James.
Jones and Israel suggest in Others
Unknown that Terry Nichols had come into contact
with suspected Islamic terrorists during his frequent
visits to the Philippines before the attacks. Nichols'
father-in-law then was a Philippine police officer who
owned an apartment building often rented to Arabic-speaking
students with alleged terrorist connections. Richard A.
Clarke, former counter-terrorism adviser on the U.S.
National Security Council suggested that the improvement
in Nichols's bomb-making techniques, along with
telephone calls to the region upon his return to the U.S,
pointed to a possible link to Philippines-based Islamist
terrorists in Cebú and the southern islands. These
accounts were detailed in Richard A. Clarke's 2004 work
Against All Enemies, a memoir of his public
service spanning several administrations.
McVeigh's defense attorneys also
submitted a theory to the court that Islamist terrorists
and American Neo-Nazis conspired in the bombing. They
pointed out that location and day of the attack
indicated the possibility that those seeking revenge for
the execution of Richard Snell may have been involved.
Judge Matsch rejected these theories
and did not allow them to be presented as part of the
Government persecution conspiracy
Various other analysts have suggested
that the government was involved in a conspiracy behind
the bombing, or that the government planned the attack
as a false flag operation in order to justify
persecuting right-wing organizations. They pointed to
Nazi prosecution of legislators after the Reichstag fire.
In 1995, Brigadier General Benton K.
Partin (Ret.) published an analysis of the bombing. From
General Partin's analysis:
“It is impossible that the
destruction to the building could have resulted from
such a bomb [as McVeigh's] alone.
To cause the damage pattern that
occurred to the Murrah building, there would have to
have been demolition charges at several supporting
column bases, at locations not accessible from the
street, to supplement the truck bomb damage. Indeed,
a careful examination of photographs showing the
collapsed column bases reveals a failure mode
produced by demolition charges and not by a blast
from the truck bomb.”
Later he writes:
“Although the truck bomb had
insufficient power to destroy columns, the bomb was
clearly responsible for ripping out some floors at
the second and third floor levels.”
Conspiracy enthusiasts have
speculated that José Padilla was an accomplice of
McVeigh. Both of them lived in the greater Fort
Lauderdale area in Plantation, Florida. Following Jose
Padilla's arrest, several media outlets pointed to a
resemblance between Padilla and police sketches of an
Oklahoma City bombing suspect known as "John Doe No. 2".
In 2007 Oklahoma City bombing
conspirator Terry Nichols claimed that a high-ranking
FBI official directed Timothy McVeigh in the plot to
blow up a government building, and that the original
target might have been changed, according to a new
affidavit filed in US District Court. Nichols also
claimed that the government was protecting the official
and other conspirators "in a cover-up to escape its
responsibility" for the attacks.
Nichols contends a high-ranking FBI
director, Larry Potts, directed Timothy McVeigh in the
plot to blow up a government building and might have
changed the original target of the attack, according to
a new affidavit filed in U.S. District Court in Utah on
February 9th, 2007.
The suit, which seeks documents from
the FBI under the federal Freedom of Information Act,
alleges that authorities mistook Kenneth Trentadue for a
bombing conspirator and that guards killed him in an
interrogation that got out of hand. Trentadue's death a
few months after the April 19, 1995, bombing was ruled a
suicide after several investigations. The government has
adamantly denied any wrongdoing in the death.
Trentadue's brother, attorney Jesse Trentadue is suing
for FBI teletypes to support his belief that Federal
authorities were tipped to McVeigh's plans, but failed
to stop the bombing and let others walk away from
prosecution. A US District court judge Dale A. Kimball
ruled in September 21, 2007 that Trentadue can question
and videotape David Paul Hammer and Terry Nichols. The
FBI has opposed these videotapings. The FBI claimed "there
no longer existed any 'case or controversy' sufficient
to confer subject matter jurisdiction" to the court
after the agency's previous document disclosures. The
court disagreed, noting that the FBI's responses were
marked by a "troubling absence of documents to which
other documents referred."
In his affidavit of February, 2007,
Nichols says he wants to bring closure to the survivors
and families of the attack on the Alfred P. Murrah
Federal Building, which took 168 lives. He alleges he
wrote then-Attorney General John Ashcroft in 2004,
offering to help identify all parties who played a role
in the bombing but never got a reply.
McVeigh and Nichols were the only
defendants indicted in the bombing. However, Nichols
alleges others were involved. McVeigh told him he was
recruited for undercover missions while serving in the
military, according to Nichols. He says he learned
sometime in 1995 that there had been a change in the
bombing target and that McVeigh was upset by that.
The Oklahoma City
bombing was a domestic terrorist
attack on April 19, 1995 aimed at the
U.S. government in which the Alfred P.
Murrah Federal Building, an office
complex in downtown Oklahoma City,
Oklahoma, was bombed. The attack claimed
168 lives and left over 800 people
injured. Until the September 11, 2001
attacks, it was the deadliest act of
terrorism on U.S. soil.
Shortly after the
explosion, Oklahoma State Trooper
Charlie Hanger stopped 26-year-old
Timothy McVeigh for driving without a
license plate and arrested him for that
offense and for unlawfully carrying a
weapon. Within days after the bombing,
Timothy McVeigh and Terry Nichols were
both arrested for their roles in the
bombing. Investigators determined that
they were sympathizers of a militia
movement and that their motive was to
retaliate against the government's
handling of the Waco and Ruby Ridge
incidents (the bombing occurred on the
anniversary of the Waco incident).
McVeigh was executed by lethal injection
on June 11, 2001. Nichols was sentenced
to life in prison. A third conspirator,
Michael Fortier, who testified against
McVeigh and Nichols, was sentenced to 12
years in prison for failing to warn the
U.S. government. As with other large
scale terrorist attacks, conspiracy
theories dispute the official claims and
point to additional perpetrators
The attacks led to
widespread rescue efforts from local,
state, and federal and worldwide
agencies, along with considerable
donations from across the country. As a
result of the destruction of the Alfred
P. Murrah Federal Building, the U.S.
government passed legislation designed
to increase protection around federal
buildings and to thwart future terrorist
attacks. Under these measures, law
enforcement has since foiled sixty
domestic terrorism plots. On April 19,
2000, the Oklahoma City National
Memorial was dedicated on the site of
the Murrah Federal Building to
commemorate the victims of the bombing
and annual remembrance services are held
at the time of the explosion.
The bombing was a
long time in planning; as early as Sept.
30, 1994, Nichols bought 40 50-pound
(23 kg) bags of ammonium nitrate from
Mid-Kansas Coop, an amount regarded as
unusual even for a farmer. McVeigh
approached Fortier and asked him to
become involved in the bombing project,
but he refused, saying he would never be
part of the plan "unless there was a U.N.
tank in my front yard!" Nichols and
McVeigh stole blasting caps and liquid
nitro methane, keeping it in rented
storage sheds. They also allegedly
robbed gun collector Roger Moore of
$60,000 worth of guns, gold, silver and
jewels, taking them away in a van, which
was also stolen from him; although this
has been called into question because,
despite the fact that McVeigh visited
Moore's ranch, the robbers were said to
be wearing ski masks and thus a positive
identification was impossible; and in
any event, the physical description did
not match Nichols. Also, Aryan
Republican Army robbers were operating
in the area of Moore's ranch at the
McVeigh wanted to use
the rocket fuel anhydrous hydrazine, but
its expense was prohibitive. He composed
a letter to the Bureau of Alcohol,
Tobacco and Firearms which denounced
government agents as "fascist tyrants"
and "storm troopers" and warned, "all
you tyrannical mother fuckers will swing
in the wind one day for your treasonous
actions against the Constitution of the
United States." The original plan was
for Nichols to follow McVeigh's getaway
car with his truck in the wake of the
bombing, and for them then to flee in
the truck back to Kansas.
On April 15, 1995
Timothy McVeigh rented a Ryder truck in
Junction City, Kansas under the alias
Robert D. Kling. On April 16, he drove
to Oklahoma City with fellow conspirator
Terry Nichols where he parked a getaway
vehicle several blocks away from the
Alfred P. Murrah Federal Building. After
removing the license plate from the car,
the two men returned to Kansas.
17 and April 18, the men loaded 108 50-pound
(23 kg) bags of explosive-grade ammonium
nitrate fertilizer, three 55-US-gallon
(210 l) drums of liquid nitromethane,
several crates of explosive Tovex,
seventeen bags of ANFO, and spools of
shock tube and cannon fuse into the
truck. The two then drove to Geary
County State Lake where they nailed
boards into the floor to hold the
barrels in place and mixed the chemicals
together using plastic buckets and a
bathroom scale. McVeigh then added a
dual-fuse ignition system that he could
access through the truck's front cab.
McVeigh also included more explosives on
the driver's side of the cargo bay,
which he could ignite with his Glock 21
pistol if the primary fuses failed.
After finishing the construction of the
truck-bomb, the two men separated.
Nichols returned to Herington, Kansas;
McVeigh drove the truck to Oklahoma City.
Later during McVeigh's trial, a witness
stated that McVeigh claimed to have
arranged the barrels in order to form a
shaped charge. Three additional empty
blue steel barrels were in the cargo
hold behind the main charge, "as a decoy."
According to Terry Nichols, 12 bags of
ammonium nitrate fertilizer were left
loose and placed between the barrels and
the aluminum truck casing.
Two holes were
drilled in the cab of the Ryder truck
and two holes were drilled in the van of
the Ryder truck. One green cannon fuse
was run through each hole into the cab,
under the seat. These time-delayed fuses
led from the cab of the truck to the
non-electric Primadet blasting caps;
which were set up to initiate, with
millisecond precision, the 350 pounds of
Tovex Blastrite Gel "sausages"; which in
turn set off the configuration of
barrels. According to Nichols, a major
booster charge of Tovex was put at the
V-point in the configuration of barrels,
and the barrels also had some Tovex in
them; Kinepak was mixed and put in the
major booster charge. Of the thirteen
non-empty barrels, nine were filled with
ammonium nitrate and nitro-methane, and
four were filled with the fertilizer and
about four gallons of diesel fuel. Nine
bags of unopened fertilizer remained
stacked in the driver's side of the cab.
This was because there had not been
enough nitro-methane to mix all 13
barrels. Despite the ready availability
of diesel fuel at service stations, it
was not possible to make up for the
shortage of nitromethane by obtaining
more diesel fuel to add to the
fertilizer, because the blasting caps
were too unstable and the nitromethane
too unstable and easily degradable after
mixing it with explosive-grade
fertilizer, to transport long distances
in the back of a bumpy rental truck. It
is speculated, by investigative
journalist J.D. Cash and others, that
may have been other explosives stored in
the offices by federal law enforcement
agents in the course of their duties.
Government officials denied knowledge of
At dawn on April 19,
as he drove toward the Murrah Federal
building, McVeigh carried with him an
envelope whose contents included pages
from The Turner Diaries, a
fictional account of modern-day
revolutionary activists who rise up
against the government and create a full
scale race war. He wore a printed T-shirt
with the motto of the Commonwealth of
Virginia, Sic semper tyrannis ("Thus
ever to tyrants", which was shouted by
John Wilkes Booth immediately after the
assassination of Abraham Lincoln) and "The
tree of liberty must be refreshed time
to time with the blood of patriots and
tyrants" (from Thomas Jefferson). As the
truck approached the building, at 8:57
a.m. CST, McVeigh lit the five-minute
fuse. Three minutes later, still a block
away, he lit the two-minute fuse. He
parked the Ryder truck in a drop-off
zone situated under the building's day
care center, locked the vehicle, and
headed to his getaway vehicle.
At 9:02 a.m. CST, the
Ryder truck, containing about 5,000 pounds
(2,300 kg) of ammonium nitrate
fertilizer, nitromethane, and diesel
fuel mixture, detonated in front of the
north side of the nine-story Alfred P.
Murrah Federal Building.The blast
destroyed a third of the building and
created a 30-foot (9.1 m) wide, 8-foot
(2.4 m) deep crater on NW 5th Street
next to the building.
destroyed or damaged 324 buildings in a
sixteen-block radius, destroyed or
burned 86 cars around the site, and
shattered glass in 258 nearby buildings
(the broken glass alone accounted for 5%
of the death total and 69% of the
injuries outside the Murrah Federal
building). The destruction of the
buildings left several hundred people
homeless and shut down multiple offices
in downtown Oklahoma City.
The effects of the
blast were equivalent to over 4,000 pounds
(1,800 kg) of TNT, and could be heard
and felt up to 55 miles (89 km) away.
Seismometers at the Omniplex Science
Museum in Oklahoma City, 4.3 miles (6.9 km)
away, and in Norman, Oklahoma,
16.1 miles (25.9 km) away, recorded the
blast as measuring approximately 3.0 on
the Richter scale.
Within 90 minutes of
the explosion, McVeigh was arrested. He
was traveling north out of Oklahoma City
on Interstate 35 near Perry in Noble
County, when an Oklahoma State Trooper
stopped him for driving his yellow 1977
Mercury Marquis without a license plate.
The arrest was for having a concealed
Later that day, McVeigh was
linked to the bombing via the Vehicle
identification number (VIN) of an axle
and the remnants of a license plate from
the destroyed Ryder truck that had been
rented under his alias name, Robert
Kling. Federal agents created police
sketches with the assistance of owner
Eldon Elliot of the Ryder Rental agency
in Junction City. McVeigh was identified
by Lea McGown of the Dreamland Motel,
who remembered McVeigh parking a large
yellow Ryder truck in the lot; moreover,
McVeigh had signed in under his real
name at the motel, and the address he
signed in under matched the one on his
forged license and the charge sheet at
the Perry Police Station. Prior to
signing in to the hotel, McVeigh had
used fake names for his transactions;
McGown noted, "People are so used to
signing their own name 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."
After a court hearing
on the gun charges, but before McVeigh
was released, federal agents took him
into custody as they continued their
investigation into the bombing. Rather
than talk to investigators about the
bombing, McVeigh demanded an attorney.
Having been tipped off by the arrival of
police and helicopters that a bombing
suspect was inside, a restless crowd
began forming outside the jail.
McVeigh's requests for a bulletproof
vest or transport by helicopter were
Federal agents then
searched for Nichols, a friend of
McVeigh. Two days after the bombing,
Nichols learned that FBI investigators
were looking for him, and he turned
himself in. After a nine-hour
interrogation, he was formally held in
federal custody until his trial for
involvement in the bombing.
Ibrahim Ahmad, a
Jordanian-American traveling from his
home in Oklahoma City to visit family in
Jordan was also arrested in what was
described as an "initial dragnet". Due
to his background, the media initially
was concerned that Middle Eastern
terrorists were behind the attack.
Further investigation, however, cleared
Ahmad in the bombing.
At the end of the day
of the bombing, twenty people were
confirmed dead, including six children,
with over a hundred injured. The toll
eventually reached 168 confirmed dead,
not including an unmatched leg that
might be from a possible, unidentified
169th victim. Of these, 163 were killed
in the Alfred P. Murrah Federal Building,
one person in the Athenian Building, one
woman in a parking lot across the street,
a man and woman in the Oklahoma Water
Resources building, and a rescue worker
struck in the head by debris.
victims ranged in age from three months
to seventy-three, not including unborn
children of three pregnant women.
Nineteen of the victims were children,
including fifteen who were in the
America's Kids Day Care Center. The
bodies of all 168 victims were
identified at a temporary morgue set up
at the scene. Twenty-four people,
including sixteen specialists, used
full-body X-rays, dental examinations,
fingerprinting, blood tests, and DNA
testing to identify the bodies. The bomb
injured 853 people with the majority of
the injuries ranging from abrasions to
severe burns and bone fractures.
At 9:03:25 a.m. CST,
the first of over 1,800 9-1-1 calls
related to the bombing was received by
Emergency Medical Services Authority (EMSA).
By that time, EMSA ambulances and
members of the police and firefighters
were already headed to the scene, having
heard the blast. Nearby citizens, who
had also witnessed or heard the blast,
arrived to assist the victims and
emergency workers. Within 23 minutes of
the bombing, the State Emergency
Operations Center (SEOC) was set up and
included representatives of the state
departments of public safety, human
services, military, health, and
education. Assisting the SEOC were
agencies such as the National Weather
Service, the Air Force, the Civil Air
Patrol, and the American Red Cross.
Immediate assistance also came from 465
members of the Oklahoma National Guard,
who arrived within the hour to provide
security, and from members of the
Department of Civil Emergency
Management. Within the first hour, fifty
people were rescued from the Murrah
Federal building. Victims were sent to
every hospital in the area. By the end
of the day, 153 victims had been treated
at St. Anthony Hospital, eight blocks
from the blast, over 70 at Presbyterian,
41 at University, and 18 at Children's.
Temporary silences were observed so
listening devices capable of detecting
human heartbeats could be used to locate
survivors. In some cases, limbs had to
be amputated without anesthetic (avoided
due to its potential to cause a deadly
coma) in order to free those trapped
under rubble. Evacuations of the scene
were sometimes forced by the receipt by
police of tips claiming that more bombs
had been planted in the building.
At 10:28 a.m. CST,
rescuers found what they believed to be
a second bomb. Some rescue workers
initially refused to leave until police
ordered a mandatory evacuation of a four-block
area around the site. However about 45
minutes later the device was determined
to be a simulator used in training
federal agents and bomb-sniffing dogs,
and relief efforts were continued. The
last survivor, a fifteen-year-old girl
found under the base of the collapsed
building, was discovered at about 7:00
In the days following
the blast, over 12,000 people
participated in relief and rescue
operations. FEMA activated 11 of its
Urban Search and Rescue Task Forces,
comprising a team of 665 rescue workers
who assisted in rescue and recovery
operations. In an effort to recover
additional bodies, 100 to 350 tons of
rubble were removed from the site each
day until April 29. Twenty-four K-9
units and out-of-state dogs were brought
in to search for survivors and locate
bodies amongst the building refuse.
Rescue and recovery
efforts were concluded at 11:50 p.m. on
May 4, with the bodies of all but three
victims recovered. For safety reasons,
the building was to be demolished
shortly afterward. However, McVeigh's
attorney, Stephen Jones, called for a
motion to delay the demolition until the
defense team could examine the site in
preparation for the trial. More than a
month after the bombing, at 7:01 a.m. on
May 23, the Murrah Federal building was
demolished. The final three bodies,
those of two credit union employees and
a customer, were recovered. For several
days after the building's demolition,
trucks hauled 800 short tons (730 MT) of
debris a day away from the site. Some of
the debris was used as evidence in the
conspirators' trials, incorporated into
parts of memorials, donated to local
schools, and sold to raise funds for
humanitarian response was immediate and,
in some cases, even overwhelming. Rescue
workers received large amounts of
donated goods such as wheelbarrows,
bottled water, rain gear, and even
football helmets. The sheer number of
donated goods caused logistical and
inventory control problems until drop-off
centers were set up to accept and sort
the goods. The Oklahoma Restaurant
Association, which was holding a trade
show in the city, assisted rescue
workers by providing 15,000 to 20,000
meals over a ten-day period. Requests
for blood donations were met by local
residents Of the 9,000 units of blood
donated to the victims, only 131 units
were used, the rest saved in blood banks.
state government aid
At 9:45 a.m. CST,
Governor Frank Keating declared a state
of emergency and ordered all non-essential
workers located in the Oklahoma City
area to be released from their duties
for their safety. President Bill Clinton
learned about the bombing around 10:00
a.m. while he was meeting with Turkish
Prime Minister Tansu Çiller at the White
House. At 4:00 p.m. CST, President
Clinton declared a federal emergency in
Oklahoma City and spoke to the nation:
bombing in Oklahoma City was an
attack on innocent children and
defenseless citizens. It was an act
of cowardice and it was evil. The
United States will not tolerate it,
and I will not allow the people of
this country to be intimidated by
Four days later, on
April 23, Clinton spoke from Oklahoma
There was no major
federal financial assistance provided to
the survivors of the Oklahoma City
bombing, However, the Murrah Fund was
established and collected over $300,000
from federal grants. Additionally,
individuals around the country donated
$15 million to aid the disaster relief
and to compensate the victims. Later, a
committee chaired by Daniel J Kurtenbach
of Goodwill Industries provided
financial assistance to the survivors.
In the wake of the
bombing, the national media seized upon
the fact that 19 of the victims had been
children. Schools across the country
were dismissed early and ordered closed.
A photograph of firefighter Chris Fields
emerging from the rubble with infant
Baylee Almon, who later died in a nearby
hospital, was reprinted worldwide and
became a symbol of the attack. The
images and thoughts of children dying
terrorized many children who, as
demonstrated by later research, showed
symptoms of post-traumatic stress
President Clinton and
his wife, Hillary, showed concern about
how children were reacting to the
bombing. They requested that aides talk
to child care specialists about how to
talk to the children regarding the
bombing. President Clinton spoke to the
nation three days after the bombing,
saying: "I don't want our children to
believe something terrible about life
and the future and grownups in general
because of this awful thing...most
adults are good people who want to
protect our children in their childhood
and we are going to get through this".
On the Saturday after the bombing, April
22, the Clintons gathered children of
employees of federal agencies that had
offices in the Murrah Building, and in a
live nationwide television and radio
broadcast, addressed their concerns.
Hundreds of news
trucks and members of the press arrived
at the site to cover the story. The
press immediately noticed that the
bombing took place on the second
anniversary of the Waco incident. Many
initial news stories, however,
hypothesized the attack had been
undertaken by Islamic terrorists, such
as those who had masterminded the World
Trade Center bombing two years before.
Some responded to these reports by
attacking Muslims and people of Arab
As the rescue effort
wound down, the media interest shifted
to the investigation, arrests, and
trials of Timothy McVeigh and Terry
Nichols, and on the search for an
additional suspect named "John Doe 2".
Several witnesses had claimed to see the
second suspect with McVeigh who did not
sentencing of the conspirators
The FBI led the
official investigation, known as OKBOMB,
with Weldon L. Kennedy acting as Special
Agent in charge. It was the nation's
largest criminal case in history, with
FBI agents conducting 28,000 interviews,
amassing 3.5 short tons (3.2 MT) of
evidence, and collecting nearly one
billion pieces of information. The
investigation led to the separate trials
and convictions of McVeigh, Nichols, and
The United States was
represented by a team of prosecutors,
led by Joseph Hartzler. In his opening
statement, Hartzler outlined McVeigh's
motivations and the evidence against him.
McVeigh's motivation, he said, was
hatred of the government, which began
during his tenure in the Army as he read
The Turner Diaries, and grew
through the increase in taxes and the
passage of the Brady Bill, and grew
further with the Waco and Ruby Ridge
incidents. The prosecution called 137
witnesses, including Michael Fortier,
Michael's wife Lori Fortier, and
McVeigh's sister, Jennifer McVeigh, all
of whom testified on McVeigh's hatred of
the government and demonstrated desire
to take militant action against it. Both
Fortiers testified that McVeigh had told
them of his plans to bomb the Alfred P.
Murrah Federal building. Michael
revealed how McVeigh had chosen the date
and Lori testified that she created the
false identification card that McVeigh
used to rent the Ryder truck.
In his trial, whose
venue had been moved from Oklahoma City
to Denver, Colorado, McVeigh was
represented by a defense counsel team of
six principal attorneys led by Stephen
Jones. According to Linder, McVeigh
wanted Jones to present a "necessity
defense"––which would argue that he was
in "imminent danger" from the government
(that his bombing was intended to
prevent future crimes by the government,
such as the Waco and Ruby Ridge
incidents). Contrary to his client's
Jones opted for a
strategy of trying to poke what
holes he could in the prosecution's
case, thus raising a question of
reasonable doubt. In addition, Jones
believed that McVeigh was taking far
more responsibility for the bombing
than was justified and that McVeigh,
although clearly guilty, was only a
player in a large conspiracy.... In
his book about the McVeigh case,
Others Unknown: Timothy McVeigh and
the Oklahoma City Bombing Conspiracy,
Jones wrote: "It strains belief to
suppose that this appalling crime
was the work of two men—any two men...Could
[this conspiracy] have been designed
to protect and shelter everyone
involved? Everyone, that is, except
my client...[.]" Jones considered
presenting McVeigh as "the
designated patsy" in a cleverly
designed plot, but his own client
opposed the strategy and Judge
Matsch, after a hearing, ruled the
evidence concerning a larger
conspiracy to be too insubstantial
to be admissible.
In addition to
arguing that the bombing could not have
been accomplished by two men alone but
must have been perpetrated by a
conspiracy of more people whom McVeigh
was protecting, Jones also attempted to
raise reasonable doubt by arguing that
no one had seen McVeigh near the scene
of the crime and that the investigation
into the bombing had lasted merely two
weeks. During the trial, Linder observed
presented 25 witnesses over just a
one-week period. The most effective
witness for the defense might have
been Dr. Frederic Whitehurst, who
provided a damning critique of the
FBI's sloppy investigation of the
bombing site and its handling of
other key evidence. Unfortunately
for McVeigh, while Whitehurst could
show that FBI techniques made
contamination of evidence possible,
he could not point to any evidence (such
as trace evidence of explosives on
the shirt McVeigh wore on April 19)
that he knew to be contaminated.
The jury deliberated
for twenty-three hours. On June 2, 1997,
McVeigh was found guilty on eleven
counts of murder and conspiracy.
Although the defense argued for a
reduced sentence of life imprisonment,
McVeigh was sentenced to death. After
President George W. Bush approved the
execution (since McVeigh was a federal
inmate, federal law dictates that the
President must approve the execution) he
was executed by lethal injection at a
U.S. penitentiary in Terre Haute,
Indiana, on June 11, 2001. The execution
was televised on closed-circuit
television so that the relatives of the
victims could witness his death.
Terry Nichols stood
trial twice. He was first tried by the
federal government in 1997 and found
guilty of conspiring to build a weapon
of mass destruction and of eight counts
of involuntary manslaughter of federal
officers. After he received the sentence
on June 4, 1998 of life-without-parole,
the State of Oklahoma in 2000 sought a
death-penalty conviction on 161 counts
of first-degree murder. On May 26, 2004
the jury found him guilty on all charges,
but deadlocked on the issue of
sentencing him to death. Presiding Judge
Steven W. Taylor then determined the
sentence of 161 consecutive life terms
without the possibility of parole. He is
currently held in the ADX Florence
Fortier was considered an accomplice and
co-conspirator, he agreed to testify
against McVeigh in exchange for a modest
sentence and immunity for his wife. He
was sentenced on May 27, 1998 to twelve
years in prison and fined $200,000 for
failing to warn authorities about the
attack. As discussed by Jeralyn Merritt,
who served on Timothy McVeigh's criminal
defense team, on January 20, 2006, after
serving eighty-five percent of his
sentence, Fortier was released for good
behavior into the Witness Protection
Program and given a new identity.
No "John Doe #2" was
ever identified, nothing conclusive was
ever reported regarding the owner of the
missing leg, and the government never
openly investigated anyone else in
conjunction with the bombing. Though the
defense teams in both McVeigh's and
Nichols trials tried to suggest that
others were involved, Judge Steven W.
Taylor, who presided over the Nichols
trial, found no credible, relevant, or
legally admissible evidence of anyone
other than McVeigh and Nichols as having
directly participated in the bombing.
Until the September
11, 2001 attacks, the Oklahoma City
bombing was the deadliest act of terror
against the U.S. on American soil. Prior
to this, the deadliest act of terror
against the United States was the
bombing of Pan Am Flight 103, which
killed 189 Americans. In response, the
U.S. Government enacted several pieces
of legislation, notably the
Antiterrorism and Effective Death
Penalty Act of 1996. In response to the
trials of the conspirators being moved
out-of-state, the Victim Allocution
Clarification Act of 1997 was signed on
March 20, 1997 by President Clinton to
allow the victims of the bombing (and
the victims of any other future acts of
violence) the right to observe trials
and to offer impact testimony in trials.
In response to passing the legislation,
Clinton stated that "when someone is a
victim, he or she should be at the
center of the criminal justice process,
not on the outside looking in."
In the weeks
following the bombing, the federal
government ordered that all federal
buildings in all major cities be
surrounded with prefabricated Jersey
barriers to ward off similar attacks. As
part of a longer plan for United States
federal building security, most of these
temporary barriers have since been
replaced with permanent security
barriers which look more attractive and
are driven deep into the ground for
sturdiness. Furthermore, all new federal
buildings must now be constructed with
truck-resistant barriers and with deep
setbacks from surrounding streets to
minimize their vulnerability to truck
bombs. FBI buildings, for instance, must
be set back 100 feet from traffic. The
total cost of improving security in
federal buildings across the country in
response to the bombing reached over
In June 1995, the
General Services Administration issued
Vulnerability Assessment of Federal
Facilities, also known as The
Marshals Report. These findings resulted
in a thorough evaluation of security at
all federal buildings and a system for
classifying risks at over 1,300 federal
facilities owned or leased by the
federal government. Federal sites were
divided into five security levels
ranging from Level 1 (minimum security
needs) to Level 5 (maximum).
The Alfred P. Murrah
Building was a Level 4 building. Among
the 52 security improvement factors were
parking, lighting, physical barriers,
closed circuit television monitoring,
site planning and access, vehicular
circulation, standoff distance (which is
the setback of the building envelope
from the street to mitigate truck bomb
damage), hardening of building exteriors
to increase blast resistance, glazing
systems to reduce flying glass shards
and fatalities, and structural
engineering design to prevent
According to Mark
Potok, director of Intelligence Project
at the Southern Poverty Law Center, law
enforcement officials have foiled over
fifty domestic terror plots since the
Oklahoma City bombing. The attacks were
prevented due to measures established by
the local and federal government to
increase security of high-priority
targets and following-up on hate groups
within the United States.
The attack led to
improvements in engineering for the
purpose of constructing buildings that
would be better able to withstand
tremendous forces. Oklahoma City's new
federal building was constructed using
those improvements. The National
Geographic Channel documentary series
Seconds From Disaster suggested that
the Murrah Building would probably have
survived the blast had it been built
according to California earthquake
Even many who agreed
with some of McVeigh's politics viewed
his act as counterproductive. Much of
the criticism focused on the deaths of
innocent children. Bob Murphy of Anti-State
argued that the attack would "lead
ordinary Americans to trust the
government when it says those who oppose
it are crazy fanatics." Liz Michael
opined, "McVeigh was wrong. Not because
he was a killer. Because killing is
often necessary and sometimes good, even
godly. McVeigh was wrong because he was
a bad soldier. His target was wrong. His
timing was wrong. And there was no clear
moral grounding in his plan." These
critics, and others, expressed chagrin
that McVeigh had not assassinated
specific government leaders instead.
Indeed, McVeigh had
considered assassinating Attorney-General
Janet Reno and others rather than
bombing a building, and after the
bombing said that sometimes he wished he
had committed a series of assassinations
instead. However, Outpost of Freedom
decried the labeling of McVeigh as a "baby-killer,"
arguing that the blame for the
children's death rested on the parents
who brought them to a federal building
and the government that maintained a day
care center there despite Government
Accounting Office recommendations;
sentiments echoed by McVeigh himself in
An Essay on Hypocrisy. It
criticized the patriot media for taking
a "politically correct position in
expressing concern and declaring the
event as an unnecessary tragedy." Those
who expressed sympathy for McVeigh
typically described his deed as an act
of war, as in the case of Gore Vidal's
essay, The Meaning of Timothy McVeigh.
National Memorial & Museum
For two years after
the bombing, the only memorial for the
victims were stuffed animals, crucifixes,
letters, and other personal items left
by thousands of people at a security
fence surrounding the site of the
ideas for memorials were sent to
Oklahoma City within the first day after
the bombing, an official memorial
planning committee did not form until
early 1996. The Murrah Federal Building
Memorial Task Force, composed of 350
members, was established to formulate
plans in choosing a memorial to
commemorate the victims of the bombing.
On July 1, 1997, the winning design was
chosen unanimously by a 15-member panel
from 624 submissions. The memorial,
which has become part of the National
Park Service, was designed by Oklahoma
City architects Hans and Torrey Butzer
and Sven Berg. It was dedicated by
President Clinton on April 19, 2000,
exactly five years after the bombing.
The museum includes a
reflecting pool flanked by two large "gates",
one inscribed with the time 9:01, the
opposite with 9:03, the pool between
representing the moment of the blast. On
the south end of the memorial is a field
full of symbolic bronze and stone chairs—one
for each person lost, arranged based on
what floor they were on. The chairs
represent the empty chairs at the dinner
tables of the victim's family. The seats
of the children killed are smaller than
those of the adults lost. On the
opposite side is the "survivor tree",
part of the building's original
landscaping that somehow survived the
blast and fires that followed it. The
memorial left part of the foundation of
the building intact, so that visitors
can see the scale of the destruction.
Around the western edge of the memorial
is a portion of the chain link fence
which had amassed over 800,000 personal
items which were later collected by the
Oklahoma City Memorial Foundation.
On a corner adjacent
to the memorial is a sculpture titled "And
Jesus Wept", erected by St. Joseph's
Catholic Church. St. Joseph's, one of
the first brick and mortar churches in
the city, was almost completely
destroyed by the blast. The statue is
not part of the memorial itself but is
popular with visitors nonetheless. North
of the memorial is the Journal Record
Building which now houses the Oklahoma
City National Memorial Museum, an
affiliate of the National Park Service.
Also in the building is the National
Memorial Institute for the Prevention of
Terrorism, a non-partisan think tank.
From April 17 to
April 24, 2005, to mark the tenth
anniversary of the bombing in Oklahoma
City, the Oklahoma City National
Memorial held a week-long series of
events known as the "National Week of
On April 19, as in
previous years, the tenth anniversary of
the bombing observances began with a
service at 09:02 CST, marking the moment
the bomb went off, with the traditional
168 seconds of silence - one second for
each person who was killed as a result
of the blast. The service also included
the traditional reading of the names,
read by children to symbolize the future
of Oklahoma City.
