IN THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF COLORADO
 Criminal Action No. 96-CR-68
 UNITED STATES OF AMERICA,
     Plaintiff,
 vs.
 TIMOTHY JAMES McVEIGH,
     Defendant.
 ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
                      REPORTER'S TRANSCRIPT
                 (Trial to Jury - Volume 122)
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         Proceedings before the HONORABLE RICHARD P. MATSCH,
Judge, United States District Court for the District of
Colorado, commencing at 1:41 p.m., on the 29th day of May,
1997, in Courtroom C-204, United States Courthouse, Denver,
Colorado.







 Proceeding Recorded by Mechanical Stenography, Transcription
  Produced via Computer by Paul Zuckerman, 1929 Stout Street,
    P.O. Box 3563, Denver, Colorado, 80294, (303) 629-9285
                          APPEARANCES
         PATRICK M. RYAN, United States Attorney for the
Western District of Oklahoma, 210 West Park Avenue, Suite 400,
Oklahoma City, Oklahoma, 73102, appearing for the plaintiff.
         JOSEPH H. HARTZLER, SEAN CONNELLY, LARRY A. MACKEY,
BETH WILKINSON, SCOTT MENDELOFF, JAMIE ORENSTEIN, AITAN
GOELMAN, and VICKI BEHENNA, Special Attorneys to the U.S.
Attorney General, 1961 Stout Street, Suite 1200, Denver,
Colorado, 80294, appearing for the plaintiff.
         STEPHEN JONES, ROBERT NIGH, JR., ROBERT WYATT, MICHAEL
ROBERTS, RICHARD BURR, AMBER McLAUGHLIN, and ROBERT WARREN,
Attorneys at Law, Jones, Wyatt & Roberts, 999 18th Street,
Suite 2460, Denver, Colorado, 80202; JERALYN MERRITT, 303 East
17th Avenue, Suite 400, Denver, Colorado, 80203; MANDY WELCH,
Attorney at Law, 412 Main, Suite 1150, Houston, Texas, 77002;
CHERYL A. RAMSEY, Attorney at Law, Szlichta and Ramsey, 8 Main
Place, Post Office Box 1206, Stillwater, Oklahoma, 74076, and
CHRISTOPHER L. TRITICO, Attorney at Law, Essmyer, Tritico &
Clary, 4300 Scotland, Houston, Texas, 77007, appearing for
Defendant McVeigh.
                         *  *  *  *  *
                          PROCEEDINGS
    (Reconvened at 1:41 p.m.)
         THE COURT:  Be seated, please.
         Are we ready for our jury?
         MR. HARTZLER:  We are.
         MR. JONES:  Yes, your Honor.
         THE COURT:  All right.
    (Jury in at 1:42 p.m.)
         THE COURT:  Members of the jury, we'll hear from
counsel for the defense.
         Mr. Jones.
                       CLOSING ARGUMENT
         MR. JONES:  May it please the Court --
         THE COURT:  Mr. Jones.
         MR. JONES:  -- Mr. McVeigh, my colleagues on the
defense side, Mr. Hartzler, Mr. Mackey, and Mr. Ryan, ladies
and gentlemen of the jury, over 75 years ago, the great and
famous British barrister, Sir Edward Marshall Hall was
privileged to have a biography written of him by a man by the
name of Edmond Marjoribanks; and in the second paragraph of the
first chapter, Mr. Marjoribanks wrote:  Now it is difficult for
any man whose life, liberty, and reputation rests upon the
decision of 12 strangers, chosen from among the population
according to the instructions of the court and the evidence to
decide his fate; hence has arisen the honorable profession of
the advocate whose responsibility is narrower than a statesman
but broader than a physician's.
         Our duty as Mr. McVeigh's advocate in this case is to
present to you, the jury, all that he might say on his behalf
and all of the evidence that he could marshal to meet the
challenge of the indictment and the evidence that is brought
against him by the Government of the United States.  It has
been a single privilege, an honor, to be defense counsel in
this case.  And to those who are responsible for my being here
and my colleagues, we are deeply appreciative because we
recognize that not only is this a very unusual professional and
personal challenge, but it is in reality a moment in history of
our country.
         In trying to decide how I might present to you in the
most effective way possible within the rules permitted to me as
a member of the bar and an officer of the court, I tried to
think of a theme that I could express to you that I could share
with you my view of what has happened here in the last month.
And as so often for someone such as myself, I found it in a
book.  40 years ago this very month, there was a major literary
event in this country.  James Gould Cozzens' great novel, By 
Love Possessed, was published.  And for people of my generation
and my mother and father's generation, and I'm sure some but
not all of you, that novel remains with us today, though its
author has long since been forgotten.  The book was an
instantaneous best seller.  It stayed at the top of the New 
York Times best seller list for over a year.  It was a Reader's 
Digest condensed book.  It won for the author not only the
Howell prize but a cover story on Time magazine.  And
eventually as you might expect, it was made into a movie and
then translated into some 14 or 15 languages throughout the
world.
         The theme of the book was simply this:  That at the
seat of human judgment, there are always two elements of the
conflict.  On the one hand is emotion and, on the other hand,
logic and the facts.  That was the central theme of a novel,
and its popularity was because that is the central theme of
conflict in our life in the decisions that we are called upon
to make.
         And that novel foreshadowed, however, many years later
what came to be the criminal justice system in this country.
For in the same month the book was written, a major trial
occurred.  Some of you of my generation will remember it.  A
famous Hollywood actress's boyfriend was killed by her
daughter.  And in that case, emotion ruled the day.  There
wasn't any question that she was responsible for her mother's
lover's death.  But there was the excuse defense, the
emotionalism.  And over the next 20, 30, and 40 years, it
reached such absurd lengths that a former police officer and a
member of the San Francisco city commission received a reduced
sentence and judgment by claiming that when he killed the mayor
of San Francisco and another city commissioner, he had eaten
Twinkies; and so the whole criminal justice system, which so
many of you, as so many of us in the bar, have criticized,
became not a trial in the classical sense, but kind of a
continuation of a popular daytime television program, the Oprah
Winfrey program.  And it finally reached the point that it
wasn't what the evidence was; it was how people felt, what
their previous injustices were, how they viewed the police or
their neighbor or their former husband or wife.