Vice President Dick
Cheney, former president Clinton,
Oklahoma Governor Brad Henry, former
Oklahoma governor Frank Keating, and
other political dignitaries attended the
service and gave speeches in which they
emphasized that "goodness overcame evil".
The relatives of the victims and the
survivors of the blast also made note of
it during the service at First United
Methodist Church in Oklahoma City.
President George W.
Bush made note of the anniversary in a
written statement, part of which echoes
his remarks on the execution of Timothy
McVeigh in 2001: "For the survivors of
the crime and for the families of the
dead the pain goes on." Bush was invited
but did not attend the service because
he was en route to Springfield, Illinois
to dedicate the Abraham Lincoln
Presidential Library and Museum. Vice
President Cheney presided over the
service in his place.
theories involving more perpetrators
Some people believe
that a conspiracy is covering up the
existence of additional explosives
planted within the Murrah building.
Multiple websites show alleged cover-ups
and other possible perpetrators who
helped in planning the bombing.
say that there are several discrepancies,
such as an inconsistency between the
observed destruction and the bomb used
by McVeigh. One vocal proponent of this
view is Brigadier General Benton K.
Partin. Many critics of the official
explanation point to a blast effects
study published in 1997, utilizing test
results from the Eglin Air Force Base,
which concluded that "it is impossible
to ascribe the damage that occurred on
April, 1995 to a single truck bomb
containing 4,800 lbs. of ANFO" so that
the damage to the Murrah building was "not
the result of the truck bomb itself, but
rather due to other factors such as
locally placed charges within the
building itself".Some experts ascribe
the unusually large blast pattern to a
thermobaric weapon, utilizing highly
flammable metal particles mixed with a
liquid high explosive. When ignited in a
two-stage process, the device creates a
super-high heat and pressure blast
capable of flattening buildings.
reported a second person seen around the
time of the bombing; investigators would
later call him "John Doe 2". There are
several theories that the second person
was also affiliated with the bombing and
was even a possible foreign connection
to McVeigh and Nichols. Although the
U.S. government did arrest an Army
private who resembled an artist's
rendering of John Doe 2 based on
eyewitness accounts, they later released
him after their investigation reported
he was not involved with the bombing.
Some people have
argued that seismic recordings of the
event indicated multiple bombs. This
contention was refuted by U.S.
Geological Survey and Oklahoma
Geological Survey scientists, who
recorded and analyzed seismic signals
from the demolition of the Murrah
building. These demolition seismograms
showed that the two pulses of energy
recorded in Norman, OK from the bombing
were due to the seismic response of the
Earth rather than to multiple blast
In 2006, congressman
Dana Rohrabacher said that the
Subcommittee on Oversight and
Investigations of the U.S. House
Committee on International Relations,
which he chaired, would investigate
whether the Oklahoma City bombers had
assistance from foreign sources. On
December 28, 2006, when asked about
fueling conspiracy theories with his
questions and criticism, Rohrabacher
told CNN: "There's nothing wrong with
adding to a conspiracy theory when there
might be a conspiracy, in fact."
City of Oklahoma
City Document Management. Final
Report: Alfred P. Murrah Federal
Building Bombing April 19, 1995.
Stillwater: Department of Central
Services Central Printing Division,
1996. ISBN 0-8793-9130-8.
Geraldine. The Oklahoma City
Bombing. New York: The Rosen
Publishing Group, Inc., 2003. ISBN
ed. In Their Name. New York:
Random House, 1995. ISBN
Edward. The Unfinished Bombing:
Oklahoma City in American Memory.
New York: Oxford UP, 2001. ISBN
Michel, Lou, and
Dan Herbeck. American Terrorist:
Timothy McVeigh & The Oklahoma City
Bombing. New York: ReganBooks,
2001. ISBN 0-06-039407-2.
A. One of Ours: Timothy McVeigh
and the Oklahoma City Bombing.
New York: W. W. Norton & Company,
1998. ISBN 0-393-02743-0.
Sanders, Kathy, "After
Oklahoma City: A Grieving
Grandmother Uncovers SHOCKING TRUTHS
about the bombing...and Herself".
Master Strategies: Arlington, TX,
2005. ISBN 0-9766485-0-4 (paperback).
Wright, Stuart A.
Patriots, Politics, and the
Oklahoma City Bombing. Cambridge
Studies in Contentious Politics.
Cambridge and New York: Cambridge
UP, 2007. ISBN 978-0521872645 (hardcover).
ISBN 978-0521694193 (paperback).
(Catalogue description includes
summary, table of contents, and
excerpts from reviews.)
McVeigh Sentenced to Die for Oklahoma City Bombing
June 13, 1997
DENVER (CNN) -- Despite an emotional last-minute plea
from his parents, Timothy James McVeigh was sentenced to death Friday
for his role in the worst case of terrorism in U.S. history -- the
Oklahoma City bombing.
The seven-man, five-woman panel unanimously chose
death by lethal injection for the 29-year-old Gulf War veteran, after
deliberating for 11 hours over two days. Anything less than a unanimous
verdict would have meant life in prison without parole. The jury also
could have opted to send the case back to the judge and let him
determine the sentence.
Penalty is for killing federal agents
The same federal jury who sentenced McVeigh convicted
him of murder and conspiracy last week in the April 19, 1995, bombing of
the Alfred P. Murrah federal building that killed 168 people.
tried for conspiracy to commit the attack and for the deaths of eight
federal law agents who were in the building when a massive diesel fuel-fertilizer
bomb ripped the front off the nine-story building.
McVeigh was charged
along with his Army buddy Terry Nichols, who will be tried at a later
date. Testimony for the penalty phase in McVeigh's trial ended Wednesday,
and deliberations began Thursday after the completion of closing
Jurors never heard from McVeigh himself during the
four-day penalty phase of the trial. Instead, 27 witnesses were called
to portray him as a friendly child and first-rate soldier who left the
Gulf War disillusioned and restless.
Supporting a contention made by the
prosecution, the defense argued that the 1993 siege near Waco, Texas,
became a source of bitter anger for McVeigh. About 80 members of the
Branch Davidian cult were killed during a federal assault exactly two
years before the Oklahoma blast.
At times, jurors were in tears
Prosecutors, citing vivid testimony from blast
survivors and victims, argued that the blast was so lethal and
destructive that McVeigh deserved death. Several prosecution witnesses
brought jurors to tears with their accounts of mayhem, heroism and
random death in Oklahoma City.
Although all of the jurors, before they
were selected, told the court they would be willing to consider the
death penalty, Colorado juries have tended to be reluctant to sentence
defendants to death. The state has five people on death row, and hasn't
executed anyone since 1967.
A passion for weapons
The trial was moved to Denver by U.S. District Judge
Richard Matsch because he said McVeigh could not "obtain a fair and
impartial trial at any place" in Oklahoma.
The son of a General Motors auto worker from a rural
area near Buffalo, New York, McVeigh went on to become an Army platoon
leader, serving in a Bradley Fighting vehicle during the Gulf War. After
his return to the United States, he was discharged from the Army and
took a series of odd jobs, drifting across the country and spending time
with militia groups. Both sides offered testimony during the trial on
his passion for weapons and his zealous opposition to gun control.
June 11 2001
TERRE HAUTE, Ind. -- Timothy James McVeigh, who
murdered 168 people and maimed hundreds of others in what he believed
was an act of patriotism, was put to death by lethal injection early
The 33-year-old decorated Persian Gulf War veteran who
masterminded America's worst act of domestic terrorism was pronounced
dead at 7:14 a.m. CDT.
Strapped to a gray padded execution table inside the
federal government's sterile, sea green-tiled death chamber, McVeigh
received a lethal combination of drugs that rendered him unconscious,
arrested his breathing and stopped his heart. In minutes, the small-town
boy who became an army of one and ultimately this country's worst mass
murderer was forever silenced.
McVeigh made no final remarks but gave witnesses a
handwritten copy of English poet William Ernest Henley's 1875 poem, "Invictus":
"In the fell clutch of circumstance I have not winced nor cried aloud.
Under the bludgeonings of chance my head is bloody, but unbowed..." "I
am the master of my fate; I am the captain of my soul."
Survivors and family members took solace in McVeigh's
death. Janice Smith, whose 46-year-old brother, Lanny Scroggins, died in
the bombing, prayed with her children at the Oklahoma City National
Memorial, then left after getting word that McVeigh was dead. "It's
over,'' she said. ``We don't have to continue with him anymore.''
Earlier, a silent vigil began without fanfare -- 168 minutes, one minute
for each victim killed in the tragedy.
McVeigh's execution was witnessed by 10 survivors and
victims' relatives from the bombing of Oklahoma City's Murrah federal
building on April 19, 1995. Meanwhile, about 600 miles away, an
estimated 300 people gathered in a large, square room of a federal
prisoner transfer facility near Will Rogers World Airport to watch the
execution unfold on a large video screen.
McVeigh was permitted to
choose six witnesses and selected five: his lawyers, Robert Nigh Jr. and
Nathan Chambers; Cate McCauley, a former member of his defense team; and
Buffalo (N.Y.) News reporter and biographer Lou Michel. A fifth witness,
author Gore Vidal, announced he could not attend.
The execution took
place inside the federal government's death chamber at Terre Haute's
sprawling, red-brick U.S. penitentiary complex. It was the federal
government's first execution since 1963, when Victor Feguer was hanged
for the crime of kidnapping.
McVeigh's execution came nearly four years to the day
from his conviction. McVeigh at first appealed, but by last December, he
decided to waive any further appeals and await his execution. He
initially was scheduled to be executed May 16.
Then, just five days
before he was supposed to die, U.S. Atty. Gen. John Ashcroft postponed
the execution to give McVeigh's lawyers time to sift through 4,400 pages
of investigative documents that had never been turned over to McVeigh's
defense team before his 1997 trial.
The embarrassing disclosure led
Ashcroft to reschedule the execution to today, angering survivors and
victims' relatives who had prepared themselves emotionally and
logistically for the May 16 date. Once ready to die, McVeigh asked his
lawyers to request a stay from the trial judge in his case, U.S.
District Judge Richard Matsch. Last week Matsch refused, and when the
10th Circuit Court of Appeals affirmed Matsch's ruling, McVeigh told his
lawyers he had no desire to appeal to a higher court.
Two other men were convicted for their involvement.
Terry Nichols was convicted of manslaughter and conspiracy for helping
McVeigh and was sentenced to life in prison. He still faces state murder
charges. Another friend of McVeigh's, Michael Fortier, was sentenced to
12 years in prison for failing to warn law enforcement authorities about
McVeigh and Nichols' plans.
The Buffalo News published letters from McVeigh on
Sunday that had the guise of apology, but repeated the same
rationalizations he has clung to since he rigged a Ryder rental truck
into a 7,000-pound fertilizer bomb and detonated it in front of the
Murrah building. McVeigh wrote that taking 168 lives, including those of
19 children, was a "legit tactic."
He previously has described the
bombing as revenge for a mission to avenge the 1993 siege on the Branch
Davidian compound in Waco, Texas. "I'm sorry these people had to lose
their lives," McVeigh wrote to the News, his hometown newspaper. "But
that's the nature of the beast. It's understood going in what the human
toll will be."
Tom Kight, whose 23-year-old daughter, Frankie
Merrell, died in the bombing, viewed McVeigh's words as hollow and
inconsequential. "I don't see it as an apology," Kight said from
Oklahoma City. "His act spoke for itself. He knew innocent men, women
and children were going to be killed. "There are a lot of ways of
dealing with the government," Kight continued, "but you're never going
to change government through terrorism. Whatever his justification might
be, 168 people died. Nineteen children died. That just won't do it with
McVeigh's parents and two sisters were not at the
prison. His father, William McVeigh, has said he wants to remember his
son as the boy who played Little League, and the marksman soldier who
received a medal for killing two Iraqi soldiers with a single shot from
his Bradley vehicle, not the embittered drifter who embraced so-called
At 4:10 a.m. Sunday, McVeigh was moved from the
federal prison's special confinement unit into the execution building,
where he remained in a 9-foot by 14-foot beige cinder-block cell with a
bunk, television, stainless steel sink and toilet. "He's been
cooperative through the entire process, and things have gone pretty much
as planned," said U.S. Bureau of Prisons spokesman Richard Russell.
During McVeigh's transfer to the execution building, his condemned
client looked up into the night sky and gazed at the moon, something he
hadn't been able to do in years, said his lawyer, Nigh. McVeigh not only
seemed resigned to his fate, he seemed relatively comfortable with it.
He caught a couple of hours of sleep early Sunday morning, and had
planned to sleep again Sunday night, said Nigh's co-counsel, Chambers.
He watched television on a small black-and-white set in his cell. When
he spoke with Chambers and Nigh on Sunday, he appeared at ease and
talked freely. "I'd say he is in amazingly good spirits," Chambers said.
"He is pleasant to talk to, he continues to be affable. He continues to
be rational in his discourse,
He maintains his sense of humor." He was
allowed visits with his lawyers or a spiritual adviser up until two
hours before the execution. McVeigh had his last meal at noon Sunday:
two pints of mint chocolate chip ice cream.
Terre Haute, a city of 60,000, expected legions of
demonstrators, but by nightfall Sunday only about 200 had gathered at
the prison. Death penalty opponents sat in a circle on dewy grass and,
vigil candles in hand, prayed for 168 minutes to represent the 168
victims of the bombing, as well as for McVeigh. "Yes, we find ourselves
praying for Timothy McVeigh and his family, and for all those who sit on
death row," said Sister Ann Casper, a Sister of Providence from St. Mary-of-the-Woods
College near Terre Haute. "I just feel anything I can do to raise my
voice against the death penalty is important, and this is how I chose to
Chosen as the site for federal executions because of
its central location in the U.S., Terre Haute may be the site of another
federal execution in just eight days, when Juan Raul Garza is scheduled
to die for his involvement in three drug-related murders. Garza, 43, was
the leader of a drug ring that smuggled tons of marijuana into the U.S.
between 1983 and 1993. Garza has appealed his death sentence to the U.S.
New Hampshire Coalition to Abolish
the Death Penalty
"Witnesses Describe McVeigh's Last Minutes," by Mark
K. Matthews, Sentinel Staff.
The witnesses pressed their faces to the glass wall
of the death chamber, holding photos of their loved ones as they faced
Timothy McVeigh just a few feet away. They could see McVeigh as he lay
strapped to a gurney, wrapped in a sheet, waiting to die.
They heard the
orders for the execution. They watched the fluids flow into his body,
and they saw the color of his face change as his life slowly ebbed away.
But the 33-year-old mass murderer could not see the
families of his victims. Maybe, they hoped, he would feel their presence.
Ronald Brown of Keystone Heights, near Gainesville, was one of the 10
survivors or relatives of McVeigh's 168 victims chosen by lottery to
attend the execution in Terre Haute, Ind. "I had one thing on my mind,"
said Brown, 37, who lost his father-in-law, Robert Westberry, in the
blast. "And that was to get through this."
When Brown caught sight of
McVeigh, the killer was dressed in a white shirt and khaki pants, an IV
already inserted in his right leg. Warden Harley Lappin, standing with
his arms crossed, almost at attention, asked McVeigh if he had any final
There was a one-minute pause. McVeigh's head remained fixed, his
eyes still staring in the camera, rarely blinking. "He could not see us,
but I was pretty sure he knew what window he was looking into," Brown
said. "He looked toward us first -- nonchalant, like -- and then nodded
at his attorneys."
The Associated Press' Rex Huppke, one of the media
witnesses, said that minutes before McVeigh took his final breath, he
raised his head, strained his neck slightly and tried to acknowledge
everyone who would watch him die. Once Lappin issued the order to
proceed with the execution, McVeigh swallowed hard. His eyes moved
slightly from side to side. His chest moved up and down, and his lips
twice puffed air out, as if he were trying to maintain consciousness.
A guard in the witness room announced the first drug
had been administered. Ten minutes had passed: It was 8:10 a.m. EDT.
McVeigh's eyes remained open, but they began to glass over, started
rolling up just slightly. His pale skin began to turn slightly yellow.
At 8:11 a.m., the guard said the second drug had been administered. The
warden looked straight ahead, glancing down at McVeigh just occasionally.
The convicted bomber's lips began to turn the slightest tinge of blue.
He was still.
It was 8:14 a.m.
Fight the Death Penalty in the USA
Remaining silent and showing no emotion, Oklahoma
City bomber Timothy McVeigh was executed Monday morning. McVeigh died by
lethal injection at 7:14 a.m. (8:14 a.m. EDT) at the Federal
Penitentiary in Terre Haute, Indiana.
McVeigh was executed for the April
19, 1995, attack in Oklahoma City that killed 168 people and wounded
hundreds more. The bombing was the deadliest terrorism act ever on U.S.
soil. McVeigh's death was the first federal execution since 1963.
The 33-year-old Gulf War veteran did not say a word
in the final minutes before his execution. Media witnesses said McVeigh
lifted his head and looked at them and then looked at the ceiling.
He died with his eyes open. McVeigh left a handwritten statement quoting
Invictus, a 19th century poem by British poet William Ernest Henley. It
ends with the lines "I am the master of my fate: I am the captain of my
soul." McVeigh's body was removed immediately after his execution in a
government van, Justice Department officials said. They would not give
any information about its destination. McVeigh's body is to be cremated,
but his lawyers said information about his remains and any resting place
would remain privileged.
'Just a big relief,' witness says
Ten people -- members of the victims' families and
survivors of the bombing -- also witnessed the execution from a room
beside the death chamber. Paul Howell, whose daughter was killed in the
bombing, said McVeigh was expressionless. "What I was hoping for is that
we could see some kind of 'I'm sorry,' but we didn't get anything like
that. My emotions were that it was just a big relief. Just a big sigh
came over my body and it felt real good," Howell said.
More than 650 miles away in Oklahoma City, 232
survivors and family members watched on closed-circuit television. "He
actually lifted his head and looked directly in the camera, and it was
as if he was looking directly at us," said Larry Whicher, who lost his
brother. "His eyes were unblinking. They appeared to be coal black. I
truly believe that his eyes were telling me ... that if he could, he
would do it all over again."
Bush: 'Not vengeance, but justice'
U.S. Attorney General Ashcroft met with victims'
families in Oklahoma City for about a half-hour before the execution.
Ashcroft spokeswoman Mindy Tucker said he wanted to be in Oklahoma City
to "thank them for their guidance through this process, to thank them
from their patience and to again express sorrow for their loss." He did
not stay for the closed-circuit viewing.
About a half-hour after the execution, President Bush
said that McVeigh had "met the fate he chose for himself six years ago.
"The victims of the Oklahoma City bombing have been given not vengeance,
but justice," the president said.
McVeigh's attorneys, who had sought a
new sentencing hearing after the FBI revealed last month it had withheld
thousands of pages of documents during the trial, decried the execution
and said it would not end the pain. "If killing McVeigh does not bring
peace or closure to them, I suggest to you that it is our fault," said
Robert Nigh, who witnessed his client's death with colleague Nathan
Chambers. "We have made killing a part of the healing process."
Execution draws international criticism
Following the execution, a steady stream of visitors
could be seen at the Oklahoma City National Memorial Center. Some family
members could be seen praying and hugging each other in front of the 168
chairs representing the victims of the attack.
Fewer people than
expected turned out for protests supporting and opposing the execution.
About 75 anti-death penalty protesters had participated in a two-mile
march from St. Margaret Mary Catholic Church to the prison on Sunday.
The execution has drawn international criticism. The
president of the Council of Europe's Parliamentary Assembly called it "sad,
pathetic and wrong. "It demonstrated the futility of capital punishment
to act as a deterrent, giving him the notoriety he sought in committing
this horrendous crime," Lord Russel-Johnson said in a statement. "It is
high time the United States rethought its attitude to the death penalty
and aligned its position with the great majority of the free and
Timothy J. McVeigh & Terry Nichols
Speed freak Timothy McVeigh and fellow white-trash-neo-nazi-ex-soldier
Terry Nichols are believed to be responsible for blowing up the Alfred
P. Murrah Federal Building in Oklahoma City april 19, 1995. McVeigh and Co. thought the assault on the Branch Davidian compound by
federal authorities in 1993 was a step towards civil war.
To avenge this transgression by the feds, McVeigh,
Nichols, and other possible paramilitary freaks decided to blow up a
government building. On the two-year anniversary of the fiery assault in
Waco they parked a Ryder rental truck full of gas and fertilizer in
front of the federal building and blew it to smithereens killing 168
people, including twenty children.
After much fanfare McVeigh's trial started on April
25, 1997, in the Denver federal courthouse. Joseph Hartzler, the
wheelchair-bound leading prosecutor, emotively described McVeigh's
intent to declare war on the American Government.
The prosecutor told
the jury of McVeigh's disaffection with the US Army after the Gulf War
and his failure to join the elite Green Berets. His anger and
dissafection led him into the murky world of guns and militias which, in
turn paved his way to become the worst mass murderer in US history.
After striking a deal with the prosecution, the
government's main witness, Michael Fortier, told the jury had staked out
the Alfred E. Murrah Federal Building with McVeigh and that his buddy
was so intent on killing federal workers that he was prepared to crash a
bomb-filled Ryder truck into the front doors of the building. McVeigh's
sister, Jennifer, identified her brother's handwriting on a series of
letters he had written in which he expressed his hate for the government
and promised retaliation for the Waco massacre.
Other evidence included receipts linking the suspect
to large purchases of ammonium nitrate (one of the main components of
the bomb). Authorities where able to extract a latent print of the
suspect from a rental application for a 20-foot Ryder truck.
also presented a piece of video evidence from a surveillance camera near
the federal building placing a Ryder truck in it's vicinity minutes
before the blast. Lawyers for Timothy McVeigh rested their case after
presenting only three and a half days of evidence. McVeigh did not take
the witness stand in his defence and no alibi was offered. Nor did the
defense come close to presenting "the rest of the story" that
would establish absolute proof of Timmy's innocence, as promised by his
chief lawyer, Stephen Jones, in his opening statement.
aid defense spent most of their $10 million budget searching for an
international terrorist conspiracy as well as investigating homegrown
militia movements to blame. All the defense hopes crumbled when the
judge ruled that alternate theories about a broader conspiracy were
irrelevant to the trial.
Saving their biggest salvo until last, the defense
sought to discredit Michael and Lori Fortier, star prosecution witnesses,
who said McVeigh told them in detail about bombing the federal building.
The Fortiers, who admitted under oath that they had lied to the Feds,
were portrayed by Jones as drug users trying to save their white-trash
butts and cash in on film and book rights to their stories. He played
FBI wiretaps in which Fortier bragged of making $1 million from the
tabloids by concocting a story to mislead agents.
On June 2, after deliberating for four days the
federal jury found McVeigh guilty of the worst act of domestic terrorism
in U.S. history. Making no apologies, on August 14, McVeigh made his
first court statement before being formally sentenced to death by lethal
Quoting from a 1928 opinion written by Justice Louis Brandeis
in a wiretapping case, McVeigh said: "In the words of Justice
Brandeis, our government is the hope, the omnipresent teacher. For good
or for ill, it teaches people by its example. That's all I have, Your
Honor." Unsaid, the remainder of Justice Brandeis's dissention
posits that when the government becomes a law-breaker, so should its
The Oklahoma City Bombing & The
Trial of Timothy McVeigh
By Douglas O. Linder (2006)
Prosecutor Joseph Hartzler began his opening
statement in the Timothy McVeigh trial by reminding the jury of the
terror and the heartbreak: "Ladies and gentlemen of the jury, April
19th, 1995, was a beautiful day in Oklahoma City -- at least it
started out as a beautiful day. The sun was shining. Flowers were
blooming. It was springtime in Oklahoma City. Sometime after six
o'clock that morning, Tevin Garrett's mother woke him up to get him
ready for the day. He was only 16 months old. He was a toddler; and
as some of you know that have experience with toddlers, he had a
keen eye for mischief. He would often pull on the cord of her
curling iron in the morning, pull it off the counter top until it
fell down, often till it fell down on him. That morning, she picked
him up and wrestled with him on her bed before she got him dressed.
She remembers this morning because that was the last morning of his
A bomb carried in a Ryder truck exploded in front of
the Murrah Federal Building in Oklahoma City at 9:02 a.m. on April 19,
1995. The bomb claimed 168 innocent lives. That a homegrown, war-decorated
American terrorist named Timothy McVeigh drove and parked the Ryder
truck in the handicap zone in front of the Murrah Building there is
little doubt. In 1997, a jury convicted McVeigh and sentenced him to
death. The federal government, after an investigation involving 2,000
agents, also charged two of McVeigh's army buddies, Michael Fortier and
Terry Nichols, with advance knowledge of the bombing and participation
in the plot. Despite considerable evidence linking various militant
white supremacists to the tragedy in Oklahoma City, no other persons
faced prosecution for what was--until September 11, 2001--the worst act
of terrorism ever on American soil.
The Oklahoma City bombing trials raise questions more
interesting than the answers they provide. How, in four years, can an
army sergeant and Green Beret aspirant turn so violently against the
government he served? If there had been no Waco, would there have been
no Oklahoma City? Did McVeigh want
to be captured? Why did the government only bring charges against three
men in connection with the bombing, when compelling evidence suggests
that others played significant roles in the crime? We do not have clear
answers to any of these questions--but some possible answers to these
and other intriguing questions have come into better focus in the years
since the McVeigh and Nichols trials.
The Making of an American
The childhood of Timothy McVeigh in Lockport, New
York was far from idyllic. His parents divorced in 1978, when Tim was
ten, and for the remainder of his school years he lived mainly with his
father, Bill McVeigh. Scrawny and unathletic, "Noodle" McVeigh became a
target for neighborhood bullies. He attributes a lifelong hatred for
bullies of all kinds (a class which, in his view, included an
overreaching federal government) to early beatings on softball diamonds
and head spinning "swirlies" in flushing toilets.
It is possible that McVeigh's fascination with guns,
dating to pre-teen years spent admiring his grandfather's .22-caliber
rifle, might have something to do with his view of weapons as the great
equalizer. He dedicated himself to developing his marksmanship skills,
spending hours shooting holes in soft-drink cans in a ravine. By age
14, Tim McVeigh's interests included survivalism. He began stockpiling
food and camping equipment in preparation for possible nuclear attack or
a communist overthrow of the United States government.
Although McVeigh performed well on standardized tests
in high school, school and its social life had considerably less appeal
for him than his world of guns, fringe movements, and science fiction
books. He struck classmates as somewhat introverted and disengaged, and
his only extracurricular activity was track. Under the entry "future
plans" in his high school yearbook, McVeigh wrote: "Take it as it comes,
buy a Lamborghini, California girls." Despite his reference to
"California girls," McVeigh seemed uncomfortable around women, never had
a girlfriend, and--despite his own contentions to the contrary-- might
have remained a virgin throughout his entire life.
For two years following high school graduation,
McVeigh briefly attended a computer school in Buffalo and took on a
series of short-term jobs--then, in May 1988, he enlisted in the U. S.
Army. In basic training, the loner McVeigh found a friend in his platoon
leader, Terry Nichols, who shared his conservative and somewhat paranoid
political views. McVeigh seemed to fit well into the structured life of
the military, performing well enough to be promoted to sergeant.
He served in Fort Riley, Kansas, where he met Michael
Fortier, the man who would later provide key testimony against him in
the Oklahoma City bombing trial. From Fort Riley, McVeigh headed to the
Persian Gulf War, where for four months he drove a Bradley Fighting
Vehicle and, for his efforts, earned a bronze star. McVeigh seemed well-suited
to the details of military life; his army years were probably his best
years. Nonetheless, after realizing that he lacked the "right stuff"
during the first day of a Green Beret try-out, McVeigh requested and
received an honorable discharge in December 1991.
McVeigh's life darkened in the year following his discharge. By the
end of 1991, McVeigh was living with his father again in upstate New
York, near Buffalo, and working for near minimum wage as a security
guard. He fought through bouts of serious depression and thoughts of
suicide. Politically, he moved further and further from the mainstream.
He began espousing increasingly angry views of U. S. foreign policy, gun
control, and what he believed were conspiracies involving the United
In a March 1992 letter to the
Lockport Union-Sun, McVeigh wrote, "AMERICA IS IN DECLINE....Do
we have to shed blood to reform the current system?" According to
McVeigh, he first began thinking of violent action against the federal
government in August 1992 following news of a federal government shoot-out
with survivalist Randy Weaver in the Idaho woods.
In January 1993, McVeigh turned in his security company badge, sold
most of his belongings, packed his bags, left New York, and began a
transient life of gun shows, stays with army buddies, and short-term
jobs. Gun shows provided McVeigh with money and a steady stream of
acquaintances who shared his anti-gun control and anti-government views.
No event did more to radicalize McVeigh than did the stand-off near
Waco, Texas between members of the Branch Davidians, a religious cult
headed by David Koresh, and U. S. Bureau of Alcohol, Tobacco, and
Firearms (BATF). On February 28, 1993, 80 armed BATF agents tried to
execute a warrant to search for illegal weapons at the Mount Carmel
compound of the Davidians. The raid ended badly, with four agents and
six Branch Davidians killed. What would turn out to be a 51-day stand-off
began. The federal government's actions so infuriated McVeigh that he
traveled to Texas in March to sell bumper stickers with slogans such as
"Fear the Government that Fears Your Gun."
McVeigh was watching television at the farm of his army buddy, Terry
Nichols, in Michigan on April 19 when the government forces (including
the FBI and army) launched their attack against the heavily fortified
Davidian compound. Tanks rammed holes in the compound and agents fired
CS gas inside. Pyrotechnic devices fired into the building turned it
into a raging inferno. When it was over, 74 men, women, and children
were found dead inside the compound. McVeigh, in Michigan, sat stunned
and appalled: "What is this? What has America become?" He decided the
time would come when he would strike back.
The Widening Conspiracy
There is no shortage of people in the United States who have serious
beefs with the federal government. In addition to the anti-gun
control crowd, there are anti-tax fanatics, white supremacists who
resent government's race and immigration policies, and a wide variety
of persons who think the United States government is full of
communists or "one-world-government" proponents.
Timothy McVeigh had most of these complaints with the government,
and over the next two years would find himself in the company of many
who shared much of his somewhat paranoid world view. At an April 1993
gun show in Tulsa, for example, McVeigh met Andreas Strassmeir, the
grandson of a founder of the Nazi party and then the head of security
for Elohim City, a 400-acre compound on the Arkansas-Oklahoma border
founded by a white supremacist. (There is interesting, but
inconclusive, evidence suggesting that Strassmeir might have been a
federal undercover operative.)
In Kingman, Arizona, McVeigh renewed his friendship with army buddy
Michael Fortier, an anti-gun control protester with a passion for far-right
politics. In the fall of 1993, McVeigh and Terry Nichols made their
first visit to Elohim City, a hotbed of anti-government activity--including
a plot to blow up a federal building in Oklahoma City. (For McVeigh,
it would be the first of at least two, and most likely four or more
visits to the compound.)
In 1994, McVeigh's activities
became overtly criminal. According to FBI reports, it is probable
that McVeigh participated in a series of bank robberies around the
Midwest with a gang from Elohim City in an effort to raise money
for projects involving anti-government violence. McVeigh cased
banks, and most likely drove the getaway car in some of the heists.
He also plotted and carried out, with the help of either Nichols
or Elohim City residents, an armed robbery of an Arkansas gun
dealer that he had befriended at various gun shows. Joined by
Michael Fortier, he stole various items from an Arizona National
Some of McVeigh's activities
bordered on the bizarre. He turned his modest Arizona home into a
bunker, renounced his U. S. citizenship, and began making and
exploding homemade bombs. (According to a book by two inmates who
later shared death row with McVeigh, his recipe for the bomb he
would use in Oklahoma City came from a patriot friend, who used
his chemistry degree from the University of California as a Meth
manufacturer.) About this same time, McVeigh's own use of
methamphetamines increased. He became increasingly vocal in
promoting his apocalyptic world view.
In July 1994, he and Michael
Fortier trespassed on to "Area 51," a top secret government
reservation for weapons testing located near Roswell, New Mexico.
Two months later, he journeyed to Gulfport, Mississippi to
investigate a rumor that the town had become a staging area for
United Nations troops and equipment.
A farewell letter written by
McVeigh in July to his boyhood friend, Steve Hodge, revealed the
evolution of his thinking: "I have sworn to uphold and defend the
Constitution against all enemies, foreign and domestic, and I will....I
have come to peace with myself, my God, and my cause. Blood will
flow in the streets, Steve, Good vs Evil. Free men vs. Socialist
Wannabe Slaves. Pray it is not your blood, my friend."
In September 1994, according to
both McVeigh and the findings of a federal grand jury, that the
ex-Army sergeant began plotting to blow up the Murrah Federal
Building in Oklahoma City. The date identified by the grand jury
for the start of the conspiracy was September 13. On that day,
McVeigh was--according to FBI records showing a receipt for a
motel room in Vian, Oklahoma--visiting Elohim City, and probably
participating with other anti-government activists in a series of
military maneuvers. September 13 also marked the day,
coincidentally or not, that a new federal law banning assault
weapons became law.
By the end of September 1994,
McVeigh's plot (we will, in this trial commentary, call it "McVeigh's
plot," although there is a body of evidence to suggest that others
played significant planning roles as well) started to unfold. On
September 22, he rented a storage unit in Herington, Kansas, that
would later be used to house explosive materials. A week later,
Terry Nichols bought a ton of ammonium nitrate, a key ingredient
in the bomb that would be used in Oklahoma City. Ammonium nitrate
is a commonly used agricultural fertilizer and the purchase was
made at a farm cooperative in McPherson, Kansas.
October 1994 was a busy month for McVeigh and his co-conspirators.
He and Terry Nichols bought a second ton of ammonium nitrate from
the same farm cooperative. A burglary at a quarry near Marion,
Kansas on October 3 netted McVeigh and Nichols a supply of
dynamite and blasting caps. Wearing a biker disguise, McVeigh
purchased nearly $3000 work of nitromethane, a racing fuel used in
bomb construction, from a Dallas track. In between these supply-gathering
missions, McVeigh found time to visit Oklahoma City to inspect the
building he had targeted, and to calculate his own position at the
time the bomb would be likely to explode.
McVeigh also managed to fit in two separate visits in October to
Kingman, Arizona. He rented another storage locker and, with
Michael Fortier watching, tested the explosive mixture that he had
chosen for the Murrah Building bombing. McVeigh tried to recruit
Fortier to assist in the actual bombing, but Fortier balked, and
asked, "What about all the people?" McVeigh told Fortier to think
of the victims as "storm troopers in Star Wars" who, although
individually innocent, "are guilty because they work for the evil
empire." Despite the persuasive efforts of McVeigh, Fortier made
clear that he had no desire to be in Oklahoma City on the day of
McVeigh's close association with white supremacists and other
government-haters at Elohim City continued throughout 1994. In
addition to joining in bank robberies, there is evidence to
suggest that people at the compound were involved in the bombing
plot itself. According to BATF informant Carol Howe, who worked
undercover in Elohim City, Andreas Strassmeir and Dennis Mahon
made the first of three trips to Oklahoma City in November to
inspect possible bombing targets. Howe informed her supervisor of
these developments. The BATF was sufficiently alarmed by Howe's
reports to plan a raid on Elohim City, but following a February
1995 meeting with officials from the FBI and U. S. Attorney's
Office, the planned operation is called off. There is no way of
knowing whether the raid, if conducted, might have prevented the
tragedy in Oklahoma City--but that remains a real possibility.
In March 1995, when Terry Nichols told McVeigh that he wanted to
back out of the bombing plan, McVeigh had to turn elsewhere for
the assistance he would need in the final stages of the plot.
There is speculation that his help came from Elohim City. (McVeigh
wanted to be seen at the mastermind of the plot, and in his
statements discounted the role of others in the conspiracy,
leaving uncertainty as to exactly what roles others played. A
polygraph test taken by McVeigh showed him to be truthful in
regards to his own role in the bombing, but "evasive" concerning
the roles played by other persons not charged in the bombing.)
Fellow death row inmates David Hammer and Jeffrey Paul, in their
2004 book Secrets Worth Dying For,
contend that McVeigh revealed to them that he and four members of
the Aryan Republican Army, with Elohim City connections, met
several times in March and April 1995 in the Arizona desert, where
"they conducted 'dry runs' of the 'planting the bomb and getting
away.'" The two authors also contend that McVeigh told them he met
in Las Vegas a man he called "Poindexter," who provided detailed
knowledge on bomb assembly, and would visit with him again at
McVeigh's room at the Imperial Hotel in Kingman.
On April 5, two minutes after a phone call to the Ryder Rental
Company made from his motel room in Kingman, McVeigh placed a call
to Elohim City. The contents of that phone conversation are
unknown, of course, but there has been considerable speculation in
books and on Internet sites, that McVeigh sought to coordinate
bombing plans with some compound residents. Three days after his
phone call, McVeigh arrived in Oklahoma, where he was seen at Lady
Godiva's, a Tulsa strip club, in the presence of Elohim City
militants Andreas Strassmeir and a third man, who some people
suggest might have been Michael Brescia. A security camera in a
dressing room at the strip club apparently recorded McVeigh
telling a stripper, "On April 19, you'll remember me for the rest
of your life."
In the final days leading up to the bombing, Aryan Republican
Army members (and perhaps bomb expert "Poindexter") converged in
east central Kansas where final preparations were being made. (This
is a matter of dispute, as the trial record only hints at this
possibility and McVeigh told authorities otherwise, but a growing
body of evidence suggests several Elohim City activists played
critical roles in April 1995. This history is supported by the
chronology of events reported in
Secrets Worth Dying For, based on McVeigh's alleged death
row revelations. Any book written by convicted death row inmates
raises credibility concerns, but the inmates' account corresponds
fairly well with the timing of various sightings of "John Doe No.
2" and other unidentified persons, as reported by witnesses
interviewed by the FBI.) The men most likely camped at Geary Lake,
the same place where McVeigh said he received some cash from Terry
Nichols on April 14, before he checked into room 25 at the
Dreamland Motel in Junction City. A Junction pizza delivery man
later told an FBI interviewer that he delivered a pizza to "Bob
Kling" in room 25 that night--and that the man taking the pizza
was not Timothy McVeigh. "Bob Kling" was, most likely, ARA member
On Easter Sunday, April 16, McVeigh , Nichols, and (probably) "John
Doe #2" drove to Oklahoma City. McVeigh and John Doe #2 drove in
McVeigh's newly purchased Mercury Marquis, while Nichols followed
behind in his pickup. McVeigh parked the old Marquis, which was
to be his getaway car, in a lot near the Murrah Building, and then
rode back to the Dreamland Motel with Nichols and John Doe #2.
On the afternoon of April 17, McVeigh pulled out of Elliot's Body
Shop in Junction City with a Ryder rental truck. In a form he
filled out at Elliot's, McVeigh said he planned to use the truck
for a four-day trip to Omaha. McVeigh left the Dreamland Motel in
the Ryder truck about 4:30 the next morning.
Stories of what happened next diverge considerably. Either alone (one
story) or after picking up Brescia (another story), McVeigh drove
to his Herington storage locker where he (or they) met (depending
on which account you believe) either bomb expert Poindexter or
Terry Nichols. (According to
Secrets Worth Dying For, McVeigh said Nichols was "a
no-show" at the locker. McVeigh is said to have complained, "He
and Mike [Fortier] were men who liked to talk tough, but in the
end their bitches and kids ruled.") The men--whoever they were--loaded
bags of fuses and drums of nitromethane into the truck.
In his authorized biography, McVeigh claimed that he and Nichols
also loaded bags of fertilizer into the truck and then completed
the assembly of the bomb later that morning at Geary Park. In
this version of events, McVeigh set off alone later that afternoon,
heading south down I-35 for Oklahoma. He parked the Ryder truck
for the night near Ponca City, Oklahoma, sleeping in the cab.
(In his alleged prison revelations to inmates, on the other hand,
McVeigh reportedly said that the fertilizer had previously been
loaded into a second "decoy" truck, and that two trucks--not one--were
driven to Oklahoma City that afternoon. Assembly of the bomb was
said to have been completed that night at a warehouse in the
Oklahoma capitol city with the help of Poindexter, McVeigh, and
A.R.A. member Richard Guthrie. In this far more dramatic version
of events, related in Secrets
Worth Dying For, Poindexter was killed by a throat slashing
administered by an A.R.A. member after bomb assembly was completed.
The explanation given to McVeigh for the killing: "Soldier, he was
only hired help, not one of us.")
FBI interviews provide some support for each of the conflicting
stories. The couple who own the Santa Fe Trail Diner in Herington,
the site of McVeigh's storage locker, told federal interviewers
that they saw McVeigh, Nichols, and a third man who resembled John
Doe #2 having breakfast in their establishment around 8 a.m. on
the morning before the bombing. Witnesses also reported seeing a
Ryder truck and another pickup truck at Geary Lake an hour or two
later. Owners of a steakhouse in Perry, Oklahoma told agents they
saw McVeigh and "a stocky companion" eat dinner in their
restaurant around 7 in the evening. What to make of these various
sightings? We might never know exactly who assisted McVeigh in the
24 hours leading up to the dreadful events of April 19, but the
McVeigh-and-McVeigh-alone theory, and the McVeigh-and-just-Nichols
theory, both seem to stretch credulity.
April 19, 1995
For Timothy McVeigh, April 19 stood
out as a date with multiple historical meanings. It was, probably
foremost to the former visitor to Waco, the date in 1995 that the
federal government launched its attack on the Branch Davidian
compound in Texas, with the horrific loss of life that resulted.
McVeigh also knew April 19 to be the date in 1775 that the Battle
of Lexington occurred, marking the beginning of the armed uprising
by colonialists against British control.
In his getaway car, McVeigh
included a bumper sticker that he expected--probably wanted--authorities
to find. The bumper sticker carried the quote of Revolutionary
War patriot Samuel Adams, "WHEN THE GOVERNMENT FEARS THE PEOPLE,
THERE IS LIBERTY. WHEN THE PEOPLE FEAR THE GOVERNMENT, THERE IS
TYRANNY." Below the slogan, McVeigh scribbled his own words: "Maybe
now, there will be liberty!" April 19 of 1995, McVeigh also
certainly knew, was to be the scheduled day of execution in
Arkansas for a white supremacist Richard Snell, formerly of Elohim
City, who had--years earlier--targeted the Murrah Building in
Oklahoma City as the site for a potential bombing.
On the morning that he would become
the greatest mass murderer in American history, McVeigh chose to
wear a T-shirt with a drawing of Abraham Lincoln and the words
shouted by John Wilkes Booth after his assassination of the
president, "SIC SEMPER TYRANNIS" ("thus ever to tyrants").
In the version of events related by
McVeigh in his authorized biography,
American Terrorist, he
began driving south in his Ryder truck from Ponca City about 7
a.m. on the morning of April 19, having made an "executive
decision" to move up the scheduled timing of the bombing.
In the more sensational version of
events related in Secrets Worth
Dying For, McVeigh, with Michael Brescia in the passenger
seat of the Ryder truck, left an Oklahoma City warehouse around 8
a.m. At 8:45, McVeigh pulled the truck into an Oklahoma City tire
store to ask directions. According to the store employee who
talked with McVeigh, a second man wearing a baseball cap sat in
the passenger seat of the vehicle as McVeigh sought directions to
a downtown address six blocks away.
A video camera at 8:55 a.m.
captured the Ryder truck as it headed toward the center of
downtown Oklahoma City. The Ryder truck drove up NW 5th street
shortly before 9:00. McVeigh lit two fuses. He parked the truck
in the handicapped zone in front of the Alfred P. Murrah Federal
Building, locked the vehicle, and strode quickly away in the
direction of a nearby YMCA building.
At 9:02 a.m., shortly after many
parents had dropped their toddlers off at the Murrah Building's
second-floor daycare center, the bomb exploded, taking with it
much of the building, killing 167 people, injuring another 509,
and changing forever the lives of thousands of Oklahomans. (The
damage to the building was so extensive that many people believe
there were in fact two blasts--the second coming from an ATF
secure area where explosives being stored (illegally) were ignited
by the truck bomb. Both seismic evidence and witness testimony
supports the "two blast theory.")
Two news stories that followed the
bombing reported raised interesting questions concerning a wider
conspiracy. In Arkansas, prison officials reported that in the
days preceding April 19, Richard Snell repeatedly told them to
expect a big bombing or explosion on the day of his execution.
Execution came for Snell exactly twelve hours after the Oklahoma
Meanwhile, in Spokane, Washington,
the local paper reported that Chevie Kehoe, a former Elohim City
resident staying at a motel in the city, woke early on April 19 to
demand that the motel owner turn the lobby television to CNN,
telling him that "something is going to happen and it's going to
wake people up." The motel owner said that Kehoe became ecstatic
when news of the Oklahoma City bombing was announced. "It's about
time!" Kehoe is reported to have exclaimed.
About 80 minutes after the bombing,
Charles Hanger, an Oklahoma Highway Patrol officer, noticed a
McVeigh's Mercury driving north on I-35, about twenty miles from
the Kansas border. The car carried no license plate, so the
officer pulled the driver over. When McVeigh turned out to be
carrying a concealed weapon without a permit, in addition to
driving without a license or a vehicle registration, he was
arrested, booked, and placed in the county jail in Perry,
Later that day, amidst the gruesome
rubble of downtown Oklahoma City, federal agents found the vehicle
identification number for the Ryder truck. Within hours,
investigators were in a car headed for Junction City, Kansas, to
see who might have rented it.
The Investigation and Trial
By April 21, investigatory trails had
led to Timothy McVeigh and Terry Nichols. Initial speculation that
the bombing was the work of Arab extremists faded away. The lead FBI
investigator at Waco, Clinton Van Zandt of the FBI's Behavioral
Science Unit, recognized the importance of April 19 and told other
agents to look for a "white male...with military experience and ...a
member of some militia group...angry for what happened at Ruby Ridge
and Waco." Agents visiting Elliot's Body Shop in Junction City, the
shop that rented the Ryder truck, came away with a description of
renter "Robert Kling," a/k/a "John Doe No. 1," a white male with a
brush cut and a strong nose. The manager of the Dreamland Motel told
them that "John Doe No. 1" looked very much like Timothy McVeigh, who
had rented a room at her motel in the days before the bombing. A
former co-worker in New York also told authorities that "John Doe No.
1" might be the man he knew as Timothy McVeigh.
A computer check in Washington came up
with information that surprised and delighted investigators: Timothy
McVeigh was, at present, sitting in a Noble County, Oklahoma jail on
unrelated misdemeanor charges. Federal agents traveled to Perry,
where they picked up McVeigh--who had been wondering all the while
what was taking authorities so long--and transported him by helicopter
to Tinker Air Force Base, near Oklahoma City. Before his arraignment
that evening, McVeigh met briefly with two court-appointed attorneys.
"Yes," he told them, "I did the bombing."
Once authorities had the name of a
suspect, it wasn't difficult to identify McVeigh's army buddy, Terry
Nichols, as an additional target of suspicion. McVeigh had listed the
Nichols farm in Michigan as his home address. Nichols turned himself
into authorities in Herington, Kansas, and consented to a search of
his home. Searchers found guns, stolen goods, anti-government books,
ammonium nitrate, a receipt for the purchase of the ammonium nitrate,
Primadet explosive, a hand-drawn map of downtown Oklahoma City, and a
telephone card used by McVeigh to make calls in his hunt for bomb-making
Ultimately, the federal government
would bring charges against three men: McVeigh and Nichols for
conspiracy to bomb a federal building and for the murder of federal
agents, and Michael Fortier for not informing authorities about the
bombing and lying to federal agents about his knowledge of the bombing.
Prosecutors never fully explained the decision not to bring charges
against others suspected of playing significant roles in the bombing
conspiracy, but apparently they simply believed they lacked the
compelling evidence necessary to meet the Constitution's high "beyond
a reasonable doubt" standard of guilt.
Fortier agreed to assist government
prosecutors in return for not facing conspiracy charges, a promise of
leniency for his admitted crimes, and the promise that his wife would
not be charged. Grand jury indictments of McVeigh and Nichols came on
August 11, 1995, three days after Michael and Lori Fortier presented
their testimony in the case.
Fearing a fair trial was not possible
in Oklahoma, U. S. District Judge Richard Matsch moved the trial to
Denver. Judge Matsch also ordered that McVeigh and Nichols be tried
separately, with McVeigh's trial to begin first. After receiving
authorization from Attorney General Janet Reno to do so, prosecutors
announced that they would seek the death penalty in both cases.
The Trial of Timothy McVeigh
Timothy McVeigh never got the trial
he wanted. He tried to convince his attorneys to present a "necessity
defense" that might allow him to present evidence of the "crimes"
of the federal government that his bombing was meant to prevent.
McVeigh believed that at least some jurors, were they to hear
about the government's actions at Ruby Ridge and Waco, would find
the bombing justified. (Given the carnage he caused, McVeigh's
hope of sympathetic jurors seems far from realistic.) More
importantly to McVeigh, a political trial might provide him the
opportunity to make his case against an overreaching federal
government in the larger court of public opinion.
McVeigh's lead lawyer was Stephen
Jones, a Republican activist who had taken on other politically
charged cases. Upon his appointment as lead counsel, Jones told
reporters, "My role is as old as the Constitution. Whether I
perform professionally will be determined by how I conduct myself,
and whether my client is satisfied..."
The relationship between McVeigh
and his attorney soon became strained, when McVeigh suspected
Jones as being the source of a leak reported in the
New York Times that
McVeigh had confessed. McVeigh also resented Jones's refusal to
push his "necessity defense," a decision made by Jones after
research convinced him that McVeigh had no chance of establishing--as
he would be required to do to raise the defense--that the federal
government put McVeigh in "imminent danger."
Rather than employ a necessity
defense, Jones opted for a strategy of trying to poke what holes
he could in the prosecution's case, thus raising a question of
reasonable doubt. In addition, Jones believed that McVeigh was
taking far more responsibility for the bombing than was justified
and that McVeigh, although clearly guilty, was only a player in a
large conspiracy. It fit McVeigh's personality, Jones thought,
for him to sacrifice himself for others who shared his anti-government
cause. Jones spent considerable resources investigating McVeigh's
possible ties to Arab terrorists and Andreas Strassmeir and his
Elohim City associates. So much so, in fact, that McVeigh took to
sarcastically calling his attorney "Sherlock Jones." "He was
investigating me, not defending me," McVeigh complained.
In his book about the McVeigh case,
Others Unknown: Timothy McVeigh
and the Oklahoma City Bombing Conspiracy, Jones wrote: "It
strains belief to suppose that this appalling crime was the work
of two men--any two men...Could [this conspiracy] have been
designed to protect and shelter everyone involved? Everyone, that
is, except my client..." Jones considered presenting McVeigh as "the
designated patsy" in a cleverly designed plot, but his own client
opposed the strategy and Judge Matsch, after a hearing, ruled the
evidence concerning a larger conspiracy to be too insubstantial to
Jury selection in the McVeigh case began on March 31, 1997, a
month after the appearance of a national news story reporting that
McVeigh told defense investigators that he bombed the Murrah
Building at the time of day he did to "increase the body count."
The poorly timed leak probably came when a member of the defense
team turned over to the Dallas
Morning News a computer disk containing FBI reports, not
knowing that the contents of their interview with McVeigh also
were on the same disk. McVeigh became convinced that any chance
of landing a sympathetic juror, or receiving sympathetic treatment
from the judge, evaporated with the story about his interview.
Over the course of three weeks, a jury of seven men and five women
Opening statements began on April 24, in front of a packed
courtroom at the Byron C. Rogers Courthouse and a closed-circuit
viewing audience in Oklahoma that included many victims and their
families. Lead prosecutor Joseph Hartzler, a wheelchair-bound
multiple sclerosis victim, led with a dramatic opening statement
that reminded jurors of the tremendous losses suffered two years
"All the children I mentioned
died, and more--dozens and dozens of other men, women, children,
cousins, loved ones, grandparents, grandchildren, ordinary
Americans going about their business. And the only reason they
died...is they were in a building owned by a government that
Timothy McVeigh so hated....And the man who committed this act
is sitting in this courtroom behind me. After he did so, he
fled the scene--and he even avoided damaging his eardrums
because he had earplugs with him."
Hartzler scornfully attacked
McVeigh's attempts to portray himself as a modern-day patriot "like
Patrick Henry and Samuel Adams." Hartzler reminded jurors that "our
forefathers didn't fight British women and children; they fought
other soldiers." And, he said, they fought them fair: "They
didn't plant bombs, and run away wearing earplugs."
In his opening statement for the
defense, Stephen Jones charged that the government conducted a
hasty two-week investigation of the actual bombing and then spent
the next two years zeroing in on his client. Critical evidence
was ignored, Jones charged, such as the eyewitness testimony of
bombing victim Daina Bradley that the person she saw emerge from
the Ryder truck by the federal building was black-haired, stocky,
and had an olive complexion--"John Doe No. 2," not Timothy McVeigh.
Jones saved his greatest wrath for star prosecution witness
Michael Fortier, who he labeled as story-changing, dope-dealing
conniver. Jones concluded his statement by promising jurors that
by the end of the trial he would show them that his client was
innocent of all charges.
The prosecution presented 137
witnesses. Some witnesses told of their own heart wrenching
losses they suffered that April day. Michelle Rausch, a former
journalism student, told of interviewing McVeigh as he peddled
anti-government bumper stickers outside of government barricades
near Waco in 1993. FBI agents described how they traced evidence
found in the bombing to McVeigh. Charles Hanger of the Oklahoma
Highway Patrol described his arrest of McVeigh on I-35, while
other law enforcement authorities described evidence found in
McVeigh's car. Tim Chambers, the Texas seller of the racing fuel
nitromethane, described his dealings with the person he now knew
to be McVeigh. McVeigh showed little emotion during the nearly
month-long parade to the stand.
The Fortiers, Michael and Lori,
filled in some of the most critical gaps in the prosecution's
case. Lori Fortier admitted to some of her own failings and
misdeeds, including drug use, lying to authorities, trafficking in
stolen guns, wrapping blasting caps in wrapping paper, and helping
McVeigh forge a driver's license. Nonetheless, she presented
convincing evidence of McVeigh's key role in the bombing.
For example, Lori Fortier described
the day McVeigh laid about fifteen soup cans out on the floor of
her trailer to illustrate the type of bombs he hoped to assemble
in his truck. In his long and rambling cross-examination, Stephen
Jones forced Lori to concede that she could have saved 168 lives
with a simple phone call, but chose not to, and that she had been
promised full immunity by the federal government in exchange for
her incriminating testimony.
Michael Fortier proved to be the
state's most important witness. Fortier could take jurors from
the Timothy McVeigh he knew immediately after Waco, who at that
time had unleashed a torrent of anti-government venom, to the one
poised and ready to send a message to that same government in
Fortier told jurors how McVeigh, in his living room in October
1994, had provided him with detailed plans to blow up the Murrah
Building. By then, according to Fortier, McVeigh had already
chosen the date for his attack to mark the second anniversary of
the Waco assault. One of the most memorable moments of the trial
came when Joseph Hartzler asked Fortier, "Did you have any
discussion [with Tim McVeigh] about the deaths that such a bomb
would cause?" Fortier replied, "I asked him about that... I said,
'What about all the people?' And he explained to me, using the
terms from the movie "Star Wars" -- he explained to me that he
considered all those people to be as if they were the storm
troopers in the movie "Star Wars." They may be individually
innocent; but because they are part of the -- the evil empire,
they were -- they were guilty by association." Fortier also
revealed his own reaction, when he first heard the news from
Oklahoma City: "Oh my God, he did it."
The most painful testimony for McVeigh probably came from his own
sister, Jennifer McVeigh. Her obvious reluctance to offer
testimony that hurt her brother made what she did say all the more
damaging. Jennifer outlined for jurors her brother's evolution
from a government critic to a militant poised to take violent
action against what he saw as a lawless government. She revealed
that he told her of his experience with explosives, as well as the
ominous words that ended one of his last letters to her: "Won't be
The defense presented 25 witnesses over just a one-week period.
The most effective witness for the defense might have been Dr.
Frederic Whitehurst, who provided a damning critique of the FBI's
sloppy investigation of the bombing site and its handling of other
key evidence Unfortunately for McVeigh, while Whitehurst could
show that FBI techniques made contamination of evidence
possible, he could not
point to any evidence (such as trace evidence of explosives on the
shirt McVeigh wore on April 19) that he knew to be contaminated.
The task of the defense team was all but impossible. They could
not come up with a single alibi witness. They faced the reality
that McVeigh had told dozens of people of his hatred of the
government, and had told a friend that he planned to take violent
action on April 19. Rental agreements and a drawing of downtown
Oklahoma City linked him to the blast. He carried earplugs in his
car driving north from Oklahoma City forty minutes after the
explosion. How could it all be explained away?
In his closing argument, Jones pointed the jury to what the
prosecution didn't have, such as an eyewitness that placed him
near the Murrah Building around 9:00 a.m. on April 19, or the lack
of McVeigh's fingerprints on the ignition key for the Ryder rental
truck recovered in the bombing investigation. The Fortiers'
lacked credibility, Jones said, they were just out to save their
own skins. For a sympathetic defendant charged in a less heinous
crime, poking holes in a prosecution case can sometimes be enough.
Not in this case, however.
After over twenty-three hours of deliberation, the jury returned
its verdict: guilty on all eleven counts. McVeigh sat
expressionless at the defense table as the verdict was read.
The same jury listened to evidence in the penalty phase of the
trial, with McVeigh's life hanging in the balance. Much of the
testimony did not make for easy listening. Stories of heartbreak
and loss, told by victims and rescue workers and medical personnel.
Doctors told of sawing off legs of people trapped under the rubble.
Wifes told of husbands who would never see their children graduate
or get marries. Firefighters described recurring nightmares they
had experienced since the tragedy. Police officers described
finding dead babies in what was once the second-floor daycare
center at the Murrah Building. In the face of this powerful
testimony, testimonials from McVeigh's Army buddies and the
argument of Stephen Jones that his client was not motivated by
hatred of the victims paled in comparison.
The last two witnesses for the defense probably were its strongest,
Timothy's divorced parents, Bill and Mickey McVeigh. Mickey cried
as she read a statement she had composed the previous night. She
told jurors that Tim was "a child any mother could be proud of; I
still to this day cannot believe he would have caused this
devastation." Bill McVeigh introduced a fifteen-minute videotape
showing his young son meeting Santa Claus, playing with his toy
train, and appearing to be a normal, All-American boy. "I love
Tim," Bill McVeigh said simply.
For two days, the jury discussed McVeigh's fate. On Friday, June
13, 1997, the jury's decision was announced: death. Two months
later, McVeigh returned to Judge Matsch's courtroom to hear the
formal pronouncement of his sentence. Asked by the judge if he
had anything to say, McVeigh quoted from a 1928 dissenting opinion
by Supreme Court Justice Louis Brandeis: "'Our government is the
potent, the omnipresent teacher. For good or ill, it teaches the
whole people by its example.' That's all I have." After Matsch
pronounced the sentence of death, McVeigh was escorted from the
courtroom by federal marshals, to be readied for transport to
Florence, Colorado, the site of a federal prison known as "Supermax."
The Trials of Terry Nichols and
Six months after McVeigh received his
sentence, co-conspirator Terry Nichols escaped a death verdict in his
trial before Judge Matsch. Although found guilty of conspiracy to
bomb a federal building and eight counts of involuntary manslaughter,
the jury acquitted Nichols on charges of using a weapon of mass
destruction and first-degree murder. The jury apparently agreed with
the argument of defense attorney Michael Tigar that Nichols had
decided to drop out of the conspiracy some time before the actual
The fact that Nichols spent April 19,
1995 at home with his family in Kansas probably figured large in the
jury's decision. The jury might also have been swayed by Nichols's
show of remorse--he cried at several points during the testimony--,
which stood in stark contrast to McVeigh's courtroom demeanor. (In
May 2004, Nichols found his life spared a second time, when a jury
deadlocked on his sentence after he had been found guilty in state
court in Oklahoma on 160 charges of first-degree murder.)
In a sixteen-page letter written to
Judge Matsch prior to the imposition of sentence, Nichols wrote, "If I
did anything to contribute to the cause of the Oklahoma City bombing I
am sorry, I'm truly sorry." He implied in his letter that he never
believed McVeigh would actually go through with his bombing plan.
On June 4, 1998, Nichols listened as
Judge Matsch pronounced his sentence: life in prison without parole.
Authorities delivered Nichols to the same Colorado prison that housed
McVeigh and other celebrity inmates including Unabomber Theodore
Kacyznski and the mastermind of the first attack in 1993 on New York's
World Trade Center, Ramzi Yousef. (In a letter to the authors of
American Terrorist, Kacyznski
said he "liked" McVeigh, who he described as "an adventurer by nature"
who, at the same time, was "very intelligent" and expressed ideas that
"seemed rational and sensible.")
Later in 1998, Michael Fortier joined
McVeigh and Nichols at the Supermax. Fortier plead guilty to lying to
federal officials and failing to warn authorities of McVeigh's planned
bombing. He received a twelve-year sentence. (Fortier was released
from prison in January 2006, after serving ten years and six months of
McVeigh's appeals, as expected, met no
success. In September 1999, the Tenth Circuit Court of Appeals
affirmed his conviction. Six months later, the United States Supreme
Court refused to hear his appeal. Authorities moved McVeigh to the
only federal death row (there had been no federal executions since
1963) at a penitentiary at Terre Haute, Indiana in July 1999.
The American public got its first
chance to hear directly from McVeigh in March 2000, when prison
officials allowed Ed Bradley of the CBS show "Sixty Minutes" to
interview him. McVeigh set only one condition for the interview: that
Bradley not ask him whether he bombed the Murrah Building. He still
had last-ditch appeals to think about. In the over thirty-minute
interview, McVeigh offered his thoughts about politics, about his
service in the Gulf War, and about what he perceived to be his unfair
trial. Still, however, he showed no remorse over what happened in
Oklahoma City. He blamed the U. S. government for teaching, through
its aggressive foreign policy and application of the death penalty,
the lesson that "violence is an acceptable option."
In January 2001, McVeigh decided to
drop all his appeals and expedite his own execution. Judge Matsch set
May 16 as the day he would receive a lethal injection. However, just
six days before the scheduled execution, the Justice Department
revealed that it found over 4,000 pages of evidence that should have
been turned over to McVeigh's defense attorneys before trial, but
Attorney General John Ashcroft
announced that McVeigh's execution would be postponed for one month to
allow the defense to inspect the newly released documents. Angered by
what he saw as another example of the government's unfairness, McVeigh
at first decided to renew his appeals, but after his first appeal was
rejected on June 7, McVeigh announced that he was ready to die.
On the evening of June 10, McVeigh had
his last meal (two pints of chocolate chip ice cream). The next
morning, he woke early to take a shower. At 7 a.m., dressed in a
shirt, khaki pants and slip-on shoes, McVeigh was led to the execution
chamber. A "restraint team" strapped him to a padded gurney. The
curtains over glass panels separating the chamber from a viewing area
parted to allow 30 people to directly watch McVeigh's final moments,
while another 300 victims and relatives gathered in Oklahoma City to
watch the event on closed-circuit television.
McVeigh made no final statement, but
instead left a handwritten copy of the poem "Invictus," with its
concluding lines, "I am the master of my fate / I am the captain of my
soul." Warden Harley Lappin read an official statement and then said,
"We are ready." As the drugs entered his veins, McVeigh lifted his
head and made eye contact with witnesses in the viewing room. He was
pronounced dead at 7:14 a.m.
Three months after his execution, on
September 11, 2001, McVeigh lost his claim to having masterminded the
worst terrorist attack in United States history when hijacked
airplanes slammed into the two towers of the World Trade Center.
U.S. v. McVeigh, 918 F.Supp.
1452 (W.D.Okl. 1996)(Media request to unseal documents).
U.S. v. McVeigh, 918 F.Supp. 1467 (W.D.Okl. 1996) (Change of
U.S. v. McVeigh, 923 F.Supp. 1310 (D.Colo. 1996) (Discovery).
U.S. v. McVeigh, 931 F.Supp. 753 (D.Colo. 1996) (Motion to
Stop Trial Audiotape).
U.S. v. McVeigh, 931 F.Supp. 756 (D.Colo. 1996) (Gag Order).
U.S. v. McVeigh, 940 F.Supp. 1541 (D.Colo. 1996) (Motion to
U.S. v. McVeigh, 940 F.Supp. 1571 (D.Colo. 1996) (Motions to
U.S. v. McVeigh, 944 F.Supp. 1478 (D.Colo. 1996) (Motion to
Dismiss DP/Disqualify AG).
U.S. v. McVeigh, 169 F.R.D. 362 (D.Colo. 1996) (Motion for
U.S. v. McVeigh, 954 F.Supp. 1441 (D.Colo. 1997) (Discovery).
U.S. v. McVeigh, 954 F.Supp. 1454 (D.Colo. 1997) (Discovery).
U.S. v. McVeigh, 955 F.Supp. 1278 (D.Colo. 1997) (Motion to
Exclude Lab Testing).
U.S. v. McVeigh, 955 F.Supp. 1281 (D.Colo. 1997) (Motion for
Change of Venue/Continuance).
U.S. v. McVeigh, 958 F.Supp. 512 (D.Colo. 1997) (Separation
U.S. v. McVeigh, 964 F.Supp. 313 (D.Colo. 1997) (Gag Order).
U.S. v. McVeigh, 118 F.Supp.2d 1137 (D.Colo. 2000) (Motion
for New Trial).
U.S. v. McVeigh, 153 F.3d 1166 (10th Cir. 1998)(Direct
Appeal), cert. denied, 119 S.Ct. 1148 (1999).
U.S. v. McVeigh, 2001 WL 611163 (D.Colo. 2001) (Stay of
U.S. v. McVeigh, 106 F.3d 325 10th Cir. 1997) (Separation of
U.S. v. McVeigh, 119 F.3d 806 (10th Cir. 1997) (Motion to
Unseal), cert. denied, 118 S.Ct. 1110 (1998).
U.S. v. McVeigh, 157 F.3d 809 (10th Cir. 1998) (Removing Gag
U.S. v. McVeigh, 9 Fed.Appx. 980 (10th Cir. 2001) (Stay of
Execution - Documents).
UNITED STATES OF AMERICA, Plaintiff-Appellee,
TIMOTHY JAMES McVEIGH, Defendant-Appellant.
United States Court of Appeals
For the Tenth Circuit
Appeal from the United States District Court
for the District of Colorado
Before EBEL,KELLY, and
MURPHY, Circuit Judges.
EBEL, Circuit Judge.