         Now in this case, we have arrested that trend, I
believe.  But as the Government said in its opening, there is
still work to be done.  This case has probably been tried so
differently than what you might have apprehended it would be
like that it has reversed the trend at least up to this point
and made the criminal justice system what it is supposed to be.
         But whether we succeed in that goal in the final
analysis does not depend upon his Honor or me or Mr. Mackey or
Mr. Hartzler.  It ultimately depends on what you do.
         Now, during the last four weeks, everyone connected
with this case; that is, the Court, counsel, the witnesses,
have spoken, and you have remained silent.  Now in a few hours,
we will cease speaking, you will retire to the jury
deliberation room, and you will come back and speak to us and
we will be silent; and so our roles will become exactly
reversed and it will be our duty to listen to you.
         The reason that I started with the conflict of By Love 
Possessed and the conflict between emotion and the facts is
because I respectfully submit that the prosecution in this case
has based a substantial portion of its presentation, not so
much this morning, although there was an element of that, but
much through the trial on emotion.  And the emotion is a twin
emotion.  On the one hand, what has been invoked has been
sympathy for the victims and, on the other hand, repugnance for
the political beliefs, at least as described by the
prosecution, of Mr. McVeigh and where they allegedly led him.
         But justice is blind.  Justice does not wear a
mourning armband.  Justice does not show a tear on her face.  A
criminal trial is not a therapeutic counseling session.  It
isn't a closure.  It isn't an inquest into history.  It isn't
the raw material of a book.  Its function is very specific and
very narrow:  Has the Government presented enough evidence to
convince 12 people beyond a reasonable doubt that the accused
is guilty.  That is our only function here today.
         I submit, and I'm going -- I don't have enough time,
and I would not impose on your time to answer every argument
Mr. Maxy made, because I don't think I need to -- or
Mr. Mackey.  But I'm certainly going to answer what I consider
to be the most compelling ones that he may have made.  But in
order to do that, we must remember that each of you before you
were selected for this jury -- and remember that it was a
three-part process -- actually a four-part process, because it
involved your agreement to serve.  The Court, the Government,
and myself with Mr. McVeigh -- and the defense made the
decision who would sit on this jury.  And that decision was
influenced by the answers that you gave under oath, the answers
to the Court and to us in voir dire.
         Now, let us not be mistaken.  Tim McVeigh was
convicted in the court of public opinion not only before the
first witness had testified, before the first piece of evidence
had been introduced, even before his lawyer was appointed or
his preliminary hearing or his indictment.  He was convicted
because the nature of the crime, as severe as it was and the
attention focused on it followed by the dramatic arrest and
walkout in Noble County Courthouse, convinced people that the
right man had been arrested.  But it was not permitted to rest
there.  For weeks and months and now years later, it continues
to be recycled.
         I told you in the opening that this evidence in many
respects would not be what you expected; things that you might
have thought would be presented would not; and there would be
things presented that you had never heard of.  And I think I
was right in that assessment.  You may also recall that during
the voir dire, Mr. Ryan and Ms. Wilkinson and Mr. Mackey asked
you from time to time would you have the fortitude, the
courage, the strength to sign a death penalty warrant -- or
verdict, rather, if it became appropriate and necessary; and
each of you said you could and would.
         But the question is, now that the evidence is in and
knowing what the court of public opinion is, can you vote a
verdict of not guilty if, after hearing all the evidence and
the argument and the instructions, that is your opinion?  If
you believe collectively or individually that Mr. McVeigh is
not guilty, can you say that?  Because if you cannot, then the
justice system as we know it in this country has been corrupted
far more than any trial that happened in Los Angeles,
California.
         If we let sympathy overcome reason, then sympathy
becomes to this case what race was to another case.  When we
had the opening statements, I took six minutes and read to you
the names of all of the victims who were the subject of this
indictment.  I did that because all of us understand the
victims' plight.  They are not the property of any side to this
lawsuit.  Their collective loss belongs to the country as well
as to themselves.  There is nothing inconsistent with being Tim
McVeigh's counsel and arguing and advocating his position and
not having personally and privately and emotionally sympathy
and understanding for these individuals.  And they are not
litigants or parties to this case.  Their interest is served by
knowing that there is a fair trial so that they have confidence
in the verdict.  But that requires zealous advocacy, a testing
of the evidence, cross-examination, and fierce and sometimes
heated argument and discussion about what these facts mean.
Because heat generates light, and it is with the light that we
will know what the verdict should be.
         Oklahoma is a small state.  It has been said -- and
just to show you how small it is, we didn't come into the union
till two generations after Colorado did.  We're the third
youngest state in the United States, and Oklahoma City has been
described as the largest small town in America.  And it's true.
         There is no family in Oklahoma that does not know or
know of a victim.  So when I speak today, I mean no disrespect
to them, but I say this:  The testimony that the Government
produced was 137 witnesses, I believe.  But truly, the
substantive testimony insofar as relates to Mr. McVeigh was
approximately the same number of witnesses we presented:  25 to
30.  Because there is no dispute that the Murrah Building blew
up, there is no dispute it was in Oklahoma City, there is no
dispute that the Ryder truck here carried the bomb, and there
certainly is no dispute that these victims died as a result of
this explosion.
         All of that is not in dispute.  And testimony to
establish that point only establishes the commission of a
crime, which we have never challenged.  It does not establish
who committed the crime.
         The Government called a large number of witnesses, as
is necessary, for chain of custody and laying foundations, and
that's appropriate.  But when we come down to what we are
really talking about, the witnesses that the Government relies
upon with respect to this defendant, there are no more than 20
or 30.  And a number of those witnesses are in reality our
strongest witnesses because the defense case isn't 25 or 27
witnesses any more than the Government's case is 130.  The
trial is a whole cloth.  Each witness is subject to direct
examination and cross-examination, redirect, and recross.  I
can argue what an exhibit means, Mr. Mackey can argue what it
means, and you decide what it means.