Defendant-appellant Timothy J. McVeigh
("McVeigh") was tried, convicted, and sentenced to death on eleven
counts stemming from the bombing of the Alfred P. Murrah Federal
Building ("Murrah Building") in Oklahoma City, Oklahoma, that resulted
in the deaths of 168 people. McVeigh appeals his conviction and
sentence on the grounds that (A) pre-trial publicity unfairly
prejudiced him, (B) juror misconduct precluded his right to a fair
trial, (C) the district court erred by excluding evidence that someone
else may have been guilty, (D) the district court improperly
instructed the jury on the charged offenses, (E) the district court
erred by admitting victim impact testimony during the guilt phase of
trial, (F) the district court did not allow him to conduct adequate
voir dire to discover juror bias as to sentencing, (G) the district
court erred by excluding mitigating evidence during the penalty phase
that someone else may have been involved in the bombing, (H) the
district court erred by excluding mitigating evidence during the
penalty phase showing the reasonableness of McVeigh's beliefs with
regard to events at the Branch Davidian compound in Waco, Texas, and
(I) the victim impact testimony admitted during the penalty phase
produced a sentence based on emotion rather than reason. We affirm.
At 9:02 in the morning of April 19,
1995, a massive explosion tore apart the Murrah Building in Oklahoma
City, Oklahoma, killing a total of 168 people and injuring hundreds
more. On August 10, 1995, a federal grand jury returned an eleven-count
indictment against McVeigh and Terry Lynn Nichols ("Nichols") charging:
one count of conspiracy to use a weapon of mass destruction in
violation of 18 U.S.C. § 2332a and 18 U.S.C. § 2(a) & (b); one count
of use of a weapon of mass destruction in violation of 18 U.S.C.
§ 2332a and 18 U.S.C. § 2(a) & (b); one count of destruction by
explosives in violation of 18 U.S.C. § 844(f) and 18 U.S.C. § 2(a) &
(b); and eight counts of first-degree murder in violation of 18 U.S.C.
§§ 1111 & 1114 and 18 U.S.C. § 2(a) & (b). On October 20, 1995, the
government filed a Notice of Intent to Seek the Death Penalty. On
December 1, 1995, this court granted a Petition for Writ of Mandamus
by Nichols to recuse Judge Wayne Alley of the Western District of
Oklahoma. In a December 4, 1995, Order, the Chief Judge of this court
designated Chief Judge Richard P. Matsch of the District of Colorado
to preside over future proceedings.
On February 19, 1996, the district
court granted McVeigh's and Nichols' Motion for Change of Venue and
transferred the case to Denver, Colorado. On October 25, 1996, the
district court granted a Motion for Severance by McVeigh and Nichols
and ordered that McVeigh's trial would proceed first. McVeigh's trial
began with voir dire of prospective jurors on March 31, 1997. A jury
of twelve with six alternates was sworn in by the district court on
April 24, 1997, and opening statements commenced that same day. The
government began presenting evidence the following day.
At the guilt phase of trial, which
encompassed twenty-three days of testimony, the government proved the
following set of facts.(1) The destruction of the Murrah
Building killed 163 people in the building and five people outside.
Fifteen children in the Murrah Building day care center, visible from
the front of the building, and four children visiting the building
were included among the victims. Eight federal law enforcement
officials also lost their lives. The explosion, felt and heard six
miles away, tore a gaping hole into the front of the Murrah Building
and covered the streets with glass, debris, rocks, and chunks of
concrete. Emergency workers who reported to the scene made heroic
efforts to rescue people still trapped in the building.
The Murrah Building was destroyed by a
3,000-6,000 pound bomb comprised of an ammonium nitrate-based
explosive carried inside a rented Ryder truck. In the fall of 1994,
McVeigh and Nichols sought, bought, and stole all the materials needed
to construct the bomb. First, on September 30, 1994, and October 18,
1994, McVeigh purchased a total of 4,000 pounds of ammonium nitrate
from the McPherson branch of the Mid-Kansas Cooperative using the
alias "Mike Havens." Second, in October of 1994, McVeigh and Nichols
stole seven cases of Tovex explosives and a box of Primadet
nonelectric blasting caps from the Martin Marietta rock quarry near
Marion, Kansas. Third, on October 21, 1994, McVeigh purchased three
drums of nitromethane at a race track outside of Dallas, Texas. Prior
to the nitromethane purchase, McVeigh had sought bomb ingredients,
including nitromethane, both in person and through the use of a
prepaid telephone calling card under the name "Daryl Bridges." Using
various aliases, McVeigh and Nichols rented a number of storage
lockers in Kansas where they stored the bomb components. In order to
fund their conspiracy, McVeigh and Nichols robbed a gun dealer in
Arkansas in November of 1994.
In a letter to Michael and Lori Fortier
written around September of 1994, McVeigh disclosed that he and Terry
Nichols had decided to take some type of positive offensive action
against the federal government in response to the government's siege
of the Branch Davidians in Waco, Texas in 1993. On a subsequent visit
to their home, McVeigh told the Fortiers that he planned to blow up a
federal building. McVeigh later informed the Fortiers that he wanted
to cause a general uprising in America and that the bombing would
occur on the anniversary of the end of the Waco siege. McVeigh
rationalized the inevitable loss of life by concluding that anyone who
worked in the federal building was guilty by association with those
responsible for Waco.
McVeigh stated that he had figured out
how to make a truck into a bomb using fifty-five-gallon drums filled
with ammonium nitrate combined with explosives stolen from the quarry.
McVeigh demonstrated the shaped charge he intended to use for the bomb
by arranging soup cans on the floor in the same triangle shape in
which he was going to place fifty-five-gallon barrels filled with
ammonium nitrate combined with nitromethane in the truck. McVeigh also
diagramed the truck, barrels, and fusing system on a piece of paper,
and stated that he intended to use a Ryder truck. McVeigh told the
Fortiers that he chose the Murrah Building as the target because he
believed that (1) the orders for the attack at Waco emanated from the
building, (2) the building housed people involved in the Waco raid,
and (3) the building's U-shape and glass front made it an easy target.
On a later trip through Oklahoma City, McVeigh showed Michael Fortier
the Murrah Building, asking Fortier whether he thought a twenty-foot
rental truck would fit in front of the building.
Also, towards the end of 1994, McVeigh
typed a number of letters discussing the justified use of violence
against federal agents as retaliation for the events in Waco. McVeigh
told his sister and one of his friends that he had moved from the
propaganda stage to the action stage in his dispute with the federal
government. McVeigh then warned his sister that "something big" was
going to happen in April, and asked her to extend her April 1995
Florida vacation. He also instructed her not to write to him any more
lest she incriminate herself. The manner in which the bombing was
carried out closely tracked several books bought by McVeigh, which he
often encouraged his friends to read, describing how to make a
powerful bomb mixing ammonium nitrate with nitromethane and
romanticizing self-declared patriots who blow up federal buildings.
McVeigh was familiar with explosives and had detonated a pipe bomb
prior to the attack on the Murrah Building.
From April 14 to 18, 1995, McVeigh
stayed at the Dreamland Motel located in Junction City, Kansas. On
April 14, 1995, McVeigh purchased a 1977 yellow Mercury Marquis from
Junction City Firestone in Junction City, Kansas. While waiting to
take possession of the car from the dealer, McVeigh made a phone call
using the Bridges calling card to Elliott's Body Shop ("Elliott's") in
Junction City, Kansas, seeking a twenty-foot Ryder truck for a one-way
rental to Omaha. McVeigh also called Nichols.
During the search of the blast site,
the FBI located the rear axle of the Ryder truck used to carry the
bomb. The vehicle identification number from the axle matched that of
the Ryder truck rented to McVeigh by Elliott's on April 15, 1995, and
picked up by McVeigh two days prior to the blast. McVeigh rented the
truck under the name "Robert Kling" using a phony South Dakota drivers
license that Lori Fortier had helped McVeigh create.
McVeigh drove to Oklahoma City in the
rented Ryder truck, which he had made into a bomb, parking the vehicle
in front of the Murrah Building and running to the yellow Mercury that
he and Nichols had stashed as a getaway car in a nearby alley a couple
of days before the bombing. A Ford key fitting the Ryder truck was
found in an alley near where McVeigh had told Michael Fortier that the
getaway car would be parked. McVeigh hand-printed a sign inside the
yellow Mercury, "Not Abandoned; Please do not tow; will move by April
23 (Needs Battery & Cable)." McVeigh deliberately parked the car so
that a building would stand between the car and the blast, shielding
McVeigh from the explosion. The bomb then exploded.
Just 77 minutes after the blast,
Oklahoma State Trooper Charles Hanger ("Hanger") stopped the yellow
Mercury driven by McVeigh because the car had no license tags. The
stop occurred between mile markers 202 and 203 on Interstate 35, just
before the exit for Billings, Oklahoma, precisely 77.9 miles north of
the Murrah Building. Before he was stopped by Hanger, McVeigh was
headed northbound away from Oklahoma City towards Kansas. A person
driving the posted speed limit would have reached the point of the
stop 75 minutes after leaving the Murrah Building. If McVeigh had left
the Murrah Building right after the bombing, he would have arrived at
the Billings exit around 10:17 a.m., the approximate time of the stop.
Hanger arrested McVeigh upon
discovering that he was carrying a concealed, loaded gun. Hanger
transported McVeigh to Noble County Jail in Perry, Oklahoma, where
McVeigh was booked and incarcerated for unlawfully carrying a weapon
and transporting a loaded firearm. Noble County authorities took
custody of McVeigh's clothing and property, including earplugs, and
issued him prison garb. Two days later, on April 21, 1995, the federal
government filed a Complaint against McVeigh for unlawful destruction
by explosives. Oklahoma then transferred McVeigh to federal custody on
the federal bombing charges. An FBI test performed later found that
McVeigh's clothing and the earplugs contained explosives residue,
including PETN, EGDN, and nitroglycerine chemicals associated with
the materials used in the construction of the bomb.
A subsequent inventory search of the
yellow Mercury uncovered a sealed envelope containing documents
arguing that the federal government had commenced open warfare on the
liberty of the American people and justifying the killing of
government officials in the defense of liberty. Finally, three days
after the arrest, Hanger found a Paulsen's Military Supply business
card on the floor of his cruiser bearing McVeigh's fingerprints.
McVeigh had written on the back of the card, "TNT @ $5/stick Need
more" and "Call After 01, May, See if I can get some more."
Closing arguments were made on May 29,
1997, and the district court charged the jury on May 30, 1997. On June
2, 1997, after four days of deliberations, the jury returned guilty
verdicts on all eleven counts charged in the Indictment. The penalty
phase of trial commenced on June 4, 1997, and concluded with
summations and jury instructions on June 12, 1997. The jury
deliberated for two days before returning special findings
recommending that McVeigh be sentenced to death. After denying
McVeigh's motion for a new trial, the district court accepted the jury
recommendation on August 14, 1997, sentencing McVeigh to death on all
eleven counts. McVeigh filed a timely notice of appeal that same day.
We have jurisdiction pursuant to 28 U.S.C. § 1291, 18 U.S.C.
§§ 3742(a) & 3595, and Fed. R. App. P. 4(b).
A. PRETRIAL PUBLICITY
McVeigh claims that he was denied due
process of law under the Fifth Amendment and his right to trial by an
impartial jury under the Sixth Amendment because the jury pool was
flooded with negative pretrial publicity, especially media reports
that he had confessed to his lawyers that he had committed the
Oklahoma City bombing. McVeigh argues that the pretrial publicity
amounted to both presumed and actual prejudice.
1. Standard of Review
The two different types of prejudice
claimed by McVeigh are subject to different standards of review.
Presumed prejudice requires this court to evaluate the complained-of
publicity, as well as the circumstances surrounding that publicity,
and to determine whether a reasonable juror exposed to such publicity
could remain impartial, or whether the publicity was of such a nature
as to render impartiality impossible. See Sheppard v.
Maxwell, 384 U.S. 333, 351-52 (1966); United States v. Abello-Silva,
948 F.2d 1168, 1176-77 (10th Cir. 1991). The court of appeals
undertakes this review of the overall circumstances of the publicity
de novo. See Sheppard, 384 U.S. at 362.
A claim of actual prejudice is
subjected to a more deferential standard of review. See
Stafford v. Saffle, 34 F.3d 1557, 1567 (10th Cir. 1994); Abello-
Silva, 948 F.2d at 1177. The determination of whether the seated
jury could remain impartial in the face of negative pretrial publicity,
and the measures that may be taken to ensure such impartiality, lay
squarely within the domain of the trial court. See Mu'Min v.
Virginia, 500 U.S. 415, 427 (1991); Patton v. Yount, 467
U.S. 1025, 1039 (1984); Stafford, 34 F.3d at 1567. Therefore,
we review the trial court's rulings in this regard for abuse of
discretion. See Mu'Min, 500 U.S. at 427; Abello-Silva,
948 F.2d at 1177.
As with the bombing itself, news of
McVeigh's arrest received a great deal of attention in the media, and
was ubiquitously reported on television, radio, and in print. The
image of McVeigh being led, wearing orange jail clothing, through an
angry crowd into a van by authorities appeared in print and electronic
media nationwide. See United States v. McVeigh, 918 F.
Supp. 1467, 1471 (W.D. Okla. 1996). In its ruling granting McVeigh's
motion for change of venue the district court noted that it had
considered the alternative of moving the trial to Tulsa, Oklahoma, but
because of the intensity of the emotional impact of the bombing, and
its attendant publicity, on all Oklahomans, it would be impossible for
McVeigh to receive a fair jury trial anywhere in the State of
Oklahoma. See id. at 1470-74. The district court decided
to move the trial to Denver, a large metropolitan area where a "large
jury pool is available." See id. at 1474. In this ruling
the district court implicitly found that the Denver jury pool was not
as intensely affected by the bombing or the subsequent publicity as
was the Oklahoma jury pool.
On February 14, 1997, the district
court sent out jury summons to hundreds of people living in the Denver
area, notifying them that they had been randomly selected as potential
jurors for the McVeigh trial. The notification admonished its
recipients to avoid publicity concerning the case that might interfere
with their ability to remain impartial. The notification advised the
potential jurors that "[t]here have been many things written and said
about the explosion in Oklahoma City. Much of it may be speculation,
rumor and incorrect information." The notification further stressed
the need for all potential jurors to be impartial and willing to base
their decision solely on the law and the evidence. The notification
concluded with a short, preliminary questionnaire which included a
question asking if "there is any . . . reason that would prevent you
from serving on this jury."
Two weeks later, on February 28, the
Dallas Morning News published an article on its Internet home page
claiming that it was in possession of internal, confidential defense
documents that revealed McVeigh had confessed to his own lawyers that
he had indeed bombed the Murrah Building in Oklahoma City. See
Pete Slover, McVeigh saw 'body count' as best way to make statement
in Oklahoma City bombing, defense reports state, (visited Feb. 28,
1997) <http://www.dallasnews.com/texas-southwest/tsw72-NF.htm>. This
story was picked up and reported by both the national and Denver news
media. According to the reports, McVeigh had told his lawyers that he
deliberately set off the bomb during the daytime in order to obtain a
higher "body count"; that he had committed the bombing out of a desire
to make a point to the federal government, presumably that the
government mishandled the 1993 siege of the Branch Davidian compound
near Waco, Texas; and that he was assisted in the bombing by Terry
Nichols, with whom McVeigh had participated in a number of robberies
in order to obtain money and supplies needed to create the bomb.
On March 4, a chambers conference was
held at which the court and parties discussed this development and
whether the trial date, originally set for March 31, should be delayed.
At this conference, McVeigh's counsel told the court that McVeigh did
not want a continuance, but rather desired to go forward with voir
dire and seating a jury.(2)
On March 11, Playboy Magazine
published on its Internet web site an article that claimed to contain
information from documents "lawfully obtained" from McVeigh's counsel.
See Ben Fenwick, The Road to Oklahoma City (visited
March 11, 1997) <http://www.Playboy.com/mcveigh/index.html>. This
article differed from the Dallas Morning News article mainly in
the scope of detail with which it describes McVeigh's alleged
activities during the time leading up to the bombing and the alleged
motivation for the crime. See id. As with the Dallas
Morning News story, information contained within the Playboy
article was widely disseminated in the national media, as well as in
the Denver media. Soon after this, McVeigh filed a motion to dismiss
the indictment or, in the alternative, to postpone the trial for a
minimum of one year, due to the "presumed effects of recent
publication . . . of stories" that McVeigh had made incriminating
statements. United States v. McVeigh, 955 F. Supp. 1281, 1281
(D. Colo. 1997). The district court dismissed this motion, holding
that "fair-minded persons" would not be "so influenced by anything
contained in this recent publicity" that they could not remain
impartial. Id. at 1283.
On March 19, 352 prospective jurors
were summoned to the Jefferson County Fairgrounds to fill out an
extended questionnaire. Before filling out the questionnaire the court
commented that news reports of events are often inaccurate, that most
people remain skeptical about such reports, and admonished the
potential jurors to set aside all publicity surrounding the case as
well as any "impressions or opinions" that they may have formed based
upon media reports. The court also observed that the constitutional
right to a fair trial "depends on the willingness of citizens to
decide the case based entirely on the evidence that they see and hear
at the trial . . . . That requires a commitment to set aside any
preconceived impressions or opinions." After the potential jurors had
completed the questionnaires, the court informed them that from that
moment on they were required to follow "the same instructions that
will be given to the jury selected in this case." The court ordered
the prospective jurors "beginning right now to avoid any news reports
of any kind or any communication or publication of any kind that
concerns any issues related to the charges in this case."
McVeigh filed an interlocutory writ of
prohibition with this court seeking an order "directing the district
court to continue the trial for an indefinite period on grounds of
prejudicial pretrial publicity." In re McVeigh, No. 97-1117, at
1 (10th Cir. Mar. 28, 1997) (unpublished order). We denied his
petition, holding that because voir dire had not yet taken place any
ruling on pretrial publicity was premature, given the trial court's "broad
discretion in gauging the effects of allegedly prejudicial publicity
and in taking responsive measures to ensure a fair trial." Id.
Voir dire commenced on March 31. Four
of the seated jurors indicated either on the questionnaire or during
voir dire that they had seen headlines or casually overheard reports
of McVeigh's alleged confession, but in each case they indicated that
their exposure was only superficial and that they were skeptical of
the accuracy of the report. None of the rest of the seated jurors
indicated that they had even heard about the alleged confession. Each
of the seated jurors affirmed that he or she could remain impartial
and decide the case based only on the facts presented in court.
a. Presumed Prejudice
As this court has held, the claim of
presumed prejudice is "rarely invoked and only in extreme situations."
Abello-Silva, 948 F.2d at 1177; see also Nebraska
Press Ass'n v. Stuart, 427 U.S. 539, 551-54 (1976). Moreover, "[t]he
defendant bears the burden of establishing that prejudice should be
presumed." Stafford, 34 F.3d at 1566.
In order for the reviewing court to
reach a presumption that inflammatory pretrial publicity so permeated
the community as to render impossible the seating of an impartial jury,
the court must find that the publicity in essence displaced the
judicial process, thereby denying the defendant his constitutional
right to a fair trial. See Sheppard, 384 U.S. at 342-45,
352-57 (noting that "bedlam reigned at the courthouse during the trial"
due to media's intrusive and pervasive presence in the courtroom,
inflammatory news reports, often broadcast live from the courtroom,
and media hounding of jurors and the defendant); Estes v. Texas,
381 U.S. 532, 577-80 (1965) (Warren, C.J., concurring) (media invasion
of courtroom pierced the constitutional shield normally provided to
the defendant by destroying "the dignity and integrity of the trial
process"); Rideau v. Louisiana, 373 U.S. 723, 725-27 (1963) (repeated
broadcast in defendant's small community of defendant's video taped "confession"
to local authorities resulted in a "kangaroo court" that derailed due
process and quashed any hope of fair trial in that locale); see
also Stafford, 34 F.3d at 1566 (evaluating, on the issue of
presumed prejudice, whether there was evidence of a "circus atmosphere
or lynch mob mentality"); Abello-Silva, 948 F.2d at 1177 ("In
cases like Estes, Rideau, and Sheppard, prejudice
was presumed because the news media influence pervaded the proceedings,
igniting extensive prejudice in the community.") (quotation omitted).
In such cases, we simply cannot rely on "'jurors' claims that they can
be impartial'" and declare the publicity to be prejudicial as a matter
of law. Mu'Min, 500 U.S. at 429 (quoting Patton, 467
U.S. at 1031).
However, the bar facing the defendant
wishing to prove presumed prejudice from pretrial publicity is
extremely high. See Stafford, 34 F.3d at 1566 ("[Defendant]
must establish that 'an irrepressibly hostile attitude pervaded the
community.' This is a difficult standard, even in cases in which there
has been extensive media coverage . . . .") (quoting Abello-Silva,
948 F.2d at 1176); see also Coleman v. Kemp, 778
F.2d 1487, 1537 (11th Cir. 1985) ("[T]he presumptive prejudice
standard recognized in Rideau is only rarely applicable, and is
reserved for an extreme situation. In short, the burden placed upon
the petitioner to show that pretrial publicity deprived him of his
right to a fair trial before an impartial jury is an extremely heavy
one.") (quotations and citations omitted); United States v. Cooper,
464 F.2d 648, 655 (10th Cir. 1972) ("'[T]he mere fact of unfavorable
publicity does not of itself raise a presumption of prejudice . . . .
The prejudice must have manifested itself so as to corrupt due process.'")
(quoting Dennis v. United States, 302 F.2d 5, 8 (10th Cir.
1962)). Indeed, despite the proliferation of the news media and its
technology, the Supreme Court has not found a single case of presumed
prejudice in this country since the watershed case of Sheppard.
McVeigh's claim of presumed prejudice
fails to clear this high hurdle. The circumstances that led the Court
to presume prejudice in Sheppard, Estes, and Rideau
simply do not exist in this case. First, McVeigh's attempt to show
presumed prejudice is substantially weakened by the fact that, unlike
the defendants in Sheppard and Rideau, he did receive a
change in venue, removing his trial from the eye of the emotional
storm in Oklahoma to the calmer metropolitan climate of Denver. Second,
mere television images of the defendant in prison garb being led
through an angry crowd do not come close to the type of inflammatory
publicity required to reach the disruptive force seen in Sheppard,
Estes, and Rideau. For this reason, we focus, as does
McVeigh in his briefs before this court, mainly on the prejudicial
effect on the Denver jury pool of the publication of reports that
McVeigh confessed the crime to his attorneys.(3)
The disclosure and publication of
information obtained from documents purporting to contain confidential
communications between an individual and his attorneys indicates a
lack of self-restraint and ethical compass on the part of those
individuals responsible for doing so. However, the fact that McVeigh's
attorneys denied the validity of the confessions gave rise to publicly
aired doubts of the accuracy of the reports, a fact that somewhat
lessened the reports' prejudicial impact on the public mind. Indeed,
the Dallas Morning News Internet article includes in its
headline the following words: "Suspect's attorney disputes reliability
of documents." Unlike Rideau, here there was no video taped
broadcast of an actual confession. Nor was there a reproduction of a
printed confession signed by McVeigh. In short, the publicity here did
not contain an actual confession but only the second-hand or perhaps
even third-hand or more unattributed hearsay report of a confession.
Such an indirect report of a confession will have far less impact than
the situation where the actual confession is broadcast. Cf.
Mu'Min, 500 U.S. at 418, 430-31 (press reports of "indications
that [defendant] had confessed" did not preclude seating of an
unbiased jury); Patton, 467 U.S. at 1029, 1040 (same). The
hearsay nature of the reports of McVeigh's confession, the publicized
denial of the accuracy of those reports, the strong admonitions given
by the court both before and after the publicity about the purported
confession, the fact that a large number of the venirepersons summoned
were not even aware of the reports of McVeigh's alleged confession,
and the change of venue, all persuade us that the pretrial publicity
of which McVeigh complains in this case did not "manifest[ ] itself so
as to corrupt due process." Cooper, 464 F.2d at 655. Thus, it
does not warrant a presumption of prejudice.(4)
b. Actual Prejudice
In reviewing for actual prejudice, we
examine the circumstances of the publicity and the voir dire, and
merely determine "whether the judge had a reasonable basis for
concluding that the jurors selected could be impartial." Abello-Silva,
948 F.2d at 1177-78 (quotation omitted). Moreover:
Impartiality does not mean jurors are
totally ignorant of the case.
Indeed, it is difficult to imagine how
an intelligent venireman could be completely uninformed of significant
events in his community. "It is sufficient if the juror can lay aside
his impression or opinion and render a verdict based on the evidence
presented in court."
Id. (quoting Irvin v. Dowd,
366 U.S. 717, 723 (1961)). What we must decide here is whether the
district court abused its discretion in determining that the seated
jury could disregard the adverse pretrial publicity and render an
We do not believe that the district
court abused its discretion. Here, the district court went to great
lengths to admonish all potential jurors to ignore the publicity
surrounding the issues of the case. In fact, McVeigh does not argue
that the district court failed to take strong measures to ensure juror
impartiality, but rather takes the position that the district court's
admonitions had the unintended effect of increasing the jury pool's
interest in publicity about the case and informed potential jurors of
the answers that would be expected of them if they hoped to get on the
jury. The assertion that the court's admonitions had the unintended
effect of increasing the venirepersons' interest in publicity may be
tested by asking if an abnormally large number of venirepersons
indicated having knowledge of the alleged confession. To the contrary,
a significant number of venirepersons indicated that they had not
heard the news of McVeigh's alleged confession, suggesting that the
court's earlier admonitions to avoid publicity associated with the
case had the desired effect.(6) McVeigh's claim that the
court's admonitions served to instruct already prejudiced would-be
jurors how to mask that prejudice in order to get onto the jury calls
for pure speculation. We could equally speculate that the court's
admonitions that it is normal for people to be affected by publicity,
and that a "good juror" is expected to put any conclusions based upon
that publicity aside might encourage those who had formed an opinion
based upon pretrial publicity to disclose that fact without fear of
shame and to encourage them to agree to set those opinions aside.
McVeigh's claim fails.
Moreover, each of the seated jurors in
this case was asked if he or she could put aside media reports and
decide the case only on evidence presented in court. Each responded
that he or she could. Voir dire was by no means a hurried affair; each
seated juror's voir dire accounted for an average of forty-eight
transcript pages, or a period of an hour or so. The members of the
jury pool were subjected to two screening questionnaires, individual
questioning by the court, and questioning by counsel for both the
government and McVeigh. Questioning by the court and the parties goes
a long way towards ensuring that any prejudice, no matter how well
hidden, will be revealed.
Finally, each of the four seated jurors
who mentioned having heard something about McVeigh confessing also
unequivocally stated that he or she nonetheless could keep an open
mind about the case and would adjudicate it on its merits. Granted,
the fact that potential jurors declare that they can remain impartial
in the face of negative pretrial publicity is not always dispositive
of the question. See Irvin, 366 U.S. at 727-28.(7)
However, we give due deference to jurors' declarations of impartiality
and the trial court's credibility determination that those
declarations are sincere. See Mu'Min, 500 U.S. at
420-21, 431-32; Patton, 467 U.S. at 1036-40; Stafford,
34 F.3d at 1567-68; Abello-Silva, 948 F.2d at 1177-78;
Cummings v. Dugger, 862 F.2d 1504, 1510 (11th Cir. 1989). Unlike
an appellate court, the trial court has the opportunity to make a
first-hand evaluation of a juror's demeanor and responsiveness to voir
dire questions in deciding impartiality issues. See Rosales-Lopez
v. United States, 451 U.S. 182, 188-89 (1981) (plurality opinion).
Because the district court repeatedly
stressed the importance of avoiding the pretrial publicity concerning
the case, because each of the seated jurors was individually
questioned about his or her ability to set aside the effects that any
exposure to pretrial publicity may have had, because each juror
declared that he or she could remain impartial and decide the case on
its merits, and because the district court was satisfied that each
juror seated was sincere in that declaration, we hold that the
district court did not abuse its discretion in determining that this
jury could and would decide the case in a fair and impartial manner.
B. JUROR MISCONDUCT
McVeigh contends that one of the jurors
committed misconduct by deciding his guilt before the case was
submitted to the jury. In analyzing this issue, we must decide two
questions: first, whether the district court erred in not holding a
hearing on this allegation of juror misconduct, and second, whether
the district court erred in not dismissing the juror for the alleged
1. Standard of Review
The government has suggested that we
review for plain error the question whether the district court should
have held a hearing on the allegations of juror misconduct because the
defense did not specifically request a hearing but instead asked only
that the juror be excused. However, during a conference with counsel
the court made it plain that it would not hold a hearing. Under the
circumstances, the defense was not obligated to ask for a hearing.
Consequently, we review for abuse of discretion the court's decision
on how to handle the allegation of juror misconduct. See
United States v. Bornfield, 145 F.3d 1123, 1132 (10th Cir. 1998);
United States v. Bradshaw, 787 F.2d 1385, 1390 (10th Cir.
We also review for abuse of discretion
the question whether this juror should have been excused from service.
See Anderson v. Dun & Bradstreet, Inc., 543 F.2d 732,
734 (10th Cir. 1976). However, the decision whether to excuse a juror
rests on whether the juror can remain impartial, a matter of fact
uniquely within the observation of the trial court. See
United States v. Barone, 114 F.3d 1284, 1307 (1st Cir.), cert.
denied, 118 S. Ct. 614 (1997).
During the morning of Monday, May 12,
1997, an alternate juror reported to the Clerk of the district court
the substance of a discussion that had taken place in the jury room
the previous Friday, May 9. The jurors had been conversing about who
might be the alternates, and one juror said, "I hope I'm not the hold-out
juror." In response, another juror said, "It wouldn't be very hard. I
think we all know what the verdict should be."(8)
At the noon recess, after receiving the
Clerk's report of the conversation, the judge gave the following
instructions to the jury:
Members of the jury, we're going to
recess again as usual for the hour-and-a-half lunch period. And I want
to reemphasize what I've been saying each time when we recess about
the extreme importance here of each of you maintaining an open mind
with respect to the case and all aspects of it.
I know that at times that's difficult
to do, because you're together and we keep you in a relatively
confined area. And naturally, you talk about a lot of things,
sometimes lightheartedly, bantering about this and that. And I suppose
sometimes it's tempting to talk about the case and where we are in the
case, what progress we have or have not made, when it may be given to
you for decision.
All of those things are off limits, and
I want you to know that. I can't tell you where we are in the case.
This isn't a computer program. This is a human event, a trial. We
can't tell you how long particular witnesses will be. And you can't at
this point and nobody else can fit the testimony of any one
witness into the case as a whole. Remember that we are hearing
witnesses called by the Government. Defense has an opportunity to call
witnesses. Some witnesses may seem to you as we go along more
important than others. Don't let that happen, even in your own
thinking. You have got to, every time we break here, put it at rest.
The reason for these breaks in part, of
course, is of course to take lunch but also to give you some time to
relax. Don't use that time to talk about anything in connection with
this case. Don't speculate about it. Don't talk about it. Keep open
minds. If you don't, you're violating the oath that you've taken to
decide this case based on all of the evidence presented to you.
So even in jest, say nothing about in
case [sic] among yourselves.
At the end of the day's proceedings,
the judge again cautioned the jury, saying:
Members of the jury, we're going to
recess, as usual, this being 5:00; and again, during the time of this
recess, of course, you must be very careful to avoid anything that may
appear in radio, television, newspapers, magazines, whatever,
concerning the trial, today's testimony, anything that relates to the
trial, knowing, of course, the importance of your holding true to your
oath to be able to decide this case based on what happens in this room
and also hold true to your obligation to keep open minds until you've
heard it all. You recall back as long ago as the time that we talked
with you during jury selection of the importance of this, and we have
to hold you to that and your honor in following that. You're on an
And, you know, the honor system is all
that I can rely on so that I don't sequester you. So it's very
important. And a part of the honor system is that if any of you
violate that in any way, others of you will tell me about it.
After the jury had been dismissed for
the day, the judge then held a conference with counsel and informed
them of the juror's report. The defense moved that the juror who
commented "I think we all know what the verdict should be" be stricken
from the jury. The government said it was satisfied with the court's
curative instructions. It suggested, however, that if the court felt
further measures were necessary it should first "call in" the juror.
The court decided not to hold a hearing on the allegation and
effectively denied the defense's motion to strike the juror.
a. Should the district court have held a
McVeigh first contends that the
district court abused its discretion when it refused to hold a hearing
on the alternate juror's allegations. Although this is a fairly close
question, we conclude that the district court's refusal to hold a
hearing was not an abuse of discretion.
As the case law makes evident, there
are varying degrees of juror misconduct. The most serious cases of
misconduct involve extraneous influences on the jury, such as jurors
becoming privy to prejudicial information not introduced into evidence
or having improper contacts with parties, witnesses, or third parties.
See United States v. Resko, 3 F.3d 684, 690 (3d Cir.
1993); see also Fed. R. Evid. 606(b) (allowing juror to testify
after verdict only on question whether extraneous information was
brought to jury's attention); United States v. Wacker, 72 F.3d
1453, 1466 (10th Cir. 1995) (doubting that presumption of prejudice
which applies to extraneous contacts would apply to communications
among venirepersons). Generally, allegations of extraneous influences
require the district court to hold a hearing. See Remmer v.
United States, 347 U.S. 227, 229-30 (1954); United States v.
Thompson, 908 F.2d 648, 651 (10th Cir. 1990); United States v.