         So in reality, there is a blending of the
prosecution's case.  They may make a point with a witness that
I have put on the stand, and I may make a point, or at least
attempt to make one, with one that they called.  And in this
respect, it may be said that the four strongest witnesses to
establish that Mr. McVeigh is not guilty are FBI agents, and
they are Mr. Hupp, Mr. Burmeister, Dr. Whitehurst, and the
artist, Mr. Rozycki.  They are at the foundation of the defense
of this case.
         So when we talk about it in those terms, the
Government's case more likely was closer to the length of ours,
three and a half days and about five and a half days for them.
The rest was essentially matters that were not in controversy.
         When I began the opening, I think that I talked to you
in terms of the Government's case as a table and there were so
many legs supporting the table, or categories, if you want to
use that expression.  Those eight legs or categories are what I
want to talk with you about today.  And so that you will
understand how we are proceeding, I am going to address first
the question of Michael and Lori Fortier, because that clearly
is one of the eight legs.  Mr. Nigh will discuss with you the
motive, The Turner Diaries, Armed and Dangerous, and so forth.
And Mr. Tritico will address all of the forensic evidence, and
then I will come back in a condensed form and discuss briefly
the other five legs.  That is the way that we intend to
proceed.
         So let me begin with a discussion of Mr. and
Mrs. Fortier.  You will recall that when Mr. Hartzler spoke to
you and made his opening statement, he told you that our
evidence is not dependent upon any one witness; it is certainly
not dependent on Michael Fortier.  Well, although he didn't
specifically include Lori Fortier in that, I think he would
concede he meant the same thing.  So let's examine first the
importance or lack thereof of Michael and Lori Fortier and what
their case means with respect to Mr. McVeigh.
         And I must begin with an apology.  Yesterday it was
necessary, in my judgment, to play for you, briefly, four or
five tapes of conversations either on the telephone or in
Mr. and Mrs. Fortier's house.  Those conversations were
appalling in their vulgarity and insensitivity.  And for that,
I apologize.  But it was necessary for me to do so because what
we basically have here with the Fortiers is the prosecutorial
equivalent of Eliza Doolittle being made over into the Henry
Higgins of the FBI and "My Fair Lady" has become "My Fair
Witness."
         If Mr. and Mrs. Fortier are not so important to the
Government's case, then one must ask one's self, why did it
take 200 hours or thereabouts to prepare them, why the
countless and endless meetings, why the complete transformation
of their personality, and most importantly, why make the deal
made with them if they aren't important?  I mean if they're not
important, why do any of this?  Certainly why let Lori Fortier
walk away with nothing and Michael make the deal that he did?
         The answer is there.  To ask the question is to answer
it.  They needed them.  Because without them, then what we have
is a series of isolated incidents.  Michael and Lori Fortier
served the function of Tarzan and Jane in the old Tarzan
movies, where you've got a clump of trees here and a clump of
trees there and a clump of trees over there, and Tarzan and
Jane swing from one tree to the next, and it's only by their
swinging and maneuvering that the trees are connected.
         This is their significance.
         So in reality, how honest is it to say they're not
important to our case?  Of course they're important to the
case.  They are critical to it.  Now, the Government's position
is that much of what Michael and Lori Fortier says is
corroborated.  Well, I suppose in a kind of a backhanded sense,
that's true.  But let's examine carefully here the story that
they first told and then why they changed and then the story
that they later told.
         Now, this morning Mr. Mackey told you, Well, we don't
choose our witnesses.  Well, of course they choose their
witnesses.  How many thousands of people did they interview in
this case?  They chose who to put on the stand.  Of course they
chose them.  They chose this person over that person.  So to
say, Well, they're Tim McVeigh's friends and we didn't choose
them, is to beg the point.
         Well, there isn't any evidence that Tim McVeigh knew
the Fortiers used drugs, much less sold them.  There isn't any
evidence that Tim McVeigh knew about the way in which they
conducted their affairs; and as Mr. Hartzler pointed out
yesterday, certainly Mr. Fortier on special occasions was
capable of cleaning himself up.  And clearly testifying in a
case where his sentence depends upon it in part is a special
occasion for this gentleman.
         The question, though, is a little more complicated
than that.  Because you see, we don't have the usual friend of
the defendant who's turned and is now testifying against him.
I agree that that's not unusual.  Cases are made like that
every day in the country with the appropriate risks that are
associated with them, which the Court will instruct you.  This
is a different circumstance, though.  This is a case of an
individual who didn't just insist that he didn't know anything
about it; he went public that his friend was not guilty.  How
many other times in all of the reading and newspapers that you
follow and television programs can you even think of another
case where the friend of a defendant calls a press conference
and announces publicly that he's not the face of terror, that

he's my friend and hang tough?  This is not a man that was
cowed.  This was a man that was determined to go out and defend
Tim McVeigh.  Now he says, of course, he lied.  Well, it is
certainly easier to lie to strangers, such as a jury in this
case, than it is to lie to one's mother, father, one's brother
or sisters or lifelong friends and associates, to say nothing
of the FBI.
         But within the context of those tape recordings which
he says he knew was there -- and probably in one sense he
did -- but if he was lying, he was reckless to the utmost
degree.  So if we look at the totality of what he says -- and
let's just leave aside for a moment the issue of corroboration.
Let's examine what he did.  First we know -- Mrs. Fortier --
that early on while they were there in their house -- and this
has been introduced into evidence, and you saw it --
Mrs. Fortier prepares a press statement, actually two of them,
and she does the first one and then revises it.  And this is
the second one, as I recall:  "Judge not for yee" (sic) "shall
be judged."
         Now, the Fortiers are not just defending the criminal
justice system and saying, Well, just give Mr. McVeigh the
benefit of the doubt, we'll find out in court whether he did
anything wrong.  They're going far beyond that and telling you
that they don't recall anything.  Yes, I tried to look back --
or words to that effect -- and I can't say to myself that
there's anything that told me yes, he might do this.
         And then this is followed -- the next one -- and a
typewritten version is prepared.  And this is in evidence, and
I'm not going to take your time now to read it to you.  You can
see it yourself; but first it goes through several drafts, and
then they write a two-page version and then call a press
conference.  This is unprecedented behavior by someone that is
claiming that during all of this period of time, they were
lying.
         Now, the argument may be made, well, of course they
had to do this because, you see, if Tim McVeigh was thought to
be guilty, then it would incriminate us.  Well, which is it?
They either were involved in the bombing or they weren't.  You
mean to tell me that in order to hide the crime of possession
of stolen property -- which incidentally, they left in their
house -- they went out and went to these lengths to call
attention to themselves, knowing that at any moment there could
be a search warrant obtained against their house and this
so-called stolen property would be found?
         The guns weren't stolen, they didn't believe they were
stolen.  That's why they kept them there.  When they thought
there was going to be a search, what did they get rid of over
the back fence, videotapes?  Perhaps a marijuana pipe, we
argued, but they denied it.  And then they took down to their
brother's house some explosives and instruments to make a pipe
bomb.  And I suppose there's a violation of the federal tax
laws, making an explosive device without paying a tax on it.
         But what did they leave?  They leave these guns.  So
they went to this length to avoid a tax prosecution?  To avoid
having "Waco Day 51" tape in their apartment?  Of course not.
They went to this length because they, both of them, shared the
same political beliefs of Tim McVeigh, a suspicion, dislike,
perhaps if you want to say hatred, of certain branches of
federal government for certain events that had occurred.  We're
not here today to judge the appropriateness of that belief.
         But isn't it clear that they shared the same or nearly
the same -- Miss Fortier's favorite word was "somewhat."  But
somewhat they shared the belief of Tim McVeigh.  And so like
any member of a minority group of political viewpoint, when the
group or a member is threatened, the others come to its aid.
You have seen that in all the fringe groups, and that's what
they did.  Their friend was in trouble, they perceived that he
had been arrested for the political beliefs, and so they came
to his defense.
         Now, perhaps I might show more self-restraint, you
might show more self-restraint; but in their community and with
the beliefs that they had, Tim McVeigh was being persecuted by
the FBI just like they were being persecuted.  His life was
being disrupted and so was Terry's and so was theirs.  And so
they went out and did what they had done before:  They defended
themselves, and that's what they were doing.  And they did not
for two or three days, as they told Judge Russell.  They did it
for over a month.
         And then something happened.  Now, what happened was
Terry Nichols was arrested on May the 10th.  But in the
meantime, something else had happened.  Mrs. Fortier, despite
the fact they're writing press releases and rewriting them and
holding press conference, she just wasn't interested in what
appeared in the press, just totally oblivious to it except in
one or two instances.
         Now, use your common sense.  There's nothing in these
instructions the Judge is going to give you that says you can't
use your common sense.  Your logic tells you that they were
reading that newspaper every day they could get their hands on
it, and they were watching television and hearing from their
friends and listening to the radio because this was the number
one story in the world on April the 19th, down through May of
1995; and as Mr. Fortier acknowledged, he was the key man.
         But the reason that Mrs. Fortier had to say, No, I
didn't really read them that much, and finally Mr. Fortier came
around and said, particularly when it's on the tapes, that he
knows about Time magazine, knows about The Arizona Republic, he
knows about CNN and he's got his friends, Lonnie and Glenn and
his brother John calling him and telling him that they've seen
him.  And you can hear the excitement in their voice.  They
know a celebrity.
         But the reason they didn't want to admit reading it is
because then, if I said, Well, did you read the story about how
the FBI thought it was carried in a Ryder truck; and then,
Well, did you read the story the next day about they thought
this Ryder truck was rented in Michigan; and then, Did you read
the story that there was a false driver's license that might
have been used; and then, Did you read the story there was
ammonium nitrate, they could say, no, I didn't read it.  Of
course they read it.
         And when it dawned on them like the great French play,
"No Exit," that there was no exit for them, they had to come up
with a plan.
         Now, these are not foolish people.  They're very smart
people.  And this was the plan:  Again, use your common sense.
Everything about Terry Nichols applies at least to Michael if
not Lori.  Both of them knew Tim McVeigh, both of them served
in the military with him at the same time, both of them shared
the same political beliefs, both of them had similar type
devices and stuff in their house, both of them had the same
kind of books, and they were all linked together with Tim
McVeigh.  So first Terry Nichols is held as a material witness,
and then on May the 10th, he's arrested and charged as an aider
and abettor in the case.
         Now, they knew by then -- because they told you, they
had seen the Attorney General and the president of the United
States, and they knew that a death penalty was going to be
sought in this case.  So here they are, broke, unemployed, no
money in the bank, no prospects, not even the money to hire a
lawyer; and they know that the vice is closing in on them.
They think their phones are bugged.  You can hear their
desperation about the media, and they got to find a way out.
And this between the time, as you can clearly tell from the
tapes, Michael is, at least some of the time, in some kind of
drug stupor, if not something else.
         Now, you have read the paper, and you followed it on
television and you were far less involved in the case than the
two of them were.  And then the media begins to talk to them
about, well, appearing on this program or buying the
photographs; and you remember what Mr. Fortier said:  "I can
tell a fable"; "I have found my career"; "a cool million"; "I'm
going to keep quiet till this is over with and tell my story";
"There will be book and movie rights"; and, "Let's sell the
photograph, Mother, for $50,000, we'll split it."
         Now, those are not casual conversations.  This is
coming from a man and a woman who, as you heard from Debbie
Brown, just a few months before wanted to buy her tanning salon
but couldn't raise $35,000 on their own for a down payment and
weren't willing to put up her parents' house for the loan.  So
to say that money wasn't important to them, when they were
unemployed, the world at their door, no visible means of
support, and they were talking about money, is to ask us to
believe that what they said was not what they intended.
         Now, in the early conversations -- and certainly we
can't play all of them -- but in the early conversations,
there's kind of a jocular reference to this.  You know, almost
too good to be true, and then Michael's voice takes on that
hard edge.  And he has that conversation with Lonnie, I believe
it is, and they're talking about, "Well, you're the key man."