Hornung, 848 F.2d 1040, 1045 (10th Cir. 1988). However, even in
cases involving such allegations, we have held that on rare occasions
it is within the district court's discretion to refuse to hold a
hearing when it can clearly be established that a hearing would not be
useful or necessary. See United States v. Davis, 60 F.3d
1479, 1483-84 (10th Cir. 1995) (hearing unnecessary when district
court already had sufficient facts to know the extent of the
extraneous contact); United States v. Rosales, 680 F.2d 1304,
1306 (10th Cir. 1981) (no abuse of discretion to decline to hold a
hearing when there was no evidence that any juror other than the one
discharged heard the extraneous remarks).
Unlike cases concerning extraneous
influences, this case involves an allegation of intrajury misconduct,
specifically the allegation that a juror had reached a premature
conclusion regarding McVeigh's guilt. Although premature discussions
among jurors may prejudice the defendant, see Resko, 3
F.3d at 689-90, intrajury misconduct generally has been regarded as
less serious than extraneous influences on the jury. See
United States v. McClinton, 135 F.3d 1178, 1186 (7th Cir.),
cert. denied, 118 S. Ct. 2308 (1998), petition for cert. filed
(U.S. June 30, 1998) (No. 98-5078); United States v. Williams-Davis,
90 F.3d 490, 505 (D.C. Cir. 1996), cert. denied, 117 S. Ct.
986, 988 (1997); United States v. Bertoli, 40 F.3d 1384, 1394
(3d Cir. 1994); Resko, 3 F.3d at 690; United States v.
Tierney, 947 F.2d 854, 869 (8th Cir. 1991); United States v.
Harris, 908 F.2d 728, 733 (11th Cir. 1990); United States v.
Webster, 750 F.2d 307, 338-39 (5th Cir. 1984). Consequently, an
allegation of intrajury misconduct may or may not warrant a hearing.
See Bradshaw, 787 F.2d at 1389-90 (declining to adopt
per se rule that a hearing was required and finding no abuse of
discretion in declining to hold a hearing); see also United
States v. Abrams, 137 F.3d 704, 708 (2d Cir.) (per curiam)
(holding no abuse of discretion in dealing with alleged intrajury
misconduct by means of a curative instruction rather than a hearing
and noting the risk that a hearing might unduly emphasize the problem),
petition for cert. filed, 66 U.S.L.W. 3791 (U.S. May 26, 1998)
(No. 97-1979); United States v. Stafford, 136 F.3d 1109, 1112
(7th Cir.) (same), petition for cert. filed (U.S. June 8, 1998)
(No. 97-9408); Harris, 908 F.2d at 733-34 (deferring to trial
judge's decision in one instance to hold only a limited hearing and in
another not to hold a hearing due to ambiguity of juror remarks);
United States v. Read, 658 F.2d 1225, 1241 (7th Cir. 1981) (strong
cautionary instruction to jury that had seemingly made up its mind
prior to conclusion of trial was proper exercise of discretion);
United States v. Panebianco, 543 F.2d 447, 457 (2d Cir. 1976).
"Courts face a delicate and complex
task whenever they undertake to investigate reports of juror
misconduct or bias during the course of a trial." United States v.
Thomas, 116 F.3d 606, 618 (2d Cir. 1997). In determining whether
the allegation is sufficiently serious to warrant a hearing, the
district court must consider "the content of the allegations,
including the seriousness and likelihood of the alleged bias, and the
credibility of the source." United States v. Jones, 707 F.2d
1169, 1173 (10th Cir. 1983) (citation omitted). Ultimately, the court
must weigh the benefits of having a hearing, including the ability
perhaps to ascertain more fully the extent and gravity of the possible
prejudice, against the risks inherent in interrupting the trial and
possibly placing undue emphasis on the challenged conduct. See
Bertoli, 40 F.3d at 1395; Harris, 908 F.2d at 734;
United States v. Chiantese, 582 F.2d 974, 980 (5th Cir. 1978).
Here, the district court already knew
much of the information that a hearing would have provided, including
who made the statement, what was said, and the general circumstances
surrounding the statement. Cf. Resko, 3 F.3d at 690-91
(holding that the district court abused its discretion in failing to
hold a hearing where the presence or absence of juror prejudice could
not be determined on the existing record). The only facts that the
judge did not know here was what exactly the juror meant by the
statement, who overheard the statement, and how it was interpreted by
any juror who may have overheard it. These are admittedly important
considerations. However, in United States v. Day, 830 F.2d
1099, 1104 (10th Cir. 1987), we held that a district court "armed only
with the undisputed content of the conversation . . . had an adequate
basis to find, as a matter of law, that no prejudice resulted" without
having examined the juror who participated in the conversation.
Here, several factors probably
influenced the district court in its decision not to hold a hearing,
but rather to address the problem with strong curative instructions.
Foremost, such a proceeding may have drawn undeserved attention to the
remark. Further, the court, from its own observations, was under the
impression that the juror who allegedly made the remark generally
followed the court's instructions and typically nodded his head in
agreement while instructions were given, so that the court's
alternative remedy of giving strong curative instructions was
reasonably calculated to correct the problem. We are less likely to
find an abuse of discretion where a district court implements
reasonably effective alternative measures even though it does not hold
a hearing. See Abrams, 137 F.3d at 708-09; Read,
658 F.2d at 1241; Panebianco, 543 F.2d at 457. The district
court's curative instructions reminded the jurors that they had the
duty to report any juror misconduct. The record does not suggest that
the court received any further reports of misconduct, so it would
appear that the instructions were effective.
We hold that under these circumstances
the district court did not abuse its discretion in declining to hold a
hearing on the allegation of juror misconduct. As a caveat to the
courts of this circuit, though, we note that "[w]hen a party's
suggestion that a jury is biased is not frivolous, the district court
ordinarily should undertake an adequate inquiry into the questions of
whether the bias actually existed and whether it was prejudicial."
Bradshaw, 787 F.2d at 1390 (quotation omitted). Here, holding a
hearing would have been preferable so that the record would be clear
whether the juror even made the comment, and if so, what he meant by
it and who heard it. However, we are limited to reviewing the district
court's decision for abuse of discretion, rather than de novo, and
thus we decline to find reversible error.
b. Should the juror have been excused?
Regardless of whether it held a hearing,
the district court also had to decide whether the juror was so tainted
as to deny the defendant his constitutional right to an impartial jury.
See Davis, 60 F.3d at 1484.
The remark "I think we all know what
the verdict should be" is on its face ambiguous. The district court
interpreted the comment as a non-serious remark, but the statement may
also reflect a premature conclusion regarding McVeigh's guilt. In any
event, the very ambiguity of the remark is a reason to defer to the
trial court's superior ability to evaluate the demeanor and conduct of
the juror in gauging impartiality. See Harris, 908 F.2d
at 734. On this record, we cannot find that the trial court was
clearly erroneous in concluding that, upon receiving the curative
instructions, the members of the jury remained impartial. See
Wacker, 72 F.3d at 1467; Read, 658 F.2d at 1241. Thus,
we find no abuse of discretion in allowing the juror to remain seated.
C. EVIDENCE OF ALLEGED ALTERNATIVE
McVeigh challenges the district court's
decision to exclude two lines of evidence that McVeigh argues would
suggest that persons connected with a white-supremacist, anti-government
organization in Stillwell, Oklahoma, known as "Elohim City," were
involved in the conspiracy to destroy the Murrah Building. McVeigh
contends that the district court abused its discretion(9)
when it excluded as "not sufficiently relevant" both the proffered
testimony from Carol Howe ("Howe"), an undercover government informant
at Elohim City, and other proffered evidence that McVeigh argues would
have shown the government suspended its independent investigation of
Elohim City in the wake of McVeigh's arrest.
McVeigh argues that this ruling was
based solely on the relevance standard of Rule 401. The government,
however, argues that the court's ruling incorporates both the
relevance standard of Rule 401 and the balancing required in Rule 403.
The text of the court's ruling appears to favor the government's
position, indicating that the court found some "relevance" under Rule
401, but not enough to be "sufficient" under Rule 403.
1. Standard of review
Generally, we review a district court's
ruling on the relevance and potential prejudice of proffered evidence
under the abuse-of-discretion standard. See United States v.
Call, 129 F.3d 1402, 1405 (10th Cir. 1997), cert. denied,
118 S. Ct. 2064 (1998). Furthermore, this circuit has never found a
per se abuse of discretion simply because a trial court failed to make
explicit, on-the-record findings for a decision under Federal Rule of
Evidence 403 other than when the disputed evidence is offered pursuant
to one of the specialized character evidence rules.(10)
See generally Navarro de Cosme v. Hospital Pavia, 922 F.2d
926, 931 (1st Cir. 1991) (explaining that "it is understood that in
Rule 403 decisions explicit findings need not always be made") (quotation
omitted); 22 Charles Alan Wright & Kenneth W. Graham, Jr., Federal
Practice & Procedure § 5224, at 321 (1978) (noting that on-the-record
findings are not required by Rule 403, but encouraged by commentators).
See also Brown v. Southeastern Penn. Transp. Auth. (In re
Paoli R.R. Yard PCB Litig.), 113 F.3d 444, 457 n.8 (3d Cir. 1997)
(holding that Rule 403 "normally require[s] a district court to make
explicit its reasoning," and that the rule imposes an "obligation" on
trial courts "to perform this weighing process on the record," but
excusing the lack of explicit findings in that case because of the
procedural posture in which the court's ruling occurred).
Although the trial court should, of
course, always make explicit findings to support its Rule 403 rulings,
there may be occasions when the record is such that we can do our own
de novo balancing of the Rule 403 factors without requiring a remand
of that issue to the district court. See, e.g., Glass v.
Philadelphia Elec. Co., 34 F.3d 188, 191 (3d Cir. 1994) (holding
that when a trial court fails to articulate its balancing of
probativity and prejudice under Rule 403, an appellate court may,
under appropriate circumstances, either "decide the trial court
implicitly performed the required balance; or, if we decide the trial
court did not, we undertake to perform the balance ourselves") (quotation
omitted); Black v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573,
587 (6th Cir. 1994); see also United States v. Graham,
83 F.3d 1466, 1473 (D.C. Cir. 1996), cert. denied, 117 S. Ct.
Here, the district court failed to make
an explicit record of its balancing of the Rule 403 factors. However,
we may conduct a de novo balancing because the record contains a
colloquy between the court and counsel that sheds considerable light
on how the district court viewed the evidence. We conclude that even
if there was probative value to McVeigh's proffered evidence, it was "substantially
outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury. . . ." See Fed. R. Evid. 403. Thus,
there was no error in excluding such evidence.
Near the end of the trial's guilt phase,
McVeigh's defense counsel made an oral proffer during an in-chambers
hearing concerning the defense's evidence of alternative perpetrators.
This proffer focused on Howe's expected testimony concerning her
various visits to Elohim City in 1994-1995.
Howe allegedly would have testified
that during her trips to Elohim City, she met Dennis Mahon ("Mahon"),
one of Elohim City's leaders, and that Mahon was a violent opponent of
the federal government. Howe would have testified that Mahon
instructed her in the preparation of napalm and had shown her various
bomb components at Elohim City, including a tap, green fuse, black
powder, bolts, a funnel, and a grenade shell. Mahon also discussed the
availability and cost of the explosive Semtex, as well as his
experience in building and exploding a 500-pound ammonium nitrate bomb
under a truck in Michigan.
Howe's proffered testimony also
promised to discuss Andreas Strassmeir ("Strassmeir"), another leader
at Elohim City, who allegedly discussed acquiring bomb components for
Elohim City. Howe was to testify that Mahon and Strassmeir had
discussed targeting a federal building in either Oklahoma City or
Tulsa, or an IRS building. Howe also was to testify about the
appearance at Elohim City in the spring of 1995 of James Ellison, who
had developed plans to bomb the Murrah Building in 1983 before he was
imprisoned on unrelated charges. Furthermore, Howe would have
testified about the affinity of the Elohim City members for the people
killed in the government's siege of the Branch Davidian compound in
Waco, Texas. Finally, two days after the bombing, Howe told federal
agents that she allegedly had seen two brothers at Elohim City before
the bombing who resembled the composite drawings of "John Doe 1" and "John
Doe 2," the suspects originally sought by the government in the
immediate aftermath of the bombing.(11)
Separately from Howe's testimony,
McVeigh's counsel also offered to introduce copies of FBI and ATF
reports that McVeigh argued would establish that the federal
investigation into Elohim City was suspended after McVeigh was
McVeigh contends that this proffered
evidence was relevant to two separate propositions: first, that there
were other perpetrators of the bombing, and second, that the
government's investigation of the bombing was "shoddy and slanted,"
with investigators allegedly overlooking exculpatory evidence after
they became satisfied that McVeigh was the principal perpetrator.
After hearing the proffer, the district
court ruled, "Well, we've had a number of disclosures concerning
Mahon, Strassmeir, Elohim City and now some additional information
from Carol Howe. But my ruling is that it's excluded, not sufficiently
relevant to be admissible."
a. Relevance under Rule 401
Under the Federal Rules of Evidence, "[a]ll
relevant evidence is admissible," subject to the limitations provided
by the Federal Rules and other laws; any evidence "which is not
relevant is not admissible." See Fed. R. Evid. 402. Thus, the
threshold to admissibility is relevance. The scope of relevancy is
bounded only by the liberal standard of Rule 401, which provides that
evidence is relevant if it has "any tendency to make the existence of
any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence."
See Fed. R. Evid. 401. As commentators have noted, Rule 401's
definition of relevancy incorporates notions of both materiality and
probativity. See 1 Kenneth S. Broun, et al., McCormick on
Evidence § 185, at 774-75 (John William Strong ed., 4th ed. 1992);
Wright & Graham, supra, §§ 5164, 5165, at 37-38, 48-50.
As for materiality, under Rule 401 a
fact is "of consequence" when its existence would provide the fact-finder
with a basis for making some inference, or chain of inferences, about
an issue that is necessary to a verdict. See Wright & Graham,
supra, § 5164, at 42-43. As for the degree of probative value
required under Rule 401, the rule sets the bar very low. See
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587
(1993); Amoco Rocmount Co. v. Anschutz Corp., 7 F.3d 909, 919
(10th Cir. 1993). The rule establishes that even a minimal degree of
probability i.e., "any tendency" that the asserted fact exists is
sufficient to find the proffered evidence relevant. See Fed. R.
Evid. 401. The Advisory Committee explained that the "any tendency"
language establishes that the "standard of probability under the rule
is 'more . . . probable than it would be without the evidence.'"
See id. Adv. Comm. Notes (1972 Proposed Rules) (quoting Fed.
R. Evid. 401).
b. Balancing under Rule 403
Even though evidence may meet the
relevancy standard of Rule 401, a trial court still may exclude it on
the grounds that its probative value the evidence's probability of
establishing a fact of consequence is "substantially outweighed" by
certain negative factors. See Fed. R. Evid. 403. Those factors
include "unfair prejudice," "confusion of the issues," and "misleading
the jury." See id.
The danger of "unfair prejudice" under
Rule 403 is not simply the tendency of evidence to undermine a party's
position. Rather, the prejudice that is "unfair" is prejudice arising
from the tendency of proffered evidence to suggest to the jury that it
should render its findings "on an improper basis, commonly, though not
necessarily, an emotional one." See Fed. R. Evid. 403, Adv.
Comm. Notes (1972 Proposed Rules).
The danger of "confusion of the issues"
and "misleading the jury" arises when circumstantial evidence would
tend to sidetrack the jury into consideration of factual disputes only
tangentially related to the facts at issue in the current case. See
United States v. Guardia, 135 F.3d 1326, 1331-32 (10th Cir.
1998). The classic explanation of this danger comes from Dean Wigmore:
"The notion here is that, in attempting to dispute or explain away the
evidence thus offered, new issues will arise as to the occurrence of
the instances and the similarity of conditions, [and] new witnesses
will be needed whose cross examination and impeachment may lead to
further issues." 2 John Henry Wigmore, Evidence § 443, at
528-29 (James H. Chadbourn rev., 1979).
In the course of weighing probative
value and adverse dangers, courts must be sensitive to the special
problems presented by "alternative perpetrator" evidence. Although
there is no doubt that a defendant has a right to attempt to establish
his innocence by showing that someone else did the crime, a defendant
still must show that his proffered evidence on the alleged alternative
perpetrator is sufficient, on its own or in combination with other
evidence in the record, to show a nexus between the crime charged and
the asserted "alternative perpetrator." See Matthews v.
Price, 83 F.3d 328, 332 (10th Cir. 1996). It is not sufficient for
a defendant merely to offer up unsupported speculation that another
person may have done the crime. Such speculative blaming intensifies
the grave risk of jury confusion, and it invites the jury to render
its findings based on emotion or prejudice.
Finally, after identifying the degree
of probative value and adverse danger, courts exclude relevant
evidence if the adverse dangers "substantially outweigh" the probative
value. See Fed. R. Evid. 403.
c. Admissibility of Carol Howe's proffered
Even if we assume that the proffered
evidence had some marginal relevance, the Howe testimony cannot
survive the balancing under Rule 403. First, we conclude that the
probative value of such proffered testimony was slight because of its
highly generalized and speculative nature. The fact that another group
held similar anti-government views as did McVeigh and that some of its
members expressed vague threats to bomb a variety of potential targets
in Oklahoma, possibly including a federal building in Oklahoma City,
says very little about whether this group actually bombed the Murrah
Building. That others shared McVeigh's political views is a slender
reed upon which to vault the dangers of unfair prejudice and jury
confusion. Howe's alleged identification of "John Doe 1" and "John Doe 2"
arguably increases the probative value of her other testimony. However,
the composite sketches included no particular identifying features
that would strengthen the significance of Howe's allegation of two
matches. In fact, there are undoubtedly thousands of men across
America who resembled the government's composite sketches. Finally,
there was no evidence in this proffer, or in the record, that would
establish a probative nexus between the alleged Elohim City conspiracy
and the bombing of the Murrah Building.
In the face of the speculative
probative value of Howe's testimony, we must confront the very real
dangers of unfair prejudice and confusion of the issues. The Howe
testimony presented a great threat of "confusion of the issues"
because it would have forced the government to attempt to disprove the
nebulous allegation that Elohim City was involved in the bombing. This
side trial would have led the jury astray, turning the focus away from
whether McVeigh the only person whose actions were on trial bombed
the Murrah Building. It also presented a threat of "unfair prejudice"
as it would invite the jury to blame absent, unrepresented individuals
and groups for whom there often may be strong underlying emotional
Thus, the district court did not err in
excluding this testimony.
d. Admissibility of suspension of Elohim
McVeigh's additional claim of error
involves the exclusion of FBI and ATF reports pertaining to the
activities of the Elohim City group. McVeigh contends that the reports
show that the government's investigation of Elohim City was "shoddy"
and "slanted" because they allegedly show that the government failed
to investigate other potential suspects once it focused on McVeigh.
McVeigh's argument runs aground on both
his factual and legal premises. Factually, these reports simply do not
support his claim that the government's investigation of Elohim City
was shoddy or that the government prematurely terminated the
investigation. To the contrary, the proffered reports suggest that the
government actively pursued the potential connection between Elohim
City and the bombing, and that this aspect of the bombing
investigation remained open well after McVeigh became the primary
focus. The reports suggest that the government was unwilling to send
Howe back into Elohim City, as a confidential informant, because
leaders of that group had begun to suspect her status and she had
received warnings that she would be in danger if she returned to
Elohim City. These details in the ATF and FBI reports do not in the
slightest offer any probative evidence for McVeigh's unfounded
speculation that the government's investigation was shoddy or
The legal premise of McVeigh's claim
that the quality of the government's investigation was material to his
defense also founders. Admittedly, the quality or bias of a criminal
investigation occasionally may affect the reliability of particular
evidence in a trial, and hence, the facts surrounding the government's
investigation may become relevant. See Lowenfield v. Phelps,
817 F.2d 285, 291-92 (5th Cir. 1987) (holding that it was a reasonable
trial strategy to attempt to argue that "sloppy police work" tainted
the chain of custody for certain guns seized by police and "set the
stage for an argument that others were implicated in the murders"),
aff'd on other grounds, 484 U.S. 231 (1988). However, in McVeigh's
case, he failed to establish the requisite connection between the
allegedly "shoddy" and "slanted" investigation and any evidence
introduced at trial. There was no trial evidence whose reliability
would have been undercut had McVeigh been able to prove his
contentions about the Elohim City investigation. To have allowed
McVeigh to put the government on trial because there might have been
something more the government perhaps could have done with respect to
the activities of the Elohim City group would inevitably divert the
jury's attention from the issues of the trial. See United
States v. Veal, 23 F.3d 985, 989 (6th Cir. 1994) (upholding a
trial court's refusal to allow a defendant to show that the
government's investigation had been "sloppy" because "the jury would
not be called upon to determine whether the government's investigation
had been good or bad").
Under our system of criminal justice,
the issue submitted to the jury is whether the accused is guilty or
not guilty. The jury is not asked to render judgment about non-parties,
nor is it normally asked to render a verdict on the government's
investigation. The district court did not abuse its discretion, but
rather is to be commended, in keeping the focus of the trial upon the
issues properly before the jury.
D. CRIMINAL INTENT AND LESSER-INCLUDED
McVeigh argues that the district court
improperly instructed the jury regarding the intent elements of the
mass destruction crimes with which he was charged and that the
district court erred in refusing to instruct the jury on lesser-included
offenses for the mass destruction offenses and the first-degree murder
charges. In particular, he contends that: (1) 18 U.S.C. § 2332a (1994)
and 18 U.S.C. § 844(f) (1994) require the government to prove a
specific intent to kill as an element of those crimes and the district
court erred in failing to instruct on that element; (2) the district
court erred in concluding that there are no lesser-included offenses
to § 2332a and § 844(f) involving an intent of something less than a
specific intent to kill; and (3) the district court erred in
concluding that the evidence did not warrant giving instructions on
second-degree murder as a lesser-included offense of first-degree
1. Standard of Review
Whether § 2332a and § 844(f) have as an
element the specific intent to kill are questions of statutory
construction, and so are reviewed de novo. See United States
v. Agnew, 931 F.2d 1397, 1407 (10th Cir. 1991). Whether § 2332a
and § 844(f) have any lesser-included offenses are also questions of
law and will be reviewed de novo. See United States v. Duran,
127 F.3d 911, 914 (10th Cir. 1997), cert. denied, 118 S. Ct.
1389 (1998). We review for abuse of discretion whether the evidence
warranted an instruction regarding second-degree murder as a lesser-included
offense of first-degree murder. See id.
a. Criminal Intent on Mass Destruction
McVeigh contends that one of the
elements of the mass destruction offenses charged in Counts I, II, and
III is a specific intent to kill when the charge is that deaths were
caused by a bombing. He argues that the district court should have
construed 18 U.S.C. § 2332a and 18 U.S.C. § 844(f) as containing two
levels of criminal intent, comparable to first-degree and second-degree
murder, and as a result, the government should have been required to
prove a specific intent to kill as an element of the crimes charged.
i. 18 U.S.C. § 2332a
Count I charged McVeigh with conspiring
to use a weapon of mass destruction against persons in the United
States and against property that was owned and used by the United
States and by an agency of the United States, in violation of 18 U.S.C.
§ 2332a. Count II charged McVeigh with using and aiding and abetting
the use of a weapon of mass destruction against persons in the United
States, in violation of 18 U.S.C. § 2332a and 18 U.S.C. § 2.
The version of 18 U.S.C. § 2332a(a) in
effect at the time of the bombing provided:
Offense.A person who
uses, or attempts or conspires to use, a weapon of mass destruction
(1) against a national of the United
States while such national is outside of the United States;
(2) against any person within the
United States; or
(3) against any property that is owned,
leased or used by the United States or by any department or agency of
the United States, whether the property is within or outside of the
shall be imprisoned for any term of
years or for life, and if death results, shall be punished by death or
imprisoned for any term of years or for life.(12)
From the plain language of the statute,
it is clear that "intent to kill" is not a statutorily required
element of § 2332a(a). In fact, no level of intent is specified.
When Congress fails to specify the
degree of criminal intent required for a statutory offense, courts
will either read in a level of intent or hold that the statute creates
a strict liability crime. See 1 Wayne R. LeFave & Austin W.
Scott, Jr., Substantive Criminal Law § 3.8(a), at 342 (1986).
"[S]ilence on this point by itself does not necessarily suggest that
Congress intended to dispense with a conventional mens rea
element, which would require that the defendant know the facts that
make his conduct illegal." Staples v. United States, 511 U.S.
600, 605 (1994). "On the contrary, we must construe the statute in
light of the background rules of the common law, in which the
requirement of some mens rea for a crime is firmly embedded."
Id. (citation omitted); see also Morrisette v. United
States, 342 U.S. 246, 263 (1952) ("[M]ere omission . . . of any
mention of intent will not be construed as eliminating that intent
from the crimes denounced.").
In light of the nature of the offense
at issue and the severity of the prescribed punishments, we do not
believe that § 2332a is a strict liability crime. See
Staples, 511 U.S. at 606-07 (interpretation of statutes silent as
to mens rea as imposing strict liability is generally limited
to "public welfare" or "regulatory" offenses); Morrisette, 342
U.S. at 251-61 (reviewing history of the common law and the rise of
regulatory offenses); LaFave & Scott, supra, at 342-44. Thus,
we must decide the appropriate level of intent to read into the
In United States v. Bailey, 444
U.S. 394, 406 (1980), the Supreme Court indicated that we should
consider the mental state necessary for each separate element of a
statute. We find two elements in §§ 2332a(a)(2) and (a)(3) as they
existed at the time of the bombing: first, using, or attempting or
conspiring to use, a weapon of mass destruction, and second, doing so
against persons in the United States or against "any property that is
owned, leased or used by the United States or by any department or
agency of the United States . . . ."
We conclude that the intent standard of
"knowingly" is appropriate for each of the elements of a § 2332a
violation. See Bailey, 444 U.S. at 408 ("[E]xcept in
narrow classes of offenses, proof that the defendant acted knowingly
is sufficient to support a conviction."); see also
Staples, 511 U.S. at 619 (adopting "knowingly" standard in face of
congressional silence as to intent); Posters 'N' Things, Ltd. v.
United States, 511 U.S. 513, 523 (1994) (same); Agnew, 931
F.2d at 1408 (same); United States v. Swindler, 476 F.2d 167,
169-70 (10th Cir. 1973) (same); 1 Edward J. Devitt et al.,
Federal Jury Practice & Instructions § 17.02, at 606 (4th ed.
1992) ("Most federal criminal statutes . . . require proof that a
defendant act knowingly or wilfully or have knowledge with regard to
one or more essential elements of the crime defined by that statute.").
Thus, we conclude that § 2332a(a)(2) requires the government to prove
that McVeigh (1) knowingly used, or attempted or conspired to use, a
weapon of mass destruction, and (2) knowingly did so against persons
in the United States. Section § 2332a(a)(3) requires the government to
prove that McVeigh (1) knowingly used, or attempted or conspired to
use, a weapon of mass destruction, and (2) knowingly did so against "any
property that is owned, leased or used by the United States or by any
department or agency of the United States."
The fact that the statute authorizes
the death penalty "if death results" from the use of the weapon of
mass destruction does not persuade us that the statute incorporates "intent
to kill" as an element. Looking at the plain language and structure of
the statute, we conclude that the phrase "if death results" is a
sentencing factor rather than an element of the offense. Cf.
United States v. Oliver, 60 F.3d 547, 552 (9th Cir. 1995) (construing
"if death results" as sentence enhancement under 18 U.S.C. § 2119),
cert. granted sub nom. Jones v. United States, 118 S. Ct. 1359,
amended, 118 S. Ct. 1405 (1998); United States v. Williams,
51 F.3d 1004, 1009 (11th Cir. 1995) (same); United States v. Ryan,
9 F.3d 660, 669 (8th Cir. 1993) (construing "if death results" as
sentence enhancement under 18 U.S.C. § 844(i)), modified on other
grounds, 41 F.3d 361 (8th Cir. 1994) (en banc); see also
Almendarez-Torres v. United States, 118 S. Ct. 1219, 1224 (1998) (construing
8 U.S.C. § 1326(b)(2) as sentence enhancement for a deported alien
returning to the United States without permission). The natural
reading of the text of § 2332a(a) is that subsections (a)(1), (a)(2),
and (a)(3) define the elements of the crime, i.e., the use of a weapon
of mass destruction against specified targets. The penalties follow
separately any term of years, life imprisonment, and in some cases,
the death penalty. The proof needed to trigger the death penalty,
however, is not necessary to prove a violation of the statute.
Sentencing enhancements generally are not treated as elements and do
not increase the government's burden of proof during the guilt phase
of a trial. See Almendarez-Torres, 118 S. Ct. at
Further, even if the phrase "if death
results" were to be construed as an element of the offense rather than
a sentencing enhancement, it would not be an intent element but only
an element of factual consequences. Nothing in § 2332a(a) links the "if
death results" language of the statute to any scienter whatsoever.
Cf. United States v. Woodlee, 136 F.3d 1399, 1405 (10th
Cir.) ("[18 U.S.C. §] 245(b) expressly provides the government need
only show the defendants' illegal conduct resulted in bodily
injury; not that the defendants intended bodily injury."), petition
for cert. filed (U.S. May 22, 1998) (No. 97-9239).(13)
McVeigh also contends that § 2332a
must require the government to prove intent to kill because it
authorizes the death penalty, which cannot be imposed absent proof of
intent to kill. We are well aware that the government may not secure a
death sentence without proving a certain level of criminal intent.
See Enmund v. Florida, 458 U.S. 782, 797 (1982) (Eighth
Amendment prohibits imposing death penalty on robber who did not
himself kill or intend to kill or to employ lethal force); Tison v.
Arizona, 481 U.S. 137, 158 (1987) ("[M]ajor participation in the
felony committed, combined with reckless indifference to human life,
is sufficient to satisfy the Enmund culpability requirement.").
However, the Supreme Court recently reiterated that Enmund did
not establish any new substantive elements of a capital crime, and
that these necessary findings may be made at any stage of the
proceedings, including during sentencing or on appeal. See
Hopkins v. Reeves, 118 S. Ct. 1895, 1902 (1998); see also
Cabana v. Bullock, 474 U.S. 376, 392 (1986). Thus, "intent to
kill" need not be incorporated into the jury instructions during the
guilt phase of a capital case if it is not an element of the charged
We also reject McVeigh's contention
that, even if "intent to kill" is generally not an element of the
charged offenses, in this case the government was still bound to prove
such intent because it was charged in the indictment. This argument
disregards Supreme Court and Tenth Circuit authority. Surplusage in an
indictment need not be proved, see United States v. Miller,
471 U.S. 130, 144 (1985); United States v. Smith, 838 F.2d 436,
439 (10th Cir. 1988); United States v. Harper, 579 F.2d 1235,
1239 (10th Cir. 1978) ("When the language of the indictment goes
beyond alleging the elements of the offense, it is mere surplusage,
and such surplusage need not be proved."), and we have held that
allegations of criminal intent that go beyond the elements of the
crime are surplusage, see United States v. Kilburn, 596
F.2d 928, 934 (10th Cir. 1978).(15)
The instructions given the jury
regarding the intent elements of Counts I and II were more than
adequate. For Count I, which charged conspiracy to violate § 2332a,
the jury was instructed it had to find beyond a reasonable doubt "[t]hat
the defendant, Timothy James McVeigh, knowingly and voluntarily became
a member of the conspiracy, with the intent to advance or further its
objectives." We have held that the intent elements of conspiracy are
that the defendant "knew the essential objectives of the conspiracy"
and "knowingly and voluntarily took part in the conspiracy." United
States v. Ailsworth, 138 F.3d 843, 850 (10th Cir.), petition
for cert. filed (U.S. July 15, 1998) (No. 98-5276). The district
court's instructions adequately conveyed those elements and ensured
that to convict McVeigh, the jury would have to find that McVeigh
knowingly conspired to use a weapon of mass destruction against
persons or property in violation of §§ 2332a(2) and (a)(3).
For Count II, the court charged the
jury that to convict it must find that McVeigh used a weapon of mass
destruction against persons and that he acted "knowingly,
intentionally, willfully, and maliciously." This instruction also
ensured the jury would have to find the proper criminal intent.
Further, beyond instructing the jury on the proper standard of "knowingly,"
the instruction added an element not required by § 2332a, the element
of malice. However, this addition certainly did not prejudice McVeigh.
ii. 18 U.S.C. § 844(f)
Count III charged the malicious
destruction of federal property by means of an explosive, in violation
of 18 U.S.C. §§ 844(f) and 2(a) & (b). The version of 18 U.S.C.
§ 844(f) in effect at the time of the bombing provided:
Whoever maliciously damages or destroys,
or attempts to damage or destroy, by means of fire or an explosive,
any building, vehicle, or other personal or real property in whole or
in part owned, possessed, or used by, or leased to, the United States,
any department or agency thereof, or any institution or organization
receiving Federal financial assistance shall be imprisoned for not
more than 20 years, fined the greater of the fine under this title or
the cost of repairing or replacing any property that is damaged or
destroyed, or both; and if personal injury results to any person
including any public safety officer performing duties as a direct or
proximate result of conduct prohibited by this subsection, shall be
imprisoned not more than 40 years, fined the greater of the fine under
this title or the cost of repairing any property that is damaged or
destroyed, or both; and if death results to any person, including any
public safety officer performing duties as a direct or proximate
result of conduct prohibited by this subsection, shall be subject to
imprisonment for any term of years, or to the death penalty or to life
Thus, the plain language of the statute
indicates that the required criminal intent is "maliciously." See
McFadden v. United States, 814 F.2d 144, 145 (3d Cir. 1987).