And I says, "I'm the key man."  Almost like Saul on the road to
Damascus, the light is on:  I'm the key man.  There is money to
be made in this.
         But of course there's a problem.  And the problem is
he can't talk to the media, other than just the little bit
about CNN.  And you notice how many times there there were
things he didn't want to talk about, because he knows there's
an ongoing investigation, he knows Terry is being held as a
material witness.  And then just two days later Terry is
arrested.  So he has to find a way out.
         So he leaves a message with the FBI one early morning
that he's interested in talking to them about a proffer.  Now,
he hasn't said anything that implicates himself or Tim McVeigh,
he's just kind of out scouting as to what he can do.  This is a
man that still thinks he can have it his way.  So they get
subpoenaed to come to Oklahoma City, and they meet in a motel
and they call some FBI agents.  Mr. Zimms and another gentleman
come out to see them.
         And Mr. Fortier excuses himself from Mrs. Fortier.
Now, that's kind of an interesting development, isn't it,
because remember, I trust Lori, I tell Lori everything.  Tim
McVeigh wrote me, according Mr. Fortier, and said, Don't tell
your wife; but I tell my wife everything.  But, boy, the door
closes behind him on this one.  And Lori stays in the hotel
room while Michael goes out, and what does he say?  He doesn't
say, We can give you Tim McVeigh; he says, I can give you Tim
McVeigh.  But I want immunity from prosecution.  Now, even if
he intended it to apply to both of them, what he wanted was
I'll give you Tim McVeigh, but I don't want to be prosecuted.
For nothing.  Period.  Nothing.
         Well, the agents told him, Well, we don't have any
authority to make that kind of promise or commitment.  Would
you like to correct your statements?  I mean after all, that's
why you called us out here, Michael.  Would you like to correct
your statements?
         And then -- now they're back inside.  Mr. Fortier
turns to Mrs. Fortier and says:  You correct yours first.
Greater love hath no man than he lay down his wife for his
life.  That is precisely what he was willing to do.  But
Lori -- remember, these are not stupid people -- says, No, you
correct yours first.
         And so he begins, quote, to correct his.  But
according to him, he is still lying.  So he feels his way as he
is engaged in this maneuver, and his wife has the good sense to
keep her mouth shut.  Chivalry died that afternoon in the
Fortier home.  That's for sure.  Their lawyer, or at least her
lawyer, shows up and tells her not to talk anymore, which is
certainly appropriate advice in the circumstances; but she
already knew that.  And then supposedly because he has this
great feeling for the people of Oklahoma, he starts
cooperating.
         Well, if you take all of these things that he said,
99 percent of them were already known to the FBI; or if they
weren't known to the FBI, they were certainly known to the
press, because they were in the public domain.  But
nevertheless, he did serve a function of tying them up.  But
those things that he says that aren't in the public press, such
as, Well, now, you know Tim McVeigh wrote me a letter, said he
wanted to take direct action.  Well, do you have the letter?
Well, no, I don't have the letter.  And I wrote him back.
Well, did you make a copy of that?  And I agree it's not likely
somebody would make a copy of a letter, but some people do.
No, I don't have that.
         Well, my name's Lori Fortier and I made a driver's
license for him.  I typed it on this typewriter, but I threw
away the ribbon.  And Michael says, Well, I ordered an ID kit,
'course I ordered it in the name of Tim Tuttle because Tim
wanted it, when what the evidence really suggests is that he
was getting it for himself.  Well, where's the rest of the ID
kit?  Well, I don't have that.  All we've got is the order form
that went in.  So who knows what Michael did with it.
         But my point is simply this:  If you say that George
Washington sat in that chair and there's the chair, it doesn't
prove that George Washington sat in it at all.  For any of this
to have any believability, you have to first believe Michael
and Lori Fortier.
         Now, according to them, their parents believed them,
their friends believed them; didn't have any trouble lying to
them.  Or were they telling the truth now (sic) and lying now?
         Where did they get the benefit?  In my neighborhood,
as Mr. Mackey would say, you ask who benefits.  Well, who
benefited?  Well, Michael has his tail in a crack, as we used
to say in Oklahoma, but at the time that wasn't what he was
aiming for.  What he was aiming for was a complete walk-away,
so that he didn't have to worry about it, he didn't have to
worry about Tim McVeigh, and he could go out and hit the

talk-show circuit, make that cool mill and tell that story.
And remember, if they didn't treat him the right way, he'd just
get up and walk off the set.
         So unlike the usual friend of a defendant that's kind
of scared and cowed, Michael wasn't so much scared as he was
just simply trying to make the best deal that he could.  And
there is a dramatic difference between the two.

         This is a man who according to him doesn't mind
dealing in stolen guns but won't drive into the desert; a man
who's perfectly willing to trade somebody else's property but
yet says that he didn't do the things attributed to him.
         But he slipped up.  You know, like the drunk driver
who says, Honest, Officer, I just had two beers, Michael just
uses methamphetamines once a week, just kind of occasional
recreation, maybe sometimes just once a month.  Well, now, that
clearly is a lie.  You heard the testimony of Debbie Brown, and
you know from your own life experiences and what you know as
adult men and women, that no drunk just had two beers and
nobody using speed or marijuana in their years as long as they
have just uses it once a month.
         So although he claims he stopped lying two years ago,
he was lying in this courtroom.  And even when Mr. Hartzler
asked him, Now, what are your offenses, what have you done
wrong, Michael?  Well, I used drugs, I possessed them and I
sold some and I had these guns and I broke into this National
Guard armory, and all this kind of petty stuff.  But he had
forgotten that long before this, he was committing ATF
offenses, he was going down and buying guns and signing his
name repeatedly to statements that he said he understood that
said I've never used drugs before.
         Now, when you add up all of Michael Fortier and Lori
Fortier -- not small number, but principally Michael's criminal
offenses, to plead guilty to no more than 23 years was
Christmas in August.  But he's not even facing the 23 years,
because under the terms of his agreement, it can be reduced, or
at least the Government can move for a reduction.  And so what
we have here --
         I don't need this one.
         MR. TRITICO:  Yeah.
         MR. JONES:  Let's get the one behind it.  Yeah.
         This was introduced into evidence.  And I've just
highlighted certain portions here.  This was the plea agreement
which Mr. Mackey told you -- and I appreciate his professional
candor -- this was a contract, this was a deal.  And like any
deal, it was bargained for and there was some consideration.
And so what's the consideration?
         Well, Mr. Fortier understands that he could be
sentenced to a total of 23 years in prison.  Well, if I were
facing all the offenses that he was facing, I would think that
was a pretty good deal.
         The parties agree to seek a continuance of
Mr. Fortier's sentencing until he has completed his cooperation
and rendered his testimony.  What that simply means is we got
him.  He has to deliver for us before we deliver for him.
         Wouldn't it have been better if he had already been
sentenced?  Then you would have a position to know that he had
no motive to lie; he had already been sentenced, so what he
said wouldn't affect his sentence.  But it's just the opposite.
         The Government in this remarkable candor clearly says,
We're not going to deliver till you deliver.  Well -- you might
say, Well, that seems only fair and natural, they don't want to
buy, as we used to say, a pig in a poke.  Well, he's already
delivered:  He testified in front of the grand jury, he wrote
these statements, he took them all these places, he took them
up to Kansas and Oklahoma City and Arizona and explained all
this and spent dozens of hours with the FBI, so he has

delivered.
         So why are they still holding the Sword of Damocles
over his head?  Maybe because they don't trust him; and maybe
you shouldn't trust him, either.  Because they want to be sure
he delivers.  See, they're not willing to believe him until
after he has completed his testimony.  So why should you
believe him?  If they don't want to give him the benefit of the
bargain yet, why should you?
         If the Government determines in its sole discretion --
not the Court, not the court down in Oklahoma City, not Stephen
Jones, but these ladies and gentlemen over here at this table
and their superiors, presumably -- that Mr. Fortier has
rendered substantial assistance in the investigation and
prosecution -- that's lawyers' fancy words for testifying --
involved in criminal activities, then it will file a motion
which will so advise the judge -- and they can ask for a
reduction of his sentencing guidelines.  He has to completely
fulfill all of his obligations, and the United States agrees,
except as provided below, to bring no additional criminal
charges against him.
         It would be difficult to imagine a more extravagant
plea bargain.  I've been practicing law for 30 years; I'd love
to get a deal like that for some client of mine sometime.  This
is surely one of the most extravagant agreements ever made.
         Mr. Fortier fully complies with this agreement and
fully cooperates, then not even the State of Oklahoma will
prosecute him.
         Now, the question is, of course, did he live up to it.
And the answer is no.  He lied in front of Judge Russell.
         He wrote out factual statement -- factual statement;
not my memory, but factual -- in support of plea petition.
         "When the FBI agents questioned me later about two
days after the bombing, and during the next three days, I lied
about my knowledge and concealed information."
         Well, if he's telling the truth about what he knew, he
didn't lie during the next three days, he lied for an
additional 27 days that we know about, and maybe beyond that.
Because when he started talking to the prosecutors, they
weren't writing up 302's then.
         So the question to ask yourself is, Well, after he
lied to Judge Russell, was the agreement declared null and
void?  Of course it wasn't declared null and void.  The
Government knew that that wasn't a full and complete and candid
declaration of what he had done.  They knew that then.  They
knew that when they put him on the stand, and they know it now.
         But you see, it's somehow or the other sounds better
if you say, Well, they came out to see me right after the
explosion and, honest to goodness, I just lied to them for two
or three days and I didn't mean to.
         It's a little harder to get a jury to accept that you
lied for 30 days.  But if he's telling the truth, in whole or
part, about what he knew, then clearly he was lying more than
three days.  So the agreement wasn't revoked.  So in addition
to that, he has an even double incentive to cooperate with them
because he's already misrepresented it to Judge Russell.  And
one of these days, there will be an accounting in front of
Judge Russell.  But of course you'll be back home, the case
will be over with, and you can't come back in and say, Well,
gosh, I didn't know Judge Russell was going to do this or that.
You have to make your mind up based upon what you know today.
         But there is a chronology . . . and all of this was
testified to, and a lot of it's exhibits introduced, in which
we just take Michael Fortier's testimony over a two- or
three-year period; and way back long before Oklahoma City, in
July of 1993, he begins to make false statements on his form
for firearm transaction records.  Not once, but several times.
         Again on April the 18th.
         And then on April the 21st, according to him, he told
the FBI that he didn't know anything that would indicate
Mr. McVeigh was guilty.
         He goes on down the, 22d, the 23d, the 24th, and then
after a few days later, he starts talking about the talk shows:
I found my career, I can tell a fable.
         And they start questioning him, the press, and here's
the CNN interview.  Everybody should be supportive of
Mr. McVeigh -- or him -- because he's an innocent man.
         And he goes on down on the 30th:  I was thinking of
one cool million.  And then on May the 8th, The less I say
right now, the bigger the price is going to be later.
         And then two days later, Mr. Nichols is arrested; and
then he goes on down and on August the 10th he completes his
statement.
         So here's what happened -- and I apologize that I've
taken so much time as I have -- Tim McVeigh was his friend; he
didn't know anything about Oklahoma City; he read the
newspapers, he knew the heat was on, this was a terrible crime,
worldwide attention; and he saw an opportunity, an opportunity
to live on Easy Street; but first he had to square it away with
the FBI, and he knew they were interested in Tim McVeigh.  You
know, when he was there in Oklahoma City, he didn't say I can
give you Terry Nichols.  He said, I can give you Tim McVeigh.
I can give you Tim McVeigh.  And then proceeded to regurgitate
over several months what had already been in the media.
         And then says to you, Well, golly I didn't know till
just now the FBI found that key in the lobby -- or in the
alley.  And the Government says, Well, that corroborates his
story.  Well, which story?  Michael Fortier's various
statements, because they're built on a house of cards, have
covered virtually every possibility.  Terry Nichols wasn't a
member of the conspiracy, he wanted out; well, Tim said he was
in too deep, so he could stay in.  Well, Tim was going to drive
the truck into the basement, commit a suicide bomb.  Well,
Terry was going to bring the car down with Tim on Sunday.