One acts maliciously if he or she acts
"intentionally or with willful disregard of the likelihood that damage
or injury will result." McFadden, 814 F.2d at 146; see also
United States v. Gullett, 75 F.3d 941, 947-48 (4th Cir.) (same,
construing 18 U.S.C. § 844(i)), cert. denied, 117 S. Ct. 134
(1996); United States v. Corona, 108 F.3d 565, 571 (5th Cir.
1997) (same). Consequently, to prove a violation of § 844(f) the
government must show both a knowing use of the explosive and a
malicious intent in doing so. For the reasons discussed above, we do
not believe that to secure a conviction under § 844(f) the government
must show an intent to kill. McVeigh's arguments to the contrary fail
for the reasons discussed above.(17)
Here, the court charged the jury that
to convict on Count III it must find that McVeigh acted "knowingly,
intentionally, willfully, and maliciously." This instruction covered
the necessary intent elements.
b. Lesser-included Offenses - 18 U.S.C. §§
McVeigh argues that the district court
erred in not instructing the jury on lesser-included offenses of 18
U.S.C. § 2332a and 18 U.S.C. § 844(f).
In Hopkins, the Supreme Court
made it clear that the Constitution does not require a court to
instruct the jury on lesser-included offenses that do not exist under
the law. See 118 S. Ct. at 1901. McVeigh's request for lesser-included
offense instructions was based upon his argument that § 2332a and
§ 844(f) incorporated multiple offenses graduated by levels of intent,
comparable to first-degree and second-degree murder. We reject that
argument, and therefore, we find that the district court properly
denied the requests for lesser-included offense instructions for these
McVeigh, relying on Beck v. Alabama,
447 U.S. 625 (1980), suggests that it was unconstitutional for the
court to force the jury into an "all-or-nothing" decision whether to
convict him of a capital offense or acquit him altogether. This case
is unlike Beck, however, because the jury here was not
compelled to impose the death penalty on McVeigh if it convicted him
of the charged offenses; rather, it had the opportunity to reject the
death penalty during the sentencing phase. See Hopkins,
118 S. Ct. at 1901-02.
c. Lesser-included Offenses - 18 U.S.C. §§
McVeigh contends that the district
court abused its discretion in not instructing the jury on second-degree
murder as a lesser-included offense of first-degree murder.(18)
The killings at issue here were charged
under 18 U.S.C. § 1114, which specifically criminalizes the killing of
an officer or employee of the United States government. Under § 1114,
we are directed back to the general federal murder statute, 18 U.S.C.
§ 1111, which states:
Murder is the unlawful killing of a
human being with malice aforethought. Every murder perpetrated by
poison, lying in wait, or any other kind of willful, deliberate,
malicious, and premeditated killing; or committed in the perpetration
of, or attempt to perpetrate, any arson, escape, murder, kidnaping,
treason, espionage, sabotage, aggravated sexual abuse or sexual abuse,
burglary, or robbery; or perpetrated from a premeditated design
unlawfully and maliciously to effect the death of any human being
other than him who is killed, is murder in the first degree.
Any other murder is murder in the
Second-degree murder is a recognized
lesser-included offense of first-degree murder. See United
States v. Lofton, 776 F.2d 918, 918 (10th Cir. 1985); David E.
Rigney, Annotation, Propriety of Lesser-Included-Offense Charge to
Jury in Federal Homicide Prosecution, 101 A.L.R. Fed. 615 § 3
(1991 & Supp. 1997). For the purposes of this case, the only relevant
difference between first-degree and second-degree murder is the
existence of premeditation, which we have defined as:
The act of meditating in advance;
deliberation upon a contemplated act; plotting or contriving; a design
formed to do something before it is done. Decision or plan to commit a
crime, such as murder before committing it. A prior determination to
do an act, but such determination need not exist for any particular
period before it is carried into effect.
United States v. Jenny, 7 F.3d
953, 957 (10th Cir. 1993) (quoting Black's Law Dictionary 1062
(5th ed. 1979)).
The district court held that the
evidence did not warrant giving a second-degree murder instruction
because to convict McVeigh of murder the jury would necessarily have
to find premeditation.(19) "'The decision of whether there
is enough evidence to justify a lesser-included offense charge rests
within the sound discretion of the trial judge.'" United States v.
Hatatley, 130 F.3d 1399, 1403 (10th Cir. 1997) (quotation omitted).
"The trial judge does not abuse his discretion by refusing to instruct
on a lesser-included offense when the evidence before him provides no
rational basis upon which the jury could find the defendant guilty of
the lesser offense." Id. "Only when an appellate court is
convinced that the evidence issues are such that a rational jury could
acquit on the charged crime but convict on the lesser crime may the
denial of a lesser included offense charge be reversed." United
States v. Moore, 108 F.3d 270, 272 (10th Cir. 1997); see also
Hopper v. Evans, 456 U.S. 605, 610 (1982) (defendant entitled
to lesser-included offense instruction only when such instruction is
supported by the evidence).
We agree with the district court that a
rational jury here could not have convicted McVeigh of second-degree
murder while acquitting him of first-degree murder. In this case, to
convict of any murder, either first or second degree, the jury would
have to find an unlawful killing done with malice aforethought.(20)
See 18 U.S.C. § 1111. Once it had made those findings, based
upon the record in this case, a rational jury would have to find
premeditation, simply because the method of murder employed the
bombing could not have been implemented without an enormous amount
of planning. Once premeditation was established, the only applicable
homicide offense was first-degree murder.(21)
E. GUILT PHASE VICTIM TESTIMONY
The government presented a number of
witnesses during the guilt phase of the trial who identified deceased
victims of the blast and described the impact of the explosion,
including the carnage and destruction caused by the bombing. McVeigh
divides this testimony into four categories: (a) detailed personal and
professional histories of the witnesses; (b) accounts of witness
activities prior to the explosion; (c) accounts of the explosion and
its immediate aftermath as experienced or observed by the witnesses;
and (d) long-term impacts of the bombing. McVeigh argues that the
district court erred by admitting this testimony under Federal Rule of
Evidence 403 and that the introduction of the testimony
unconstitutionally allowed passion to overwhelm reason in the jury's
determination of guilt.
1. Standard of Review
a. Rule 403
The admission of evidence under Federal
Rules of Evidence 401 and 403 generally is reviewed for an abuse of
discretion. See United States v. McIntosh, 124 F.3d
1330, 1338 (10th Cir. 1997). McVeigh argues that we should adopt a
more exacting standard of review because of the heightened concern for
reliability in death penalty cases, citing Stringer v. Black,
503 U.S. 222, 230 (1992); Beck v. Alabama, 447 U.S. 625, 637-38
(1980); and Woodson v. North Carolina, 428 U.S. 280, 305
(1976).(22) We reject this contention.
Stringer and Woodson deal
with rulings affecting the penalty phase of a trial, ensuring
that each defendant in a capital punishment case receives an
individualized sentencing determination. Those cases are
inapposite to McVeigh's proposition regarding consideration of
guilt phase determinations. As for Beck, the Court only
focused on fundamental challenges to the charging process and did not
establish a heightened standard of review for evidentiary rulings or
other similar discretionary rulings by the trial court. See
Beck, 447 U.S. at 637-38. Appeals courts after Beck have
continued to apply a traditional abuse of discretion standard of
review to discretionary rulings by a trial judge in a capital case.
See United States v. McCullah, 76 F.3d 1087, 1099 (10th
Cir. 1996) (applying abuse-of-discretion standard to juror
impartiality ruling), cert. denied, 117 S. Ct. 1699 (1997);
see also Wise v. Bowersox, 136 F.3d 1197, 1205 (8th Cir.
1998); cf. Herrera v. Collins, 506 U.S. 390, 405 (noting
that federal habeas corpus in death penalty cases is reviewed under
same standard as non-death penalty cases).
b. Continuing Objections and Plain Error
McVeigh first challenged the victim
evidence at issue during a lunch break midway through the testimony of
Hunt, the fifth victim witness, by objecting to "extensive
conversations and things not related to what the witness saw, heard,
experienced during the relevant time period." The district court
granted McVeigh a "continuing objection" to testimony dealing with the
"long-range effects" of the bombing that went beyond the "immediate
effects" of the blast.(23) Because McVeigh made no
objections to the testimony of the first four witnesses (Lou Klaver,
Michael Norfleet, Phil Monahan, and Richard Williams), we review the
admission of that testimony for plain error. See United
States v. McDonald, 933 F.2d 1519, 1524 (10th Cir. 1991).
Similarly, we review for plain error that portion of Susan Hunt's
testimony presented before McVeigh lodged his continuing objection.
We have serious doubts as to whether
McVeigh's continuing objection was a proper form of objection for the
victim testimony that followed. In certain circumstances, a continuing
objection has been allowed as a specific, timely objection under
Federal Rule of Evidence 103. See United States v.
Fortenberry, 919 F.2d 923, 924 (5th Cir. 1990); United States
v. Blackman, 904 F.2d 1250, 1256 (8th Cir. 1990); United States
v. Ladd, 885 F.2d 954, 958 (1st Cir. 1989); United States v.
Vinson, 606 F.2d 149, 153 (6th Cir. 1979); 21 Charles Alan Wright
& Kenneth W. Graham, Jr., Federal Practice & Procedure § 5037,
at 191-92 (1977).
However, continuing objections
generally are considered inappropriate for preserving error on appeal
under Rule 403. In United States v. Mangiameli, 668 F.2d 1172,
1177 (10th Cir. 1982), this court cautioned that "in our view, the
considerations bearing upon a decision whether to admit or exclude
evidence under Rules 404(b) and 403 are sufficiently complex that
ordinarily neither counsel nor the trial court should rely on a
standing objection with respect to evidence coming within the purview
of these rules." See also People v. Smith, 203
Cal. Rptr. 196, 231 (Cal. Ct. App. 1984). But see
United States v. Gomez-Norena, 908 F.2d 497, 500 n.2 (9th Cir.
1990) (allowing continuing objection under Rule 404(b)); Ladd,
885 F.2d at 958 (allowing continuing objection under Rule 403).
We believe that the question of whether
a continuing objection under Rule 403 was effective to preserve the
objection for later testimony should be reviewed under the same
standards used for determining whether a pretrial motion in limine to
exclude evidence preserved an objection to later-admitted evidence. A
motion in limine will not preserve an objection if it is not renewed
at the time the evidence is introduced unless "the issue (1) is fairly
presented to the district court, (2) is the type of issue that can be
finally decided in a pretrial hearing, and (3) is ruled upon without
equivocation by the trial judge. . . . [M]ost objections will prove to
be dependent on trial context and will be determined to be waived if
not renewed at trial." United States v. Mejia-Alarcon, 995 F.2d
982, 986-88 (10th Cir. 1993) (citations omitted). McVeigh never
identified specific statements that he believed were unduly
prejudicial. Given the sheer number of witnesses involved and the
variety of factual contexts presented, the admissibility of victim
testimony would not ordinarily be an issue that could be decided in a
pretrial hearing or by means of a continuing objection.(24)
Nevertheless, in this case the district
court explicitly granted a continuing objection to McVeigh on this
issue. Thus, we feel it would be unfair to hold that McVeigh could not
rely on his continuing objection. As a result, we review for abuse of
discretion the district court's decision to admit testimony covered by
McVeigh's continuing objection. However, "a standing objection should
not be given broader scope than is found in its establishing statement."
United States v. Lawson, 507 F.2d 433, 437 n.2 (7th Cir. 1974).
A party may not rely on a continuing objection lodged on one
evidentiary ground to argue a different ground for exclusion on
appeal. See Gomez-Norena, 908 F.2d at 500 n.2; United
States v. Gillette, 189 F.2d 449, 453 (2d Cir. 1951). Thus, our
abuse-of-discretion review is restricted to evidence within the scope
of McVeigh's objection, as ruled on by the district court. The court's
ruling allowed testimony regarding the "immediate effects" but "not
the long-range effects" of the bombing. The continuing objection does
not fairly cover witness histories, pre-explosion witness activities,
or descriptions of the bombing and its immediate aftermath, and thus
we review claims of error pertaining to those categories of testimony
only under a plain error standard. We also review for abuse of
discretion the decision by the district court overruling a specific
objection lodged by McVeigh to Garrett's testimony describing the
activities of the children present at the Murrah Building day care
center before the explosion.
2. Relevance Versus Prejudice
McVeigh concedes in his brief on appeal
that the challenged testimony was relevant, although he argues that it
was only minimally so. He also concedes that ascertaining the line
between factual and emotional descriptions of the bombing "is not
always an easy task, and Mr. McVeigh's counsel were faced with the
very difficult task of discerning when the testimony crossed the line
sufficiently to object." However, McVeigh focuses his argument on the
claim that the challenged victim testimony was so laden with
emotionally prejudicial content that its admission violated Rule 403
and created a significant risk that the jury reached its verdict based
on emotion rather than reason. Having reviewed the record, we find no
plain error in the introduction of any of the guilt phase victim
testimony challenged by McVeigh on appeal. Even if the district court
abused its discretion in allowing the introduction of certain long-range-impact
testimony during the guilt phase, we hold such error would be harmless.
a. Personal Histories
McVeigh identifies the following
personal history testimony as objectionable: Norfleet's description of
his career as a Marine Corps pilot in Desert Storm and various drug
interdiction missions and the irony of his decision to accept a
recruiting job in Oklahoma in order to placate his wife's desire that
he avoid dangerous combat duty; Hunt's pre-continuing objection
testimony about her educational and employment history and her
reference to her "grandchild and beautiful daughter-in-law and an
almost second daughter-in-law"; Helena Garrett's explanation for the
reason that her son was in the day care center; Donna Weaver's
description of her deceased husband's involvement in their sons'
sports teams and her regular lunches and meetings with him downtown;
and Dr. Brian Espe's, Capt. Lawrence Martin's, and Mike Shannon's
detailed highlights of their personal and professional histories.
McVeigh complains that this testimony "allowed the jury to get to know
[the witnesses] as individuals and to be more receptive to the stories
that followed." However, reasonable background information about a
witness is always admissible, precisely because it allows the jury to
make better informed judgments about the credibility of a witness and
the reliability of that witness' observations. See 2 Jack B.
Weinstein & Margaret A. Berger, Weinstein's Federal Evidence ¶
401.04[a], at 401-37 (Joseph M. McLaughlin, ed., 1997). The
evidence McVeigh challenges served this proper purpose. The defense
asked similar personal history questions during direct examination of
its witnesses. The personalization of witnesses through descriptions
of their individual histories is inevitable. Although personalizing a
witness can be overdone, the question of whether the district court
erred in this case is not even close. We find no error by the district
court under either an abuse of discretion or plain error review.
b. Pre-Explosion Activities
McVeigh challenges the following pre-explosion
activity testimony: Norfleet's attendance at a "leadership prayer
breakfast" the morning of the blast; Hunt's pre-continuing objection
description of her encounters with various co-workers who died in the
explosion, including one ordering the flowers for her wedding, one who
offered her candy, and one who diligently made coffee; Garrett's
recollection of her son Tevin's endearing interactions with his sister
and of Tevin's tears when Garrett dropped him off at the day care
center and the efforts of other children to console him; Martin's
notation that Sergeant Bill Titsworth was killed because he chose the
day of the blast as his first day of work even though he could have
reported for work any other day over the next two weeks; and Regina
Bonny's account of her reaction to ultrasound pictures brought in by
Carrie Lenz, a pregnant co-worker who died in the blast.
For many of the same reasons discussed
above, this testimony was proper. This evidence places the witnesses
at the scene of the crime, demonstrates how they knew the deceased
victims, and sets a foundation for their testimony describing the
explosion, identifying the specific location of deceased victims in
the building before the explosion, and explaining why individual
victims were present in the building. See United States v.
Wilson, 107 F.3d 774, 781 (10th Cir. 1997) (upholding relevance of
background information); cf. United States v. Sarracino,
131 F.3d 943, 949 (10th Cir. 1997) (approving the admission of
evidence providing context to the crime charged under Rule 404(b)).
The testimony allowed the jury to evaluate the accuracy of each
witness' memory and determine whether the related details formed a
consistent whole. For example, Norfleet's testimony about his
attendance at a prayer breakfast explains why he came to the Murrah
Building the day of the explosion (he generally did not work at the
building) and why he took a specific route to the building that
allowed him to notice the Ryder truck parked out front. The evidence
also formed part of the res gestae of the crime, providing proof that
the bomb interfered with interstate commerce and with government
officials performing government business. See United States
v. Kimball, 73 F.3d 269, 272 (10th Cir. 1995) (approving the
admission of res gestae evidence).
In only one case do we find any
potential prejudice: Bonny's testimony about the ultrasound pictures
shown by Carrie Lenz. Nevertheless, the testimony was in response to a
single question, and Bonny's answer comprised less than four lines out
of fourteen pages of testimony. The prejudicial effect of the evidence
did not substantially outweigh its relevance. Thus, we find no plain
error. Even if we were to review the admission of the testimony under
an abuse-of-discretion standard, we still would find no error.
c. Immediate Impacts
McVeigh challenges almost all of the
testimony presented on this subject by the various witnesses,(25)
including, for example: Norfleet's loss of his eye, fractured skull,
and near-death experience, and his description of following a trail of
blood out of the building; Hunt's post-continuing objection account of
assisting a survivor who had lost an eye but who had not yet realized
it and helping hold parents back as rescue workers brought out dead
children from the day care center; Garrett's frantic search to find
her son and her description of the dead children lined up on the
street covered with glass combined with her pleas to "please don't lay
our babies on this glass" because she did not realize that the babies
were "already dead"; Weaver's search for her husband and her
intuitions that he was dead; John Avera's rescue efforts, including
finding a baby he heard choking, comforting a woman trapped in the
rubble, and collapsing from his efforts; Luke Franey's remembrance of
"running down the stairwell holding on the handrail and it being
covered in blood"; Martin's substantial injuries and hearing wailing
sounds from two female co-workers; Priscilla Salyers' panic while
trapped under the rubble for four and a half hours; and Shannon's
account of the rescue effort.
In order to prove the elements of the
various offenses charged, the government had to prove, inter alia,
that the bomb was a weapon of mass destruction used against persons
and property, that the explosion substantially interfered with
interstate commerce, which could be established by showing disruption
of government operations, that the bomb foreseeably would result in
death, and that use of the bomb evidenced a malicious intent to kill.(26)
The bulk of the contested testimony showed either the magnitude of the
destruction or identified the victims and the cause of death.
The description of the destruction and
carnage following the explosion is the most emotionally powerful of
the evidence presented during the guilt phase. Hunt's and Garrett's
descriptions of the dead children from the day care center are
particularly powerful. Nevertheless, even "[g]raphic depictions" of a
murder are relevant to support "other evidence about how the crime
occurred . . . even when the element is uncontested indeed, even
when the defendant offers to admit to the element. . . ." Gonzalez
v. DeTella, 127 F.3d 619, 621 (7th Cir. 1997), cert. denied,
118 S. Ct. 1325 (1998).
Moreover, McVeigh concedes that
testimony establishing the identity of the victims and the cause of
death was appropriate, and that even the testimony he considers beyond
the scope of any legitimate purpose was inextricably "intertwined with
proper evidence." Because this evidence was legitimately part of the
res gestae of the crime, there was no error in its admission.
d. Long-Term Effects
McVeigh identifies portions of the
testimony of eight witnesses that he claims amounted to overly
prejudicial discussions of the long-term impacts of the bombings,
including: Norfleet's loss of his pilot status and of his "pride and
joy" gold aviator wings on his license plate and his explanation that
Sergeant Benjamin Davis died without learning about his acceptance
into a Marine Corps officer training program; Hunt's testimony that
she attended twenty-two funerals; Garrett's inability to kiss the body
of her son above his waist because of his "severe head injury";
Weaver's testimony that her husband was "buried two years ago today"
and that she felt fortunate to be able to identify the body; Martin's
medical discharge from the Army as a result of his injuries just as he
was slated for a possible promotion; and Cooper's attendance at two
funerals and his description of the deceased men.(27)
Most of this evidence was not
particularly relevant to the issues presented during the guilt phase.
In addition, some of it had emotional content. See United
States v. Copple, 24 F.3d 535, 545-46 (3rd Cir. 1994) (finding
overly prejudicial the "victim impact testimony" regarding collateral
effects of financial losses on the health and lifestyles of fraud
victims that "went beyond anything that was reasonable to prove" the
specific intent element of the fraud charge). However, even if the
district court abused its discretion by admitting some of this
evidence,(28) we believe such error was harmless. As for
the admission of Norfleet's pre-continuing objection testimony, we
find no plain error given the fine line between appropriate and
inappropriate evidence under Rule 403.
A trial court's admission of
inadmissible evidence will disturb a defendant's conviction only if
the error is not harmless. The erroneous admission of evidence . . .
is harmless unless it had a substantial influence on the outcome or
leaves one in grave doubt as to whether it had such an effect . . .
Further, cautionary instructions are ordinarily sufficient to cure any
alleged prejudice to the defendant. Given the strength of the
prosecution's case as a whole, and the cautionary instruction, we find
the error harmless.
United States v. Cass, 127 F.3d
1218, 1225 (10th Cir. 1997) (citations and quotations omitted),
cert. denied, 118 S. Ct. 1101 (1998). The government bears the
burden of proving the harmlessness of any error. See United
States v. Flanagan, 34 F.3d 949, 955 (10th Cir. 1994).
We review the record as a whole to
evaluate harmless error, see Kotteakos v. United States,
328 U.S. 750, 764 (1946); United States v. Tome, 61 F.3d 1446,
1455 (10th Cir. 1995), and find that the properly admissible evidence
presented at trial that McVeigh carried out the bombing was direct and
compelling, see Copple, 24 F.3d at 546 (finding error in
admitting prejudicial victim impact testimony to be "harmless because
of the overwhelming evidence" of the defendant's guilt). The evidence
of the long-term effects of the bombing did not add much in terms of
emotional impact to the emotional elements that necessarily flowed
from the proper description of the crime itself and it occupied only a
tiny fraction of the trial time. In addition, the district court
delivered strong cautionary instructions to the jury,(29)
which we presume the jury followed, see United States v.
Hatatley, 130 F.3d 1399, 1405 (10th Cir. 1997). Consequently, this
long-term-effects testimony could not have affected the outcome of the
3. Constitutional Error
McVeigh complains that even if the district court
did not err by admitting the testimony of each of the eighteen
witnesses individually, the overall effect of so many witnesses
describing the impact of the bombing allowed passion to overwhelm
reason, rendering the guilt determination constitutionally unreliable.(30)
McVeigh characterizes his argument as an Eighth Amendment issue.
However, a claim that admitted evidence injected an intolerably high
degree of emotion into the guilt phase of trial more properly involves
an alleged violation of the Due Process Clause. See, e.g.,
Estelle v. McGuire, 502 U.S. 62, 75 (1991) (evaluating a claim
that introduction of evidence "so infused the trial with unfairness"
as a denial of "due process of law"). Thus, we address McVeigh's
charge of error as a due process claim.
The testimony of the eighteen witnesses
totals only 456 pages out of more than six thousand pages of trial
transcript. More importantly, it is to be expected that such a large-scale
crime will produce more powerful evidence than a smaller-scale crime.
The emotional impact of the testimony stemmed directly from the
enormity of the crime itself. We also note that the government in this
case exercised considerable restraint in avoiding overly emotional
testimony. The government did not introduce any post-mortem pictures
of victims nor did it dwell excessively on the heart-wrenching
devastation caused by the blast. On several occasions, the prosecution
engaged in self-control by skipping over testimony it thought would
cross the line or repeat testimony already delivered by another
witness. Here, the overwhelming nature of the crime necessarily
allowed the government to introduce testimony reflecting the magnitude
of the act. Thus, we find no constitutional error.
F. DEATH PENALTY VOIR DIRE
McVeigh argues that the district court
unconstitutionally restricted his ability to question prospective
jurors regarding their willingness to impose the death penalty,
violating the principles set forth in Morgan v. Illinois, 504
U.S. 719 (1992), Mu'Min v. Virginia, 500 U.S. 415 (1991), and
Irvin v. Dowd, 366 U.S. 717 (1961). Specifically, he complains
that the district court prevented him from ascertaining whether
prospective jurors would automatically vote for the death penalty and
from determining whether prospective jurors' exposure to prejudicial
pretrial publicity had biased them on the issue of punishment.
1. Standard of Review
The district court has wide discretion
in conducting voir dire, including the type and breadth of questions
regarding the death penalty and pretrial publicity. See
Morgan, 504 U.S. at 729; Mu'Min, 500 U.S. at 427;
Sellers v. Ward, 135 F.3d 1333, 1342 (10th Cir. 1998); United
States v. McCullah, 76 F.3d 1087, 1113 (10th Cir. 1996), cert.
denied, 117 S. Ct. 1699 (1997). Although our review is deferential
to the trial court, we will find an abuse of discretion if the court
unconstitutionally restricted McVeigh's questioning during voir dire.
Once again, we are required to
determine the effect of a continuing objection requested by McVeigh
and granted by the court.(31) During voir dire of several
prospective jurors, McVeigh attempted to ask whether, given the
extensive coverage of the bombing's horrific effects, they were biased
regarding the appropriate punishment for the bombing's perpetrator.
The district court sustained the government's objection to these
questions. During voir dire of the juror who eventually occupied seat
6, the following colloquy ensued:
[Defense]: I believe you've
acknowledged that is really an accumulation of everything that you've
seen and heard, you have at least some suspicion and perhaps a little
more that Mr. McVeigh might be guilty; is that right?
[Defense]: Do you have any sense of
sort of parallel to that that if he is guilty, what ought to happen to
him? Do you have any kind of predisposition toward that that you would
want us to know about?
[Court]: That I'll sustain the
objection to that just like I have always throughout here. I wish we
wouldn't be repeating questions that I've ruled out.
[Defense]: Your Honor, may we have the
record reflect that that would be a continuing question and that would
be your continuing ruling?
[Defense]: Thank you, your Honor.
From our reading of the transcripts, it
appears that the defense objected to the court's refusal to allow it
to ask prospective jurors whether the facts of the bombing already
known to them as a result of pretrial publicity predisposed them to
vote in favor of the death penalty. Because during oral argument the
government conceded the validity of this continuing objection,(32)
we again accept the efficacy of using a continuing objection although
that is a debatable proposition.
The jurors were seated in the order in
which voir dire was conducted, so the continuing objection is
effective as to the jurors in seats 6-12.(33) However, the
objection does not cover the jurors in seats 1-5, so for those jurors
we review for abuse of discretion only those specific questions the
court prevented McVeigh from asking them.
2. Analysis McVeigh sought to ask
questions regarding jurors' predisposition to the death penalty,
especially any such predisposition resulting from the extensive
publicity given to the horrific effects of the bombing. We first must
determine whether the district court's refusal to allow McVeigh's
questions was improper under Morgan v. Illinois, and then we
determine whether the refusal was improper under Mu'Min v. Virginia.
a. Morgan v. Illinois
In Morgan v. Illinois, the
Supreme Court held that a juror who would automatically impose the
death penalty if a defendant were convicted of a capital offense is
not an impartial juror and must be removed for cause. See 504
U.S. at 729. "A juror who will automatically vote for the death
penalty in every case will fail in good faith to consider the evidence
of aggravating and mitigating circumstances as the instructions
require him to do. Indeed, because such a juror has already formed an
opinion on the merits, the presence or absence of either aggravating
or mitigating circumstances is entirely irrelevant to such a juror."
Id. The issue resolved by Morgan is often referred to as
the "reverse-Witherspoon" situation, because Morgan
arose from the line of death penalty voir dire cases exemplified by
Witherspoon v. Illinois, 391 U.S. 510 (1968), and Wainwright v.
Witt, 469 U.S. 412 (1985), in which the Court determined that a
juror who would never vote for capital punishment is not an
impartial juror and must be excused for cause.
"[P]art of the guarantee of a
defendant's right to an impartial jury is an adequate voir dire
to identify unqualified jurors." Morgan, 504 U.S. at 729.
General questions regarding prospective jurors' fairness and ability
to follow the law, however, do not necessarily reveal jurors who would
vote for the death penalty regardless of the facts and circumstances
of the case. See id. at 734-36. Consequently, upon a
defendant's request, a trial court is obligated to ensure that
prospective jurors are asked sufficient questions to allow the court
and parties to determine whether, should the defendant be convicted,
the jurors have already decided to apply the death penalty, or whether
they would truly weigh any mitigating and aggravating factors found at
the penalty phase of the trial. See id. at 736.
McVeigh contends that the trial court
violated Morgan by restricting his ability to question
prospective jurors regarding their willingness to impose the death
penalty. We have identified two types of Morgan questions
McVeigh was not allowed to ask during voir dire. The first category
consists of non-context-specific questions that generally seek to
determine a juror's core value system, i.e., whether the juror would
automatically impose the death penalty if McVeigh were convicted of a
capital offense. We have called these questions "general Morgan
questions." The second category consists of context-specific questions
that focus on whether the facts of the bombing, as revealed through
pretrial publicity, had predisposed prospective jurors toward imposing
the death penalty on anyone convicted of this particular crime. This
category we shall term "specific Morgan questions."
i. General Morgan Questions
According to our review of the record,
only once during the voir dire of a seated juror did the court deny a
general Morgan question:
[Defense]: If the allegations did if
you served on the jury and heard all the evidence in the guilt/innocence
part of the trial and the jury voted that Mr. McVeigh was guilty,
would you feel in that instance that the death penalty automatically
[Court]: I'm going to exclude that
question, because it isn't just a matter of the allegations. It's what
the evidence altogether shows, which includes any possible role in the
offense, so that's an inappropriate question. Move on.
The district court did not abuse its
discretion in excluding the question. Morgan does not require
courts to permit improperly phrased questions, such as questions that
misstate the law or confuse the jurors. See Travis v. State,
_So.2d_, 1997 WL 187121, at *5-7 (Ala. Crim. App. Apr. 18, 1997);
Foster v. State, 639 So.2d 1263, 1274-75 (Miss. 1994); State v.
Kreutzer, 928 S.W.2d 854, 864 (Mo. 1996), cert. denied, 117
S. Ct. 752 (1997); State v. Bishop, 472 S.E.2d 842, 850 (N.C.
1996), cert. denied, 117 S. Ct. 779 (1997). Here, the district
court obviously interpreted the defense's question to be predicated on
the pretrial "allegations" made against McVeigh and it ruled that
question to be objectionable because it asked the juror to speculate
as to her opinion based on allegations not even in evidence. Although
the question is admittedly ambiguous and susceptible of more than one
interpretation, it followed a series of earlier questions about
pretrial allegations, and we cannot say that the district court's
interpretation of that question, as it was orally asked and in the
context in which it was asked, was erroneous. As phrased, that
question was improper, and therefore it was properly excluded.
Further, the question is susceptible of
an interpretation asking the juror how she would vote on the evidence
presented at trial. That is a question broader than the scope of
inquiry Morgan requires. The question approved in Morgan
was the following: "If you found [the defendant] guilty, would you
automatically vote to impose the death penalty no matter what the
facts are?" Morgan, 504 U.S. at 723 (emphasis added). The
Supreme Court felt such a question was necessary to identify jurors
who would always impose the death penalty upon conviction of a capital
offense "regardless of the facts and circumstances of conviction."
Id. at 735. Here, by contrast, the question was predicated on the
assumption that the juror had heard the evidence and was asked,
given that evidence and a finding of guilt, how she would vote on
the question of penalty. Since the juror had not yet heard the
evidence, the question improperly called for speculation and sought a
precommitment from the juror. Numerous courts have held Morgan-type
questions objectionable when the question was predicated on facts
specific to the case at issue or upon speculation as to what facts may
or may not be proven at trial. See Ex Parte Taylor, 666
So.2d 73, 81-82 (Ala. 1995); People v. Brown, 665 N.E.2d 1290,
1303 (Ill.), cert. denied, 117 S. Ct. 398 (1996); State v.
Kreutzer, 928 S.W.2d 854, 864 (Mo. 1996), cert. denied, 117
S. Ct. 752 (1997); State v. Kandies, 467 S.E.2d 67, 78-79 (N.C.),
cert. denied, 117 S. Ct. 237 (1996); Clagett v. Commonwealth,
472 S.E.2d 263, 269 (Va. 1996), cert. denied, 117 S. Ct. 972
(1997). Morgan was written as the reciprocal case to
Witherspoon, and it is designed to identify potential jurors who
would automatically impose the death penalty for conviction of a
capital offense. When a defendant seeks to ask a juror to speculate or
precommit on how that juror might vote based on any particular facts,
the question strays beyond the purpose and protection of Morgan.
ii. Specific Morgan Questions
In contrast to the single excluded
general Morgan question, the district court denied several
inquiries that we have termed "specific Morgan questions"
that is, case-specific questions on whether prospective jurors had
been so influenced by the facts of the bombing, as revealed by
pretrial publicity, that they believed death was the only appropriate
punishment for anyone convicted of the bombing. The court's refusal to
permit these questions was the subject of McVeigh's continuing
objection, and similar questions were refused during voir dire of the
jurors who eventually sat in seats 3 and 5.(34)
We find no abuse of discretion in the
district court's refusal to allow the questions. As discussed above,
Morgan does not require courts to allow questions regarding the
evidence expected to be presented during the guilt phase of the trial.
Further, we have held that Morgan does not require a court to
allow questions regarding how a juror would vote during the penalty
phase if presented with specific mitigating factors. See
Sellers, 135 F.3d at 1341-42; McCullah, 76 F.3d at 1114.
Other courts have issued similar rulings, holding that Morgan
does not require questioning about specific mitigating or aggravating
factors. See United States v. Tipton, 90 F.3d 861, 879
(4th Cir. 1996), cert. denied, 117 S. Ct. 2414 (1997);
People v. Jackson, 695 N.E.2d 391, 407 (Ill. 1998); Evans v.
State, 637 A.2d 117, 124-25 (Md. 1994); Holland v. State,
705 So.2d 307, 338-39 (Miss. 1997), petition for cert. filed
(U.S. Apr. 13, 1998) (No. 97-8681); Witter v. State, 921 P.2d
886, 891-92 (Nev. 1996), cert. denied, 117 S. Ct. 1708 (1997);
State v. Fletcher, 500 S.E.2d 668, 679 (N.C. 1998); State v.
Wilson, 659 N.E.2d 292, 300-01 (Ohio), cert. denied, 117
S. Ct. 129 (1996); State v. Hill, 501 S.E.2d 122, 127 (S.C.
1998). In fact, some of these courts have held that such questions not
only are not required by Morgan, but are also simply improper.
See Evans, 637 A.2d at 125 (explaining why 'stake-out'
questions are impermissible); Witter, 921 P.2d at 892 (same);
Fletcher, 500 S.E.2d at 679 (same).
Like the general Morgan question
discussed above, the questions McVeigh attempted to ask jurors 3 and
5, and the question subject to the continuing objection beginning with
juror 6, went beyond the scope of Morgan. Essentially, the
questions were designed to ascertain whether the jurors felt that the
circumstances of the bombing were so aggravating that no mitigating
factor could compensate. Thus, these were case-specific questions
seeking to determine what prospective jurors thought of the death
penalty in regards to this particular case, rather than the jurors'
core value system regarding imposition of the death penalty. Morgan,
however, is designed to illuminate a juror's basic beliefs "regardless
of the facts and circumstances of conviction," Morgan, 504 U.S.
at 735, not to allow defendants to pre-determine jurors' views of the
appropriate punishment for the particular crime charged. Morgan
does not require that the questions at issue be asked.
iii. "Life Qualifying" the Jury
We believe that McVeigh's right to "life
qualify" the jury was adequately protected in this case. First, all
prospective jurors were asked to fill out an extensive questionnaire
prior to voir dire. The questionnaire contained a specific inquiry
regarding prospective jurors' attitudes toward the death penalty,
whether the death penalty was justified in all cases, and what they
felt were the best reasons generally for imposing a death penalty and
for not imposing a death penalty. Each seated juror responded that he
or she could consider punishment less than death for a criminal act in
which someone is killed. Consequently, the defense was able to
ascertain even before voir dire whether the prospective jurors had an
inclination toward automatically imposing the death penalty. Second,
the court explained to prospective jurors that the law required the
jury to give consideration to mitigating circumstances before deciding
whether to impose the death penalty, and it asked prospective jurors
if they had any "personal, moral, or religious views either against or
in favor of the death penalty" and if they would be able to "give fair
and impartial consideration to all of the facts and circumstances
about this case and about Mr. McVeigh, before deciding what the
sentence should be . . . ." Each of the jurors answered that he or she
could. Third, each juror during questioning either by the government
or by the defense indicated that he or she would be fair and impartial
in deciding on a penalty. Finally, defense counsel was allowed to ask
appropriately phrased Morgan questions of many of the jurors,
and we see no reason why the identical questions would not have been
allowed during voir dire of all the jurors. McVeigh was not denied his
right to "life qualify" the jury by the district court's denial of his
questions. See Ramsey v. Bowersox, 149 F.3d 749, 1998 WL
300520, at *5-6 (8th Cir. June 10, 1998) (although defendant's
requested questions were denied, trial court asked sufficient
questions to determine whether prospective juror would automatically
vote for death penalty); Mackall v. Angelone, 131 F.3d 442, 451
(4th Cir. 1997) (same), cert. denied, 118 S. Ct. 907 (1998);
McQueen v. Scroggy, 99 F.3d 1302, 1329-30 (6th Cir. 1996) (same),
cert. denied, 117 S. Ct. 2422 (1997); Tipton, 90 F.3d at
878-79 (same); United States v. Flores, 63 F.3d 1342, 1354 (5th
Cir. 1995) (same), cert. denied, 117 S. Ct. 87 (1996).
b. Mu'Min v. Virginia
McVeigh also contends that the district
court's refusal to allow the questions subject to his continuing
objection those regarding whether the extensive pretrial publicity
about the bombing predisposed jurors to vote for the death penalty in
this case violated his right to inquire about bias resulting from
pretrial publicity. Essentially, he seeks to transport the principle
that the Constitution requires inquiry into whether prospective jurors
had "'such fixed opinions that they could not judge impartially the
guilt of the defendant,'" Mu'Min, 500 U.S. at 430 (quoting
Patton v. Yount, 467 U.S. 1025, 1035 (1984)), from the guilt phase
to the punishment phase of a capital case.
"Voir dire plays a critical
function in assuring the criminal defendant that his Sixth Amendment
right to an impartial jury will be honored." Rosales-Lopez v.
United States, 451 U.S. 182, 188 (1981) (plurality opinion).
However, "[t]o be constitutionally compelled, . . . the trial court's
failure to ask these questions must render the defendant's trial
fundamentally unfair." Mu'Min, 500 U.S. at 425-26.
In Mu'Min, the defendant had
escaped from a prison work crew during his lunch break and murdered a
woman. The murder resulted in a large number of articles discussing
the case and giving detailed information about Mu'Min and his criminal
history. See id. at 418. At voir dire, Mu'Min sought to
question prospective jurors in detail regarding the contents of the
news items to which they had been exposed, but the trial court refused;
instead, it asked the jurors generally whether "the information that
you heard, received, or read from whatever source, would that
information affect your impartiality in this case?" See id.
at 419-20. The Supreme Court held that Mu'Min's constitutional rights
were not violated by the trial court's refusal to voir dire
prospective jurors more specifically regarding the contents and detail
of the publicity to which they had been exposed. See id.
at 422, 431-32. It emphasized that the Constitution requires not
ignorant jurors, but jurors who can lay aside any preconceived notions
and judge the defendant impartially, see id. at 430, and
that, in making a determination of impartiality in cases involving
pretrial publicity, appellate courts should place "primary reliance on
the judgment of the trial court," id. at 427. In short, the
Constitution is satisfied when the defendant is afforded an impartial
jury which will decide the case on the evidence presented in court
rather than on information gained from publicity. See id.
at 425-26; Patton, 467 U.S. at 1035; Irvin, 366 U.S. at
McVeigh is correct that the principle
of juror impartiality should be applied equally to the penalty phase
as well as to the guilt phase. See Morgan, 504 U.S. at
729. However, Morgan did not abrogate Mu'Min's holding
that the Constitution does not mandate specific inquiries regarding
publicity; at least one court has held that "Morgan does not
create a constitutional right to ask voir dire questions about
the specifics of juror exposure to pretrial publicity and the content
of that publicity." State v. Moseley, 449 S.E.2d 412, 426-27 (N.C.
We do not believe that McVeigh's right
to an impartial jury was infringed by his inability to ask the
particular questions at issue. We readily acknowledge that some of the
questions posed by McVeigh might have helped the court and parties
better determine whether the prospective jurors were impartial as to
both guilt and penalty. However, because peremptory challenges are not
constitutionally required, "this benefit cannot be a basis for making
'content' questions about pretrial publicity a constitutional
requirement." See Mu'Min, 504 U.S. at 424-25. Rather,
such questions are required only if not asking them results in a
fundamentally unfair trial. See id. at 425-26. In this
case, the record reveals sufficient indicia of safeguards for us to
conclude that each prospective juror was impartial as to punishment,
and thus that McVeigh's trial was not fundamentally unfair.
First, during voir dire the trial court
emphasized to each juror that he or she must approach the case with an
open mind, must not have any preconceptions about either guilt or
punishment, and must make his or her own independent decision on the
basis of the facts and the law presented in court. The court received
from each juror an assurance that he or she could and would do so.(35)
Further, the government and McVeigh were able to ask a number of
questions regarding the prospective jurors' ability to set aside the
effect of any publicity they had seen. Some jurors were asked and
specifically stated that they could set aside the effect of any
publicity when deciding on an appropriate penalty, and others stated
more generally that they could set aside the effect of any publicity
in their role as jurors in deciding the case. Even though the defense
was not allowed to ask some specific questions regarding publicity and
the death penalty of jurors 3, 5, and 6-12, every seated juror stated
his or her willingness and ability to set aside the effect of
publicity and to approach the case with an open mind. Finally, the
voir dire questioning was reinforced during trial and during the
penalty phase with instructions that the jury was to consider only the
evidence presented in court and that jurors must disregard anything
they had read, seen, or heard outside of the courtroom.
Moreover, the factors we identified in
our discussion of Issue A above, in which we concluded that the jury
pool was not prejudiced by pretrial publicity regarding the alleged
confession, also indicate that the jury pool was not
unconstitutionally tainted by pretrial publicity in terms of
determining the proper penalty upon conviction. The change of venue,
for example, removed the trial from a locality in which "the opinions
expressed in recent televised interviews of citizens of Oklahoma
emphasiz[ed] the importance of assuring certainty in a verdict with an
evident implication that upon such a verdict death is the appropriate
punishment." United States v. McVeigh, 918 F. Supp. 1467, 1474
(W.D. Okla. 1996). In addition, there was nearly a two-year lag
between the graphic images of the bombing and the start of the trial,
allowing time for memories to fade.
Finally, we note that the jury
obviously was open to considering mitigating factors, because the
jurors unanimously found seven of the thirteen mitigating factors
McVeigh presented, including the sincerity of his beliefs regarding
the government's actions at Waco, Texas, and Ruby Ridge, Idaho; that
he received the Bronze Star for his Army service; that "he is a
patient and effective teacher when he is working in a supervisory
role"; and that he had no prior criminal record. Only two mitigating
factors were not found by any juror.
In sum, although asking at least some
of McVeigh's requested questions might have been the better course,
the questions were not constitutionally required to ensure an
impartial jury and thus we find no abuse of discretion in excluding
G. HOWE TESTIMONY AS MITIGATING EVIDENCE
McVeigh challenges the district court's
decision during the penalty phase to bar the re-proffered testimony by
Carol Howe. McVeigh contends that Howe's testimony about the
activities and beliefs of individuals at the Elohim City compound in
Stillwell, Oklahoma, would have shown that McVeigh was less culpable
for the Murrah Building bombing because other people were leaders and
organizers of the conspiracy. The court's decision to exclude this
evidence, McVeigh argues, violated his right to individualized
sentencing under both the Eighth Amendment and the Federal Death
Penalty Act of 1994, 18 U.S.C.A. §§ 3591-98 (West Supp. 1997). We
reject this claim because McVeigh failed to establish the relevance of
the Howe testimony in the penalty phase.
1. Standard of review
McVeigh's claim on this issue
implicates both constitutional and statutory standards for the
reception of mitigating evidence during the penalty phase of a capital
trial. Under the Eighth Amendment, "the sentencer in capital cases
must be permitted to consider any relevant mitigating factor."
Eddings v. Oklahoma, 455 U.S. 104, 112 (1982); see also
Dutton v. Brown, 812 F.2d 593, 601-02 (10th Cir. 1987) (en banc).
Similarly, under the federal death penalty statute, "The defendant may
present any information relevant to a mitigating factor." 18 U.S.C.A.
We review de novo the question of
whether a particular set of facts may be considered a mitigating
factor. See Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality
opinion). On the other hand, the abuse-of-discretion standard applies
to whether the Howe evidence was relevant to McVeigh's proffered
mitigating factor. See General Elec. Co. v. Joiner, 118
S. Ct. 512, 517 (1997).
McVeigh's proffered evidence on Elohim
City during the penalty phase, this time in the form of a written
proffer, largely tracked the oral proffer presented during the guilt
phase. The penalty phase proffer repeated the information concerning
anti-government sentiments at Elohim City and the interest of Elohim
City individuals in acquiring and using explosives. The principal
difference between the two proffers was the new allegation in the
penalty phase proffer that two Elohim City leaders, Dennis Mahon and
Andreas Strassmeir, had made three trips to Oklahoma City in the
winter of 1994-1995 specifically for the purpose of "casing" the
Murrah Building as one of several potential targets for a bombing.
The defense submitted its revised
proffer shortly before the close of evidence for the penalty phase.
During an in-chambers conference, the district court again excluded
the evidence. The district court offered no reasoning except to say
that it would "stand on its ruling"; thus, it appears that the court
continued to believe that the Howe testimony was "not sufficiently
relevant to be admissible."(36)
a. Mitigating nature of playing a "lesser
role" in a crime
The first question we must address is
whether McVeigh's claim that he played a lesser role in the conspiracy
to destroy the Murrah Building can even be properly classified as a
mitigating factor. McVeigh's contention here relies on the "catch-all"
mitigating factor in the Federal Death Penalty Act that allows a
defendant to assert any other "factors in the defendant's background,
record, or character or any other circumstance of the offense that
mitigate against imposition of the death sentence." See 18
U.S.C.A. § 3592(a)(8).(37) McVeigh's assertion of the "catch-all"
factor implicitly, and correctly, acknowledges that he cannot meet the
elements of the explicit statutory factor for "minor participation."
See 18 U.S.C.A. § 3592(a)(3).(38) For its part, the
government apparently believes that because McVeigh cannot meet the
elements of the "minor participation" mitigating factor, he is barred
from presenting mitigating evidence to support his claim of a "lesser
role" in the offense. See id. We disagree.
It has been the law of the land for
more than twenty years that a capital defendant is constitutionally
entitled to present any aspect of his character, record, or
offense in mitigation of his culpability for the crime. In Woodson
v. North Carolina, a controlling plurality of the Supreme Court
held that "in capital cases the fundamental respect for humanity
underlying the Eighth Amendment requires consideration of the
character and record of the individual offender and the circumstances
of the particular offense as a constitutionally indispensable part of
the process of inflicting the penalty of death." Woodson v. North
Carolina, 428 U.S. 280, 304 (1976) (plurality opinion) (citation
omitted). Another plurality of the Court reiterated this view in
Lockett, holding that "the Eighth and Fourteenth Amendments
require that the sentencer, in all but the rarest kind of capital
case, not be precluded from considering, as a mitigating factor,
any aspect of a defendant's character or record and any of the
circumstances of the offense that the defendant proffers as a basis
for a sentence less than death." Lockett, 438 U.S. at 604. And
finally, in Hitchcock v. Dugger, 481 U.S. 393, 398-99 (1987), a
unanimous Court held that its prior case law renders unconstitutional
any death penalty procedure that prevents a capital sentencer from
considering nonstatutory mitigating factors.
Congress recognized the import of this
case law when it drafted the Federal Death Penalty Act, including the
catch-all mitigating category under § 3592(a)(8). Any contention that
the "minor participation" mitigating factor in § 3592(a)(3) precludes
a mitigation claim based on evidence of a "lesser role" in the offense
ignores the plain language of § 3592(a)(8). Any other conclusion would
run afoul of the precept in Lockett that a capital defendant is
constitutionally entitled to offer in mitigation any aspect of
his character, record, or offense. See Lockett, 438 U.S.
b. Relevance of Carol Howe testimony to
We conclude that the appropriate
relevance standard in a federal capital sentencing hearing is the same
standard used throughout the federal courts under Federal Rule of
Evidence 401, i.e., whether the evidence has any tendency to make a
fact of consequence more or less probable. As a result, in light of
the catch-all mitigating factor in § 3592(a)(8), we must determine
whether the proffered testimony from Carol Howe had any tendency to
show something about Timothy McVeigh's character, record, or offense
that would mitigate against the imposition of a death sentence.
We conclude that the Howe testimony was
not relevant under this standard because there was a crucial hole in
the logic of McVeigh's proffer. McVeigh contended that the Howe
testimony would show that there "truly were 'others unnamed' involved
in different aspects of the broader conspiracy," and that therefore
McVeigh was less culpable. However, McVeigh never presented any
evidence showing that he was connected to this putative Elohim City
conspiracy, and Howe's proffered testimony made no connection between
McVeigh and Elohim City.(39) Without any evidentiary link
between McVeigh and Elohim City, there simply was no basis for the
jury to conclude that McVeigh had a "lesser role" in a broader Elohim
City conspiracy to bomb the Murrah Building. This hole in McVeigh's
chain of inferences renders the Howe testimony not relevant to this
H. WACO EVIDENCE
During the penalty phase, McVeigh
presented, and the district court allowed, evidence relevant to the
opinion he held at the time of the Oklahoma City bombing pertaining to
the events that occurred during the standoff between the federal
government and the Branch Davidians at Waco, Texas, from February 28,
1993, to April 19, 1993. This evidence consisted mainly of the
testimony of experts familiar with materials, such as video tapes,
magazine articles, and pamphlets, that McVeigh had likely seen prior
to the bombing which were critical of the government's actions at Waco.
However, McVeigh also sought to present evidence to which he had not
been exposed prior to the bombing that he claims tended to show that
the actions of the federal government during Waco were objectively
wrongful and outrageous. In particular, McVeigh sought to introduce
expert testimony, documentary films, and government reports critical
of the government's actions at Waco. Much of this material was not
even generated until after the Oklahoma City bombing had occurred.
McVeigh argues that this evaluative Waco evidence was necessary for
the jury to understand that his opinions regarding the events at Waco
were objectively reasonable. It is this second category of Waco
evidence that the district court refused to allow into the record.
There is no hint in the appellate
record that the district court limited McVeigh's ability to present
evidence regarding what he actually knew or thought of the events at
Waco, up to the time of the Oklahoma City bombing, or that the
district court denied him the opportunity to present to the jury his
views regarding Waco. McVeigh's attorneys were allowed to argue that
the events at Waco were both a motivating factor for the commission of
the crime and a mitigating factor with regards to punishment. In
short, the district court allowed evidence regarding the incident at
Waco to be admitted, but only that evidence which tended to show what
McVeigh knew of the Waco incident and his subjective perceptions of it
as of April 19, 1995. In the words of the court:
I don't intend to try Waco here at this
trial . . . it is one thing as to what Mr. McVeigh may understand and
his view of it . . . . And somewhere you have to draw the line between,
okay, we're not going to try what actually happened at Waco, but we
are going to receive evidence about what is perceived to have happened.
This admonition to the parties is
reflected in the penalty-phase opening statement in which McVeigh's
counsel asked the jury to:
take a look at . . . the reality of
what Mr. McVeigh believed happened at Waco. Now, we will not be
presenting to you a trial about Waco. We are not doing that. What we
are presenting to you and will be presenting to you is what Mr.
McVeigh believed happened at Waco, because that's what's important in
the calculus that is before you.
Several times during the penalty phase,
the court provided a cautionary instruction to the effect that the
events at Waco were "admitted only for the limited purpose of
explaining Timothy McVeigh's views, perceptions and beliefs . . . .
You are not here to determine what actually happened at Waco or to
make your own evaluation of the Government's conduct in that or any
other law enforcement activities." The jury was then presented,
inter alia, with the following mitigating factors:
2. Timothy McVeigh believed that the
ATF and FBI were
responsible for the deaths of everyone
who lost their lives at
Mt. Carmel, near Waco Texas, between
February 28 and April 19, 1993.
. . .
4. Timothy McVeigh believed that the
increasing use of military-style force and tactics by federal law
enforcement agencies against American citizens threatened an
approaching police state.
Timothy McVeigh's belief that federal
law enforcement agencies failed to take responsibilities for their
actions at Ruby Ridge and Waco, and failed to punish those persons
responsible, added to his growing concerns regarding the existence
of a police state and a loss of constitutional liberties.
The jury unanimously found each of
these mitigating factors to be present. McVeigh claims on appeal that
the district court erred in refusing to allow the jury to hear his
proffered evidence on the objective wrongfulness of the government's
actions at Waco.
1. Standard of Review
We review a district court's
determination that evidence is not relevant to a mitigating factor for
abuse of discretion. However, because as a matter of law the sentencer
must be allowed to consider all mitigating factors, see
Eddings v. Oklahoma, 455 U.S. 104, 113-14 (1982); Lockett v.
Ohio, 438 U.S. 586, 604 (1978) (plurality opinion), we review de
novo a trial court's decision to prevent the jury from considering a
Under the federal death penalty statute,
a defendant has the right to present mitigating evidence pertaining to
"the defendant's background, record, or character or any other
circumstances of the offense that mitigate against imposition of the
death sentence." 18 U.S.C.A. § 3592(a) (West Supp. 1997); cf.
Lockett, 438 U.S. at 604 (the sentencer must "not be precluded
from considering, as a mitigating factor, any aspect of a
defendant's character or record and any of the circumstances of the
offense that the defendant proffers as a basis for a sentence less
Evaluative evidence of the events at
Waco that was unknown to McVeigh at the time of the bombing, including
expert opinion evidence of the government's handling of that crisis,
is not an aspect of McVeigh's character, McVeigh's record, or a
circumstance of the offense of which he was convicted, nor does it
meet the definition of any other statutorily enumerated mitigating
factor. McVeigh was not involved in the events at Waco; thus what
actually happened there, and what experts think of what happened, is
not part of his character. Nor is it part of the bombing, which
occurred two years later. Rather, only what McVeigh subjectively knew
and believed as of the time of the Oklahoma City bombing about the
events at Waco and the government's actions there qualify as
mitigating factors. Thus, we find no error here.
Having determined that the proffered
Waco evidence unknown to McVeigh at the time of the bombing was not in
and of itself a mitigating factor, we must next determine whether it
was nonetheless relevant to an enumerated mitigating factor, and
whether the district court thereby abused its discretion in
disallowing it. Two Supreme Court cases are somewhat instructive on
this point. First, in Skipper v. South Carolina, 476 U.S. 1
(1986), the trial court denied the defendant's request to present
evidence to the jury as to his good behavior in jail during the time
before trial as relevant mitigating evidence. The Supreme Court held
that this was reversible error because "a defendant's disposition to
make a well-behaved and peaceful adjustment to life in prison is
itself an aspect of his character that is by its nature relevant to
the sentencing determination." Id. at 7. Under Skipper,
any evidence that tends to shed light on the defendant's character is
relevant mitigating evidence, and the defendant must be allowed to
present it to the jury. See id. at 8; see also
Dutton v. Brown, 812 F.2d 593, 601-02 (10th Cir. 1987) (en banc) (mother's
proffered testimony as to defendant's family background, medical
history, education, and personality traits relevant to defendant's
character). Second, in Simmons v. South Carolina, 512 U.S. 154,
163-64, 168-69 (1994) (plurality opinion), the Supreme Court concluded
that relevant penalty stage evidence included evidence that the
defendant would be ineligible for parole if given a life sentence,
once the government put at issue the defendant's future dangerousness.
Taken together, Skipper and
Simmons stand for the proposition that proffered evidence is
relevant to death penalty sentencing if (1) it is probative of an
enumerated mitigating factor, especially some aspect of the
defendant's character, or (2) it is offered in rebuttal to an
evidentiary showing made by the prosecution in support of conviction
or an aggravating factor. The second prong is supported by the Court's
recent opinion in O'Dell v. Netherland, 117 S. Ct. 1969,
1973-74 (1997), in which the Court examined Simmons and
reiterated the Simmons rule that the prosecution's showing of a
defendant's future dangerousness gives rise to a due process right to
"deny or explain" that showing. The objective Waco evidence proffered
by McVeigh has no relevance to any aspect of McVeigh's character, or
record, or the circumstances of the crime, or any other enumerated
mitigating factor. Information about what actually happened at Waco
and the opinion of experts, including experts working for the
government, that the government mishandled the siege sheds no light on
McVeigh's character, his record, or the circumstances of his crime, to
the extent that the information was not within McVeigh's knowledge at
the time of the bombing. Thus, the district court did not err in
excluding such evidence.
Next, we ask whether McVeigh had a
right to present this evidence in response to a prosecutorial "showing"
that his beliefs about the events at Waco were objectively
unreasonable. McVeigh points to the following: (1) in its guilt-phase
closing argument, counsel for the government stated that McVeigh's
reliance on the events at Waco as justification for his acts was "poorly
reasoned"; (2) during cross-examination of penalty phase witness Dick
Reavis, counsel for the government asked the witness if one of the
video tapes on Waco viewed by McVeigh before the bombing was produced
by a biased and potentially paranoid anti-government individual,
suggested that some of the videos viewed by McVeigh on the topic of
Waco featured statements by members of the Branch Davidians who are "convicted
felons," and asked the witness whether the videos seen by McVeigh
could have been inaccurate and deliberately misleading; and (3) at the
penalty phase closing arguments, a government prosecutor opined that
McVeigh entertained "misperceptions" about the Waco siege and that his
explanation for his anger towards the government was "pathetic."
Counsel for McVeigh did not object to these statements.
We find that these isolated incidents
did not rise to the level of a "showing" by the government that
McVeigh's beliefs about Waco were unreasonable. The objective validity
of McVeigh's beliefs was never submitted as an issue for the jury to
determine at the guilt phase, nor was the objective unreasonableness
of his beliefs presented as an aggravating factor at the penalty phase.
At no time did the government present any evidence tending to show
that McVeigh's beliefs were objectively unreasonable.
In short, the three incidents at issue
were nothing more than argument of, and examination by, government
counsel. Because McVeigh's counsel did not object to them, we review
for plain error.(41) See United States v. Oberle,
136 F.3d 1414, 1421 (10th Cir.), petition for cert. filed (U.S.
June 29, 1998) (No. 98-5084); United States v. Nichols, 21 F.3d
1016, 1019 (10th Cir. 1994). Even if such statements by government
counsel may have been improper, we must determine if they warrant
overturning McVeigh's sentence. See United States v. Ivy,
83 F.3d 1266, 1288 (10th Cir.), cert. denied, 117 S. Ct. 253
(1996). "[R]eversal is appropriate only if, after reviewing the entire
record, we conclude that the error is obvious and one that would
undermine the fairness of the trial and result in a miscarriage of
justice." Oberle, 136 F.3d at 1421 (quotation omitted); see
Hoxsie v. Kerby, 108 F.3d 1239, 1245 (10th Cir.), cert.
denied, 118 S. Ct. 126 (1997); Ivy, 83 F.3d at 1288.
At the beginning of McVeigh's trial the
court instructed the members of the jury that statements by counsel
during opening and closing statements are not evidence. This
prophylactic instruction, coupled with the broad scope of this trial,
the vast amount of evidence presented to the jury at both the guilt
and penalty phases, and the insignificance of the few isolated
incidents in which the government disparaged the reasonableness of
McVeigh's Waco views, lead us to the conclusion that these statements
were clearly harmless and did not amount to plain error. The isolated
statements by the government prosecutors at issue here simply do not
qualify as "'circumstances in which a miscarriage of justice would
otherwise result'" in the face of this court's inaction. Nichols,
21 F.3d at 1019 (quoting United States v. Young, 470 U.S. 1, 15
I. PENALTY PHASE VICTIM IMPACT TESTIMONY
During the penalty phase of the trial,
the government presented the testimony of thirty-eight
witnesses who described the impact of the bombing. These witnesses
consisted of twenty-six relatives of deceased victims, three injured
survivors, one employee of the Murrah Building day care center, and
eight rescue and medical workers. Although significant in number,
these witnesses comprised an extremely small percentage of the number
of potential witnesses the government might have called to testify
about the 168 victims who died in the blast and the impact of the
explosion on the numerous injured victims. McVeigh challenges the
testimony of twenty-seven of these witnesses, arguing that their
testimony injected a constitutionally intolerable level of emotion
into the proceeding(42) and resulted in the imposition of a
capital sentence based on passion rather than reason in violation of
Payne v. Tennessee, 501 U.S. 808 (1991).
1. Payne v. Tennessee
Overruling Booth v. Maryland,
482 U.S. 496 (1987), the Supreme Court in Payne held that the
Eighth Amendment does not bar the admission of victim impact testimony
in the sentencing phase of a capital trial: "[V]ictim impact evidence
. . . is designed to show . . . each victim's uniqueness as an
individual human being." Payne, 501 U.S. at 823 (internal
Victim impact evidence is simply
another form or method of informing the sentencing authority about the
specific harm caused by the crime in question. . . . [A] state may
properly conclude that for the jury to assess meaningfully the
defendant's moral culpability and blameworthiness, it should have
before it at the sentencing phase evidence of the specific harm caused
by the defendant.
Id. at 825.
[E]vidence about the victim and about
the impact of the murder on the victim's family is relevant to the
jury's decision as to whether or not the death penalty should be
imposed. There is no reason to treat such evidence differently than
other relevant evidence is treated.
Id. at 827. Thus, Payne
allows the prosecution to introduce evidence during the penalty phase
that provides "a quick glimpse of the life petitioner chose to
extinguish" in order to show the value of the victim's loss to society.
Id. at 830 (O'Connor, J., concurring) (quotation omitted).
However, Payne did not overrule the prohibitions in Booth
against the admission of "information concerning a victim's family
members' characterization of and opinions about the crime, the
defendant, and the appropriate sentence."(43) Id. at
835 n.1 (Souter, J., concurring). In addition, the Supreme Court
provided that "[i]n the event that evidence is introduced that is so
unduly prejudicial that it renders the trial fundamentally unfair, the
Due Process Clause . . . provides a mechanism for relief." Id.
at 825 (citing Darden v. Wainwright, 477 U.S. 168, 179-83
(1986)). We review de novo alleged violations of the Eighth Amendment
and constitutional due process. See Nguyen v. Reynolds,
131 F.3d 1340, 1355 (10th Cir. 1997) (Eighth Amendment), petition
for cert. filed (U.S. May 8, 1998) (No. 97-9448); United States
v. One Parcel of Real Property Described as Lot 41, 128 F.3d 1386,
1391 (10th Cir. 1997) (due process).
Payne allows the introduction of
victim impact testimony to aid the jury in making a "reasoned moral
response" when imposing sentence upon a defendant convicted of a
capital offense. See Penry v. Lynaugh, 492 U.S. 302, 319
(1989) (quotation and emphasis omitted). First, the sentence must be
the result of a reasoned decision. The evidence must not be so unduly
prejudicial that its admission allows emotion to overwhelm reason.
Second, the sentence must be based on moral considerations. Because
the consequences of the crime are an important ingredient in the moral
equation, the government can present testimony demonstrating the harm
caused by the defendant's actions. Third, the sentence must reflect
the jury's judgment. The jury must balance all of the relevant
mitigating and aggravating factors in determining an appropriate
2. McVeigh's Objection
On appeal, McVeigh challenges the
introduction of the following six categories of victim impact
testimony: (a) last contacts with a deceased victim; (b) efforts to
learn the fate of a victim; (c) thoughts on learning of a victim's
death; (d) life history of a victim; (e) pure love and innocence of
children killed by the explosion; and (f) efforts to cope with loss by
the family and relatives of a deceased victim. McVeigh also contends
that the cumulative impact of the challenged testimony inevitably
influenced the jury to render a sentence based on passion rather than
reason in violation of Payne.
However, McVeigh's only direct
objection to victim impact testimony during the penalty phase of the
trial came when the jury was in recess after the first nine victim
impact witnesses (David Klaus, Diane Leonard, Mathilda Westberry, John
David Florence, Teresa Brown, Sharon Medearis, Dora Reyes, Pamela Sue
Whicher and Kathleen Treanor) had already testified. As a result, we
review the admission of the testimony of these nine witnesses for
plain error. See United States v. Hollis, 971 F.2d 1441,
1454 (10th Cir. 1992) ("We apply a plain error analysis even when the
error to which the defendant failed to object is of constitutional
dimension."). We note that several of the key witnesses specifically
challenged by McVeigh on appeal were included among those first nine
witnesses. In addition, McVeigh's objection to the remaining testimony
at issue only took the form of a continuing objection.(44)
The record reveals no further objections lodged by McVeigh to any
particular testimony.(45) Once again, we observe that a
continuing objection was not appropriate in this situation. The
precise nature of McVeigh's continuing objection was not clear, nor
was it obvious how such objection was to be applied to each successive
Nevertheless, because the district
court granted the objection and clarified its precise scope, we deem
the continuing objection to have preserved the issue for appeal.
However, the district court only granted a continuing objection
covering "testimony that . . . goes beyond the impact on the lives of
the witnesses," and thus we limit the objection to the precise scope
outlined by the district court. The limited scope of the objection, at
most, could be argued to cover the testimony regarding the life
history of a victim and the pure love and innocence of children killed
by the explosion. Giving McVeigh the benefit of the doubt that this
objection was couched in constitutional terms, we review de novo the
introduction of those two categories of testimony, except for the
testimony of the first nine witnesses. We review the admission of the
remainder of the contested victim impact testimony for plain error. We
will also assume that McVeigh adequately raised below his claim that
the cumulative impact of the testimony violated his due process rights.
Thus, we review de novo the question of the cumulative impact of the
testimony. We find that most of the challenged testimony did not go "beyond
the impact on the lives of the witnesses" because the impact on the
life of a witness certainly includes the impact on that witness'
family as observed by the witness.