Well, no, maybe Tim was going to bring the car down.  I mean,
how many other possibilities are there?  As long as you've got
a 360-degree circle with an arrow, you can say any part of his
story is corroborated because he's covered every possibility
that there is.
         Now, there are, however, two or three things about
what he told you that you have a measuring stick.  The robbery.
Now, Mr. Mackey said, Well, Mr. Jones will probably say -- or
at least he suggested by inference -- we didn't call Roger
Moore.  Well, the reason we didn't call Roger Moore is because
this is a murder prosecution, not an armed robbery prosecution.
Well, let's think about that for a minute.  What's this
corroboration?  I mean, easily an hour was spent telling you
how much Michael Fortier had been corroborated.  Well, here's
the biggest corroboration of all, the man who was robbed.  I
mean, how many times has he been robbed?  You think he's
forgotten that somebody came up in camouflage fatigues, a ski
mask on, held a shotgun on him, and robbed him of everything --
or at least a number of things that were valuable in his house?
So why didn't Roger Moore testify?  Why didn't he?
         Well, I'm not on the prosecution, team.  Well, Steve
Jones could have called him.  Well, sure, I could have called
him, I suppose.  Except even by Michael Fortier's testimony,
Tim McVeigh wasn't there.  And the Court, I believe, will tell
that you I don't have to prove anything.  It's the Government
that has to corroborate Mr. Fortier, and that's the single most
important piece of corroborative evidence there is, and it was
not called.
         Instead, the strong suggestion is left that after Tim
got these ten rifles or so from the death of his grandfather
and his estate was closed out and started going on the gun-show
circuit that what we have here is an attempt for Tim to aid
Michael, who's down on his back with no job, and say, Well, if
you'll go to the gun show circuits -- and I'll tell you how to
do it -- you can sell this; we have to give Terry some money,
and you can make some money.  And this is a lot easier than
what you're doing out there.
         And, you know, Michael found out it was.  He started
going to these gun shows on the weekends with this so-called
stolen property from a gun dealer in Arkansas, and said, Well,
I didn't think he would show up in Nevada.  Well, how did he
know?  I mean, Tahoe is a pretty prominent place, Las Vegas is
a pretty prominent place.  He didn't know what Roger Moore's
schedule was.  And it would be easy to know whether these guns
are stolen or not.  Presumably a gun dealer has a record of
what he's got, a list or an inventory.  But Roger Moore wasn't
called.
         So I submit to you there was no robbery.  Now, I don't
know what Roger Moore may have said.  But there wasn't any
robbery.  If there was a robbery, you wouldn't have to depend
upon third- and secondhand hearsay statements through Michael
Fortier to establish it.
         And I'm still at a loss to understand how one man can
take a stock shotgun and hold up another man and tie him up
with duct tape and put something over his eyes where he can't
see and then untie him and ask him to carry the stolen property
out to his van and then come back and tie him up.  I don't
think that passes common sense.
         But there are two things that Mr. Mackey said that are
perhaps a little bit more serious, and certainly a little more
consistent with human experience.  The first one was the
disguise of Tim McVeigh as the biker.  Well, I just simply
asked Mr. Fortier, Had Tim McVeigh ever been to Sturgis, South
Dakota?  It wasn't a disguise.  He was a biker.  He went to
Sturgis.  He told him about sitting at the same table with
Peter Fonda.  Now, he may have said that to Jennifer.  She says
he did.  I wasn't there.  She says that, and he may have said
it.  But I mean he didn't have to go to Sturgis to effect the
disguise; he went to Sturgis, because as all of you know, in
South Dakota, that's where they have the big motorcycle races.
         And then there's Lori Fortier and the iron, and I
would agree that that kind of sounds like human experience.
But the question is was she describing Tim McVeigh using a
false identification, or was she describing something that she
did for her husband.  Because the simple truth of the matter is
the driver's license has never shown up.  It is not an exhibit
in this case.
         So with respect to the Fortiers, this is my bottom
line:  Why not do what Mr. Hartzler recommended?  They're not
important to the case.  They're not believable.  Put everything
they said aside.  Forget them.  That would be consistent with
what I believe a reasonable person would do under the Court's
instructions.  Because I think that the judge might charge you
that in weighing reasonable doubt, you'll do it on the basis of
what kind of doubt would you have in something important in
your life, what would cause you to hesitate before you made a
decision on anything important to you.
         Well, let's think about that for a moment.  Suppose a
month from now you pick up the newspaper or you learn that
Michael Fortier is looking for a job.  Would you hire him?
Lori Fortier wants a baby-sitting job.  Would you hire her to
look after your children?  Or you're driving down the road,
maybe up to Cheyenne, and you see their car off to the side and
they've got the hood up and they've got car trouble.  Would you
stop and help them?  Or suppose you've got an extra bedroom to
rent or garage apartment and they show up and you are asked to
rent it to them.
         Knowing them as you do now, I respectfully submit you
wouldn't give them employment, you wouldn't loan them money,
you wouldn't buy anything from them, you wouldn't extend them
credit, you wouldn't invite them in your house, you wouldn't
want to be associated with them, you would ignore them.  And
that's really -- some of them are very important things, some
of them are just kind of routine, ordinary things.  So why not
apply the same standard here, particularly since Mr. Hartzler
suggested it, and just ignore them with respect to this case.
         Now, I have asked Mr. Nigh to speak with you about the
next leg, the so-called motive or political viewpoint.  And
then Mr. Tritico will address with you the forensics, and then
I will come back with the other.  And at the conclusion of it,
I think you will see that Mr. and Mrs. Fortier are not
corroborating; they simply, after the items appeared in the
press, regurgitated them back to the FBI.
         THE COURT:  Mr. Nigh.
                       CLOSING ARGUMENT
         MR. NIGH:  Thank you, your Honor.
         May it please the Court, ladies and gentlemen.