We find no constitutional error in the
admission of the challenged victim impact testimony.(46)
The devastating effects that the deaths of the victims had on their
families and loved ones is "certainly part and parcel of the
circumstances" of the crime properly presented to the jury at the
penalty phase of trial. Bonin v. Vasquez, 807 F. Supp. 589, 613
(C.D. Cal. 1992), aff'd, 59 F.3d 815 (9th Cir. 1995).
a. Last Contacts
McVeigh criticizes the introduction of
testimony about witnesses' last contacts with deceased family members,
including Whicher's pre-continuing objection description of her last
contacts with her husband and her children's feelings of regret at not
hugging their father good-bye that morning, Treanor's pre-continuing
objection account of her now deceased daughter's giving "me a real
hard kiss on the lips and hugg[ing] me again and . . . rubb[ing] noses,"
and Gary Campbell's pride in watching his daughter who died in the
blast show him her office and talking about her desires to succeed in
her career. All of this testimony was properly admitted under Payne
as relevant to understanding the uniqueness of the life lost and the
impact of the death on each victim's family.
b. Efforts to Discover the Fate of Victims
McVeigh challenges the admission of
testimony describing witnesses' often agonizing efforts to find out
what happened to their loved ones. For example, McVeigh highlights the
following pre-continuing objection testimony: Leonard's searches of
various hospitals looking for her husband; Florence's week-long wait
to learn the fate of his wife; and Treanor's realization that her in-laws
and her young daughter were at the Murrah Building for an appointment
at the Social Security office the morning of the explosion. This type
of testimony is well within the limits set by Payne, as even
McVeigh's counsel admitted during the penalty phase.
c. Impact on Learning of Death
McVeigh contests the following pre-continuing
objection testimony: Westberry's description of her grandson's
uncontrollable crying on hearing of her husband's death; Whicher's
recollection of "screaming out that I wanted to die" and frightening
her children; and Treanor's recounting of the recovery and return of
her deceased daughter's hand six months after the explosion. McVeigh
also takes exception to Gregory Sohn's testimony about breaking down
upon learning of his wife's death and Sharon McCullough's account of
her son's cries of "I don't want my dad to be dead" as he saw pictures
of the remains of the Murrah Building on television and the prayer he
offered later when he calmed down. Payne explicitly allows for
the introduction of this kind of evidence describing the impact of a
victim's death on a witness and his or her family. See Payne,
501 U.S. at 827; Gretzler v. Stewart, 112 F.3d 992, 1009 (9th
Cir. 1997) (evidence about "the impact of the murder on the victim's
family is relevant and admissible at a death penalty sentencing
proceeding"), cert. denied, 118 S. Ct. 865 (1998).
d. Victim Histories
Numerous witnesses, both pre- and post-continuing
objection, testified about the professional and personal histories of
victims who perished in the bombing, including reflections on the
admirable qualities of the deceased. McVeigh argues that this
testimony impermissibly allowed witnesses to eulogize their loved ones.
We disagree. Although victim histories arguably were covered by
McVeigh's continuing objection, the unique qualities of a murdered
individual and his or her life accomplishments constitute the core
impact evidence describing a victim's "uniqueness as an individual
human being" allowed by Payne. Payne, 501 U.S. at 823;
see also Wiley v. Puckett, 969 F.2d 86, 105 (5th Cir.
1992) (victim's wife properly testified about places she and her
husband had lived and her husband's character).
e. Pure Love and Innocence of Children
In discussing the suffering of children
affected by the bombing, McVeigh contends that the government's
witnesses prejudicially described the innocence and unconditional love
manifested by children. For example, Don Browning related the story of
a little girl from the day care center who had been outside the
building when the bomb exploded. The girl approached a police officer
and his dog, hugged the dog, and said, "Mr. Police Dog, will you find
my friends?" Also, Glenn Seidl recalled his son Clint's counselor
telling him that Clint was concerned because "Clint has never seen you
cry. He's never seen you scared. He thinks the people that have done
this are after you and him . . . and this very professional lady gets
a tear in her eye and says that . . . [Clint] wants to pay" the
counselor the $180 he has saved in his bank account to help his father.
Even though covered by McVeigh's continuing objection, we do not see
how the admission of this testimony violated Payne. If love and
innocence are particular qualities of the affected children, then
informing the jury of that fact is not improper. See, e.g.,
Payne, 501 U.S. at 814-815, 827 (allowing grandmother's testimony
that grandson who lost his mother and his sister "cries for his mom,"
"doesn't seem to understand why she doesn't come home," misses his
sister and worries about her); Washington v. Murray, 952 F.2d
1472, 1480 (4th Cir. 1991) (mother's testimony about "the impact of
the victim's death on her small children" analogized to evidence
properly admitted under Payne).
f. Impact on Families
Discussions of the impact of the blast
on the families of the victims represents the bulk of the testimony
challenged by McVeigh. A few examples of this evidence include:
Leonard's adult son, who was married some time after the bombing, came
to her at 3:00 a.m. one morning "crying very hard. And he said: 'I
want my dad back. I want him to see me graduate from college. I want
him to meet my wife and be at my wedding. I want him to see my first
child.'" One of Whicher's daughters told her:
[S]he has learned to hate, which is a
horrible thing to hear coming from your 16-year-old baby. . . . She
wrote a paper for school. The topic was a day that changed her life. .
. . The paper said that "I never knew such a dark, horrible place
existed until I had to go there; and I'm crawling my way out as best I
Todd McCarthy testified, "I am now
charged with teaching my son love and compassion when all he sees is
hate. And that's a job I don't think anybody would want to have."
Michael Lenz, whose wife and unborn child were killed, nearly
[T]here was a point where I actually
stuck a pistol in my mouth. I couldn't pull the trigger, thank God. .
. . [W]hen I reached that low point in my life, there is nothing,
nothing more dangerous than a man who has no reason to live. I've been
I have my wife's coffee cup that the
children bought for her that says "No. 1 Mommy." Inside of that is our
marriage license, two rings, and a death certificate. Sitting across
the top of the table . . . is the cap that they were able to salvage
that was her headgear while in uniform. . . . [I take these items]
everywhere I go.
Poignantly, Sharon Coyne described the
loss of her fourteen-month-old daughter:
I think that my fears of her dying when
she was first born being confirmed was the very worst thing for me.
When we drove home that night, the highway overlooked the Murrah
Building; and by that time, it was very dark and it was raining and it
was cold. And I truly, truly believed that my daughter was alive. You
know, you don't ever thinkyou don't ever think that your own child is
dead. And at this point, I thought that maybe she was in fact still in
the building. And I think my biggest fear at that point was that she
sat there in this building and she'd been there for 12 hours, she was
in a dirty diaper, she didn't have a bottle, she didn't have me to
hold her, and she was afraid. And I could picture her just saying "Momma,"
and I felt so guilty leaving this place.
Payne specifically allows
witnesses to describe the effects of the crime on their families.
See Payne, 501 U.S. at 827. All of the evidence challenged
by McVeigh served that purpose. Thus, we find no error.
g. Cumulative Impact
Taken as a whole, this evidence is
poignant and emotional. The question before us, then, is whether
allowing such a substantial amount of victim impact testimony
reflecting the magnitude of such a large-scale crime violates the
limits on such testimony set forth in Payne. We conclude that
it does not.
Payne allows the introduction of
victim impact evidence in order to allow the jury to understand the
consequences of the crime committed. See Payne, 501 U.S.
at 825-26 ("[T]here is nothing unfair about allowing the jury
to bear in mind [the specific] harm [caused by the defendant] at the
same time as it considers the mitigating evidence introduced by the
defendant.") (emphasis added); see also Williams v.
Chrans, 945 F.2d 926, 947 (7th Cir. 1991) (holding that the
prosecution "should not be required to present victim impact evidence
. . . that [is] devoid of all passion. Such sterile prosecution of
heinous crimes cannot be expected, let alone required.").
The bombing of the Murrah Building was
the deadliest act of domestic terrorism in the history of the United
States. The magnitude of the crime cannot be ignored. It would be
fundamentally unfair to shield a defendant from testimony describing
the full effects of his deeds simply because he committed such an
outrageous crime. The sheer number of actual victims and the horrific
things done to them necessarily allows for the introduction of a
greater amount of victim impact testimony in order for the government
to show the "harm" caused by the crime. In addition, the jury could
not have been shocked to learn that some victims had exemplary
backgrounds and poignant family relationships, nor that they left
behind grief-stricken loved ones. As Justice Souter eloquently wrote:
Murder has foreseeable consequences.
When it happens, it is always to distinct individuals, and, after it
happens, other victims are left behind. Every defendant knows, if
endowed with the mental competence for criminal responsibility, that
the life he will take by his homicidal behavior is that of a unique
person, like himself, and that the person to be killed probably has
close associates, "survivors," who will suffer harms and deprivations
from the victim's death. Just as defendants know that they are not
faceless human ciphers, they know that their victims are not valueless
fungibles. . . . The fact that the defendant may not know the details
of a victim's life and characteristics, or the exact identities and
needs of those who may survive, should not in any way obscure the
further facts that . . . harm to some group of survivors is a
consequence of a successful homicidal act so foreseeable as to be
Payne, 501 U.S. at 838 (Souter,
We also observe that in this case the
government deliberately limited the victim impact testimony it chose
to present, saying nothing about the vast majority of the 168 people
who died in the blast. Nor did the government attempt to introduce any
gruesome post-mortem photographs of the deceased. The testimony of the
government's witnesses occupied only about two days during the penalty
phase of trial. In addition to the government's self-restraint, the
district court took a number of steps that significantly minimized the
overall impact of the testimony. First, the district court issued a
number of rulings prior to the commencement of the penalty phase on
various motions in limine to restrict evidence by the government such
as photographs and exhibits, a significant portion of which the
district court excluded.(47) Second, at the conclusion of
those rulings, the district court stated that it would allow "objective"
evidence describing the "fact" of "the loss of . . . people to an
agency and . . . the loss of a family member . . . the empty chair,
but not the emotional aspect of that, the grieving process, the
mourning process."(48) The government followed this
instruction, and we have found few instances where the type of non-objective
emotional testimony described by the district court was admitted.(49)
Third, at the close of the penalty phase, the judge instructed the
jury not to be swayed by emotion,(50) and we presume that
the jury honored those instructions. See United States v.
Hatatley, 130 F.3d 1399, 1405 (10th Cir. 1997). Finally, the jury
deliberated for two days and made specific findings in McVeigh's favor
on a number of mitigating factors. We consider all of these factors
persuasive evidence that the jury made a reasoned, moral judgment.
Viewed in its entirety, we are well
satisfied that the victim impact testimony did not move the jury to
impose a sentence based on passion rather than reason and that the
jury based its decision on a reasoned, moral judgment.
For the foregoing reasons, Timothy
McVeigh's conviction and sentence are AFFIRMED.
1.On appeal, we review the
evidence both direct and circumstantial, together with the
reasonable inferences to be drawn therefrom in the light most
favorable to the government. See United States v. Copus,
110 F.3d 1529, 1534 (10th Cir. 1997).
2.McVeigh's counsel, Stephen
Jones, told the court, "Just so the record is clear, our position is
that we think that the Court should proceed; that we'll do the voir
dire, and if we can seat a jury, then we seat a jury. . . . That will
be [the] acid test."
3.After the release of the
Playboy story McVeigh changed course and requested a
continuance. See McVeigh, 955 F. Supp. at 1281. The
government urges us to limit our review of the publicity to the
incremental prejudice caused by the release of the Playboy
story. In short, the government seems to argue that by failing to ask
for a continuance immediately after the release of the Dallas
Morning News story, McVeigh waived all claims to prejudice
stemming from that story.
Because the information reported in the
Dallas Morning News story was amplified by the media after the
time McVeigh chose to go ahead and up until the time he requested a
continuance, we do not deem McVeigh's earlier decision to go forward
in the face of the Dallas Morning News story to qualify as a
waiver as to all of the influences of that story upon the media and
the public. Thus, we review all of the publicity, including the
Dallas Morning News report, for its cumulative effect on the jury
pool. However, we do find the decision by McVeigh and his legal team
to go forward with jury selection despite the publicity following in
the immediate wake of the Dallas Morning News story to be
relevant evidence that the nature of the reports was not such, at
least at that time, that would preclude seating a fair and impartial
4.McVeigh urges this court
to compare the circumstances of this case with those of Coleman v.
Kemp, one of the extremely rare cases in recent history in which a
federal court of appeals has found presumed prejudice. See
Coleman v. Kemp, 778 F.2d 1487, 1538 (11th Cir. 1985). However,
the circumstances and nature of the publicity of the case before us
are a far cry from those in Coleman, both in pitch and
character. Before Coleman's trial, highly prejudicial pretrial
publicity was widely disseminated in the sparsely populated rural
county where the violent murders occurred and from which the jury pool
was drawn. Moreover, the victims were well-known and well-liked in the
community from which the jury pool was selected, and it was revealed
at voir dire that several of the seated jurors personally knew the
victims, and one had attended the funeral of five of the victims.
See id. at 1539. At an evidentiary hearing held on remand,
there was testimony by local citizens and reporters that the community
had irrevocably made up its mind as to the guilt of the defendants and
the appropriate penalty. See id. In short, "everyone" in
the close-knit community from which the jury was drawn "knew that [the
defendants] were guilty and everyone knew they should be electrocuted."
Id. The impact of the pretrial publicity in that case upon the
seated jurors was much more pervasive than was the case with the
5.In his brief before this
court, McVeigh argues, at some length, that if news of a "confession"
were brought to the attention of the jury during a criminal trial, the
court would have no choice but to grant a new trial. The case cited by
McVeigh, United States v. Thompson, 908 F.2d 648 (10th Cir.
1990), involved publication during trial in a local newspaper of the
defendant's aborted guilty plea. This court held that the trial
court's failure to question the jury about possible exposure to the
publicity and to take measures to ensure that it had no effect on the
outcome of the trial constituted abuse of discretion and necessitated
a new trial. See id. at 650-52. McVeigh relies on
Thompson to urge this court to equate the situation where the
prejudicial reports are published during trial to situations
where they are published before trial. In effect, McVeigh
argues that the trial begins at the moment summons notices are sent
out to potential jurors. This argument ignores the fact that when such
publicity occurs before voir dire, the court and the defendant still
have available powerful mechanisms to ensure juror impartiality,
namely voir dire and the potential of a change in venue. For this
reason, inter alia, we find that the two situations are readily
distinguishable. See, e.g., United States v. Aragon, 962
F.2d 439, 441 n.3 (5th Cir. 1992) (distinguishing between pretrial
publicity and midtrial publicity and noting that a stricter standard
applies to the latter).
6.According to the
government, only forty out of the ninety-nine venirepersons reported
hearing about the alleged confession. McVeigh does not dispute this
7.The facts of Irvin
can easily be distinguished from those before us here. In Irvin,
eight of the twelve seated jurors indicated during voir dire that they
had already made up their minds that the defendant was guilty. See
Irvin, 366 U.S. at 727. Given that circumstance, the Supreme
Court held that "[w]here so many, so many times, admitted prejudice .
. . [jurors'] statement[s] of impartiality can be given little weight."
Id. at 728. To the contrary, none of the seated jurors in the
case before us indicated that he or she had already made up his or her
mind as to McVeigh's guilt, and all indicated that they could and
would remain impartial until the end of the trial.
8.Although there may be some
doubt whether this statement was actually made, for the purposes of
this appeal the government concedes we must treat the report as true.
9.In the caption of
McVeigh's brief, he characterizes this issue in constitutional terms,
contending that the exclusion of his proffered evidence denied him "A
Fundamentally Fair Trial." McVeigh's discussion, however, is almost
entirely devoted to evidentiary considerations under the Federal Rules
of Evidence. Only at the end of his argument does McVeigh contend that
the denial of his proffered evidence resulted in a constitutionally
defective trial, relying on Richmond v. Embry, 122 F.3d 866,
872 (10th Cir. 1997), cert. denied, 118 S. Ct. 1065 (1998). In
Richmond, we held that the exclusion of evidence can result in
a fundamentally unfair trial only if the excluded evidence was so
"material" that it would have created "reasonable doubt that did not
exist without the evidence." See id. We have no
difficulty in concluding on this record that McVeigh has failed to
make an adequate showing under Richmond to sustain a
10.This circuit has required
on-the-record findings for a trial court's balancing under Rule 403
when the disputed evidence is offered pursuant to one of the
specialized character evidence rules. See United States v.
Castillo, 140 F.3d 874, 884 (10th Cir. 1998) (remanding for on-the-record
Rule 403 balancing of evidence offered pursuant to Rule 414);
United States v. Guardia, 135 F.3d 1326, 1331 (10th Cir. 1998) (requiring
"a clear record of the reasoning behind" a trial court's Rule 403
balancing of evidence offered pursuant to Rule 413); United States
v. Kendall, 766 F.2d 1426, 1437 (10th Cir. 1985) (requiring a
trial court to provide "specific and clear reasoning and findings in
the trial record" to support a decision under Rules 403/404(b)).
11.The government responded
that it had followed up Howe's report of seeing the "John Doe"
suspects, and its investigators concluded that these brothers were not
involved in the Oklahoma City bombing.
12.In 1996 Congress revised
§ 2332a(a)(2) to include the element (which previously had only been
implied) that "the results of such use affect interstate or foreign
commerce, or, in the case of a threat, attempt or conspiracy, would
have affected interstate or foreign commerce." See Pub. L.
104-132, § 725(1)(C). Because this bombing took place in 1995, we
address the statutory text as it existed at that time. However, we
note that the district court identified the jurisdictional element of
effect on interstate commerce as an implicit requirement of the pre-amendment
statute and required the government to prove that the bombing had an
effect on interstate commerce.
13.In an argument raised for
the first time on appeal, McVeigh urges us to analogize § 2332a to 18
U.S.C. §§ 924(c) & (j). Section 924(j) apportions punishment according
to intent by providing:
A person who, in the course of a
violation of subsection (c), causes the death of a person through the
use of a firearm, shall
(1) if the killing is a murder (as
defined in section 1111), be punished by death or by imprisonment for
any term of years or for life; and
(2) if the killing is a manslaughter
(as defined in section 1112), be punished as provided in that section.
Even if this argument were not waived
for failure to raise it in the district court, see Tele-Communications,
Inc. v. Commissioner of Internal Revenue, 104 F.3d 1229, 1233
(10th Cir. 1997), we would find it unpersuasive because this is not a
§ 924(c) case. Further, the wording of § 924(j) actually works against
McVeigh, because it shows that Congress is capable of differentiating
permissible punishments on the basis of intent when it chooses to do
articulated by Tison and Enmund for imposing the death
penalty are satisfied. The penalty phase jury verdict form instructed
For each of the following, answer "Yes"
or "No" as to whether you, the jury, unanimously find that the
government has established beyond a reasonable doubt that the
defendant, Timothy James McVeigh, acted with the specified criminal
intent to cause death:
The defendant intentionally killed
The defendant intentionally inflicted
serious bodily injury that resulted in the death of the victims.
The defendant intentionally
participated in an act, contemplating that the life of a person
would be taken or intending that lethal force would be used against
a person, and the victim(s) died as a result of that act.
The defendant intentionally and
specifically engaged in an act of violence, knowing that the act
created a grave risk of death to a person, other than a participant
in the offense, such that participation in the act constituted a
reckless disregard for human life and the victim(s) died as a direct
result of the act.
The jury answered "Yes" to each of the
four propositions. These findings support the imposition of the death
penalty. See Tison, 481 U.S. at 158; Enmund, 458
U.S. at 797.
15.The removal of the "intent
to kill" allegations from Counts I and II of the indictment does not
mean that the criminal intent elements of those crimes were not
alleged in the indictment. The indictment specifically alleges for
each of the mass destruction offenses that McVeigh acted "knowingly,
intentionally, willfully, and maliciously."
16.Section 844(f) was also
amended in 1996. See Pub. L. 104-132, § 708(a)(2). As with §
2332a, we address the text of the statute as it existed in 1995.
17.The structure of the
redrafted version of § 844(f) makes it even more clear that the phrase
"if death results" is a sentence enhancement rather than a substantive
offense. See 18 U.S.C.A. § 844(f) (West Supp. 1997).
18.McVeigh does not argue
that he was entitled to instructions on lesser-included offenses other
than second-degree murder, and the record does not indicate that he
requested instructions on any offenses other than second-degree murder.
19.The court stated:
[T]his is an all-or-nothing verdict on
the murder counts, because I don't see how the jury could rationally
say, given the view of the evidence they'd have to take to reach a
guilty verdict, that Timothy McVeigh was involved in this bombing [but]
that there wasn't any premeditation in it.
20.The government here did
not charge McVeigh with felony murder.
21.We are not persuaded by
the hypothetical argument presented by McVeigh on appeal, in which he
suggests that even if he premeditated the use of the bomb, he may not
have known that the bomb would be detonated at a time at which it was
likely that persons would be killed, and thus the jury could have had
a reasonable doubt whether he premeditated murder. Without any
evidence affirmatively present in the record to support such a theory,
the question was not sufficiently in dispute that it obligated the
district court to give instructions on second-degree murder. See
United States v. Haar, 931 F.2d 1368, 1372 (10th Cir. 1991);
see also United States v. Wright, 131 F.3d 1111, 1112 (4th
Cir. 1997), cert. denied, 118 S. Ct. 2309 (1998); United
States v. Parker, 32 F.3d 395, 401 (8th Cir. 1994).
22.Although the caption to
McVeigh's argument states that the admission of guilt phase victim
testimony violated Rule 403 and "Rendered the Guilt Determination
Constitutionally Unreliable," the only constitutional argument raised
by McVeigh is that the Eighth Amendment requires a heightened standard
of review under Rule 403 for death penalty cases. On appeal, McVeigh
does not bring a Due Process challenge to the introduction of this
23.The objection was made in
the following manner:
THE COURT: Mr. Nigh [counsel for
McVeigh], did you have something before the jury returns?
MR. NIGH: I did, your Honor. I wanted
to interpose an objection to testimony in the nature of victim impact
evidence during the first stage. It's my understanding that two of the
witnesses coming up are also witnesses in the second stage; and rather
than interrupt during the examination, I wanted to impose -- or
interpose the objection now.
THE COURT: What are you characterizing
as victim impact? The type of testimony we've had from this witness
and also from Mr. Norfleet?
MR. NIGH: Yes, your honor. Some of the
previous witnesses, in terms of extensive conversations and things not
related to what the witness saw, heard, experienced during the
relevant time period.
THE COURT: Well, I haven't considered
that we've gone beyond the bounds of what the immediate effects were;
so as long as we're staying with the immediate effects and not the
long-range effects, I think it's permissible; and you can have a
continuing objection to it.
24.Before trial, McVeigh
offered to stipulate to the identity of all the persons killed in the
bombing, that all died as a result of the bombing, and that the eight
federal law enforcement officers who were the subject of the
individual murder counts in the indictment were killed while engaged
in the performance of their duties. Relying on Old Chief v. United
States, 117 S. Ct. 644 (1997), McVeigh filed a pretrial motion in
limine to compel acceptance of the proposed stipulation and to exclude
evidence offered by the government to prove the facts included in the
stipulation as overly prejudicial under Federal Rule of Evidence 403.
The district court denied McVeigh's motion.
McVeigh argues that his motion in
limine preserved a Rule 403 objection to the challenged testimony. We
disagree. "[F]act-bound determinations dependent upon the character of
the evidence introduced at trial" are inappropriate for final
disposition through motions in limine. Mejia-Alarcon, 995 F.2d
at 987. In addition, McVeigh's motion in limine only objected to
testimony identifying the victims and the cause of death the very
testimony McVeigh concedes on appeal was "appropriately admitted"
and did not seek to exclude other evidence under Rule 403.
25.At one point in his brief,
McVeigh complains that the government did not present this evidence in
a way to minimize its emotional impact. However, the government has no
obligation to minimize the emotional impact of testimony. Rule 403 is
designed to insure only that the prejudicial effects of emotional
testimony do not overwhelm the jury.
26.The district court ruled
that the deaths of individuals other than the law enforcement officers
that resulted from the explosion were not elements of the crime
charged for purposes of establishing criminal intent but rather served
as relevant conduct to enhance the penalty. However, the district
court made clear that proof of the deaths could be admitted to show
use of a weapon of mass destruction or substantial interference with
27.McVeigh also challenges
Espe's testimony regarding the recovery of some of the bodies two
weeks after the bombing, Matthew Cooper's testimony about removing the
body of Captain Guzman from the rubble, and Florence Rogers' testimony
concerning the recovery of bodies after the implosion of the remaining
structure, as long-term effect evidence. However because this evidence
deals with identifying deceased victims, we treat this testimony as
covered by our prior discussion regarding immediate impact evidence.
28.We again caution that we
accept the efficacy of McVeigh's continuing objection. McVeigh did not
object specifically to the testimony of the eight witnesses challenged
on appeal. Had McVeigh objected to this evidence, the district court
may well have been alerted to exclude portions of it. This illustrates
the danger of granting a continuing objection in an area as nebulous
29.The jury instructions
stated in relevant part:
Under your oath as jurors, you are not
to be swayed by sympathy. You are to be guided solely by the evidence
in this case; and the crucial, hard-core question that you must ask
yourselves as you sift through the evidence is has the government
proven the guilt of the defendant beyond a reasonable doubt. It is for
you alone to decide whether the government has proven that the
defendant is guilty of the crime charged based solely on the evidence
and subject to the law as I give it to you in these instructions. It
must be clear to you that once you let fear or prejudice or bias or
sympathy interfere with your thinking, there is a risk that you will
not arrive at a true and just verdict according to the law and the
evidence. If you have a reasonable doubt as to a defendant's guilt,
you should not hesitate for any reason to return a verdict of not
guilty; but on the other hand, if you should find that the Government
has met its burden of proving the defendant's guilt beyond a
reasonable doubt, you should not hesitate because of sympathy or any
other reason to return a verdict of guilty.
30.At one point in his brief,
McVeigh suggests that the sequence of the witnesses and the placement
of their testimony in the course of the trial was improper. There is
no legal basis for such an objection. The government can order the
appearance of its witnesses in any way it so chooses.
31. See our discussion above
under Issue E.
32.While making his
appellate argument the government's counsel stated, "[W]e would say
that there's no valid continuing objection to the guilt phase
testimony but there is one [pertaining to voir dire on the death issue].
Because it is a predominantly legal issue under Morgan, that is
a valid continuing objection and it brings in with it the general
issue, can we ask case specific questioning [that] if you found 168
people were intentionally murdered by this defendant, would you really
be open to mitigation."
33.We need only consider the
voir dire of the twelve jurors who decided McVeigh's case, because the
bias of unseated jurors is irrelevant to whether McVeigh had an
impartial jury. See Ross v. Oklahoma, 487 U.S. 81, 86
(1988) ("Any claim that the jury was not impartial . . . must focus .
. . on the jurors who ultimately sat.").
34. Juror 3 was asked:
[Defense]: What about do you remember
was the most touching to you that really got to you the most?
[Juror]: About the children.
. . .
[Defense]: Did you do you remember
thinking when you realized what had happened and especially about the
children do you remember having any thoughts about what ought to
happen to whoever did that?
[Prosecutor]: Your Honor, I'll object
Juror 5 was asked:
[Defense]: Based upon or let me put
it another way. As a result of the the scenes of destruction that
you have seen and the horrors that are associated with the bombing,
did you form any opinion about the punishment that should be imposed?
[Prosecutor]: Objections, your Honor.
We've been over this
[Court]: Yes. I've been sustaining that
We note that besides being
objectionable as beyond the scope of Morgan (as discussed in
the text), these questions are not compelled by Morgan because
they ask about a bias or prejudice prospective jurors may have felt at
the time of the bombing, not at the time of trial. Jurors who
previously were affected by publicity may be able to be impartial by
the time of trial.
35.Morgan held that
generic impartiality and follow-the-law questions were insufficient to
determine if a prospective juror was impartial as to the death penalty.
See Morgan, 504 U.S. at 734-36. However, the trial
court's colloquy in this case was much more detailed than the general
questions which Morgan held were insufficient. See
Tipton, 90 F.3d at 878-79. In any event, in terms of a pretrial
publicity inquiry, the trial courts have great discretion to decide in
what manner the subject should be covered. See Mu'Min,
500 U.S. at 427.
36.After the court announced
this ruling, the government challenged the foundation in McVeigh's
proffer for his allegation that Mahon and Strassmeier had made three
trips to Oklahoma City to "case" the Murrah Building. However, the
court made no comment or ruling on this aspect of the proffer.
37.The text of the catch-all
mitigating factor provides,
(a) Mitigating factors.
In determining whether a sentence of death is to be imposed on a
defendant, the finder of fact shall consider any mitigating factor,
including the following:
. . .
(8) Other factors.
Other factors in the defendant's background, record, or character or
any other circumstance of the offense that mitigate against imposition
of the death sentence.
18 U.S.C.A. § 3592(a).
38.The text of the "minor
participation" mitigating factor provides:
(3) Minor participation.
The defendant is punishable as a principal in the offense, which was
committed by another, but the defendant's participation was relatively
minor, regardless of whether the participation was so minor as to
constitute a defense to the charge.
18 U.S.C.A. § 3592(a)(3). McVeigh could
not meet the elements of this statutory mitigating factor because the
jury's verdict during the guilt phase precluded him from arguing that
the bombing was "committed by another."
39.The record includes one
bit of evidence from the government indicating that a phone card
attributed to McVeigh was used at a motel in Kingman, Arizona, to call
the spiritual leader of Elohim City, David Millar, in Muldrow,
Oklahoma. However, before the district court, McVeigh never argued
that this evidence connected him to Elohim City, and in fact, McVeigh
never even alluded to this evidence during the proffers of the Howe
40.As a result of our
conclusion that the Howe testimony was not relevant, we need not, and
do not, address either the district court's failure to make a record
of its apparent balancing of probativity versus prejudice under §
3593(c) or the substantive merit of that balancing. We note that the
Federal Death Penalty Act provides a different balancing standard for
weighing probativity and prejudice than does Federal Rule of Evidence
403. Compare 18 U.S.C.A. § 3593(c) with Fed. R. Evid.
403. In light of our decision on relevance, we decline to express any
opinion on the issue of whether the probativity/prejudice balancing of
§ 3593(c) comports with the holding in Eddings that the Eighth
Amendment requires the consideration of "any relevant
mitigating evidence." See Eddings, 455 U.S. at 114 (emphasis
41.Counsel for McVeigh did
request that the court reconsider its ruling on objective Waco
evidence in light of the government's cross-examination of Reavis,
which the court refused to do. However, asking the court to reconsider
its evidentiary ruling is not the same thing as objecting
contemporaneously to an opponent's questions. Because counsel for
McVeigh did not contemporaneously object to the government's cross-examination
of Dick Reavis, we review it for plain error. See United
States v. Nichols, 21 F.3d 1016, 1019 (10th Cir. 1994).
42.McVeigh does not argue
that the admission of the evidence violated any statutory or
evidentiary rules, nor does he contest the relevance of the disputed
43.McVeigh does not claim
that the admission of the challenged victim impact testimony violated
the limitations in Booth left untouched by Payne.
44.The objection was made in
the following manner:
[Defense]: I know how difficult this is,
but I must object. I thought that the testimony in the second stage
was to be the impact of the empty chair. Instead, what we are spending
our time on, 80 percent of it, is how these people found out their
loved one died. And while I think that might be admissible, perhapsbut
that's all it's becoming; and it is taking these most dramatic
incidents, and that's the testimony. One or two, I could understand;
but we're now into the teens on this list and it is coming in. And I
think that we're exceeding the court's instructions. There has to be
some balance and proportionality to this for the sentencing stage to
keep the jurors' minds open until they've heard everything, and all I
ask is some restraint and some balance.
. . .
[Prosecution]: We can restrict their [future
witnesses] testimony from this point forward to traditional impact, if
the Court wants.
The Court: Yes. I thinkthesethis
testimony about last kisses on the lips, and so forth, is excessive.
. . .
[Defense]: The other place that I'm at,
your Honor, is I can't expect the Court to be co-counsel to Mr.
McVeigh and impose objections. And yet if I object, it seems to me
I hurt my client more; but if I don't, I'm waiving valid points. But I
don't know what a continual objection is under these circumstances;
and I'll just do as my conscience dictates, I guess.
The Court: Well, I'm not going to
expect you to object in front of the jury. You have a continuing
objection to the testimony that you say goes beyond the impact
on the lives of the witnesses. That's your
[Defense]: Yes. That's the basis of
The Court: And I think that we do have
to exercise more discipline. As I say, particularlyI think that it's
legitimate as to how they found out about thetheir loved ones. That's
part of the impact.
The Court: But I can'tI can't accept
more of thisas this last witness about the little child and hugging
and kissing and so forth. I don't think that's part of it.
45.McVeigh also made a
motion in limine to exclude the victim impact testimony. However,
because the determination of the admissibility in terms of both
relevance and prejudice of each successive victim impact witness
depended on the context of the specific testimony during the penalty
phase, we do not believe the motion in limine preserved for appellate
review an objection to the specific testimony of any single witness.
See our discussion of United States v. Mejia-Alarcon, 995 F.2d
982, 986-88 (10th Cir. 1993), under Issue E.
46.Even if we found error,
it would not rise to the level of plain error given the lack of clear
guidance on the appropriate limits of victim impact testimony under
Payne that existed at the time of the trial.
47.For example, the district
court prohibited the introduction of wedding photographs and home
48.In fact, McVeigh states
that he does not fault the standard for reviewing testimony under
Payne set forth by the district court. In addition, McVeigh did
not object at the pre-trial hearing to any of the proffered victim
impact testimony. Although he expressed opposition to the testimony of
two of the rescue workers, he did not even lodge a formal objection to
that evidence, ending the discussion on the subject by stating, "We'll
try to work that out."
49.The district court's
admonitions were stricter than those we have found to be required by
Payne. Thus, even though some of the emotional accounts of
learning about the fate of a loved one might have violated the
district court's standard, the admission of that limited amount of
testimony did not run afoul of Payne.
50.The district court
instructed the jury in relevant part:
Your role in this process is to be the
conscience of the community in making a moral judgment about
the worth of a specific life balanced against the societal
value of what the government contends to be or is the deserved
punishment for these particular crimes. Your decision must be a
reasoned one free from the influence of passion, prejudice or any
other arbitrary factor.