Beginning where Mr. Jones left off and with what some of
Mr. Mackey has already said to you this morning, I think that
it's important to recognize that some of the things described
by Mr. Mackey and the Government are precisely the things that
you heard from the witness stand.  The problem with that is
that the evidence that came from the witness stand in the
spring of 1997 was dramatically different from what these
witnesses said to the FBI in the spring of 1995.
         Mr. Mackey suggested to you in reference to Jeff Davis
that what you should do is to believe what Jeff Davis first
told the FBI when they interviewed him in 1995.  And I would
suggest to you that that's the rule that we ought to apply in
reference to the Government's witnesses as well.
         We like to think that federal law enforcement
officials operate on the highest standards possible and that
they do things right.  We like to believe that the criminal
justice system is designed to ascertain the truth and that the
Department of Justice actually seeks justice.
         But I would submit to you, ladies and gentlemen, and
that in this case the evidence demonstrates strongly that what
law enforcement did was terribly, terribly wrong.  Instead of
objectively investigating the case, the federal law enforcement
officials involved decided the case.  And then attempted to jam
the evidence and the witnesses to fit the predecision.
         It was not a search for the truth.  It was a desperate
attempt to hammer the square memories of the witnesses into the
image and into the likeness of Tim McVeigh.
         If you want to start at the beginning in terms of the
most important witnesses to the Government's case, let's start
with the very unambiguous and clear statements that Eldon
Elliott made to the FBI, to Agents Crabtree and the visual
information specialist Vince Rozycki when they came to visit
him just days after the event.  In those few days, what
Mr. Elliott told to the FBI was that Robert Kling was my
height, meaning Eldon Elliott's height, 5' 10" tall; that he
was wearing camouflage, and that he had acne.
         Now, if you apply the Government's rule of let's
believe what the witnesses tell the FBI when they're first
interviewed, then that's the description of Robert Kling.
         But in the spring of 1997, Eldon Elliott's description
of Robert Kling has dramatically changed.  During the course of
that intervening two years, Eldon Elliott begins to recall all
of a sudden that Robert Kling wasn't the same height as Eldon
Elliott.  Now, all of a sudden he was slumped over that
counter, and therefore he must have been much closer to
Mr. McVeigh's height.
         But it doesn't stop there.  If you turn next to the
purchase of the Mercury Marquis and the testimony of Tom
Manning -- that occurred in the video deposition -- Mr. Manning
stated during that video deposition that over the course of a
year and a half, he had spoken to the FBI on eight separate
occasions.  And not during one of those statements to the FBI
did he ever say that Tim McVeigh left the Firestone dealership
during the course of the morning on April 14 of 1995.  Not
once.
         All of a sudden, a year and a half later, a year and a
half after the event that he was supposed to remember so
clearly, he said, Oh, now I remember, he was gone for a little
bit, a few minutes, said I'll be right back.  But the problem
is that when he said that, he said it happened at the time that
the car was being serviced.  It happened when the road work was
being performed on the car.
         And the reason that you know that it couldn't have
happened is because of the testimony of Art Wells.  Now,
Mr. Wells cannot account for Mr. McVeigh's presence during the
entire course of the morning of April 14.  But he can account
for Mr. McVeigh's presence during the time that Mr. Manning
suddenly said that Mr. McVeigh left.  So you know that he
didn't leave.
         Then let's turn for a moment, if we may, to the
Dreamland Motel and the testimony from Eric McGown concerning
the events of the spring of 1995 and the events involving the
Ryder truck at the Dreamland Motel.  If we use the Government's
rule about let's believe what the witnesses first say to the
FBI, then you have to believe Eric McGown's statements to the
FBI that the Ryder truck was there on Sunday, instead of the
transfigured testimony of Eric McGown from the witness stand,
that you know, I never really was sure that it was Sunday, it
could have been Monday.
         Well, the reason, ladies and gentlemen, that Eric
McGown is not sure and it could have been Monday is because if
it wasn't Monday and it occurred on Easter Sunday of 1995, then
it wasn't the truck that carried the bomb to Oklahoma City.
And it doesn't fit with the Government's theory.  So he had to
be uncertain about the day at the time he provided the
testimony, although he wasn't uncertain when he first spoke to
the FBI.
         You know it was Sunday -- and Mr. Jones will deal with
this in more detail -- because of the testimony of Herta King
and Renda Truong.  But if you turn the clock back even before
that, to the fall of 1994 and the Topeka drag race, the Sears
Craftsman National Drag Race held during the weekend in October
in Topeka, Kansas, and the testimony of Glynn Tipton.  Now, you
recall Mr. Tipton said that an individual came up to him and
attempted to buy hydrazine, individual identified himself as
John.  Let's use the Government's rule.  What did Mr. Tipton
first tell the FBI about what John looked like?  Mr. Tipton
said that John was 5' 8" tall and scraggly.
         From Mr. Tipton's statement in 1995 concerning John
being 5' 8" tall, approximately my height, Mr. Tipton's
testimony from the witness stand in the spring of 1997, John
has grown to the height of Tim McVeigh, and Mr. Tipton is
90 percent sure that it was him.
         Ladies and gentlemen, it is those things which cause
me to say that something is terribly, terribly wrong.  The
descriptions of ordinary people have been hammered by the
investigation from encounters with 5' 10" tall Robert Kling
with acne in camouflage to 6' 2" Tim McVeigh in blue jeans;
from a Ryder truck on Sunday, April 16, 1995, at the Dreamland
Motel to a Ryder truck that it must have been on Monday,
April 17, 1995, so that it could be the bomb truck; from the
testimony of Tom Manning -- the statements of Tom Manning eight
separate times that he never left or omitting any reference to
him ever leaving to now I recall that he left.  And of course
then you have the testimony of Michael and Lori Fortier, which
Mr. Jones has already dealt with.  From Mr. McVeigh is an
innocent man to Mr. McVeigh told me about this thing.
         Mr. Jones will deal with each of those evolutions
perhaps in more detail.
         But beyond that, I want to turn to the very beginning
of the case in terms of the Government's proof and the
political literature and the books that the Government has
proven that Mr. McVeigh at least possessed.  And we can talk
also about the literature that was found in Mr. McVeigh's car.
         The Government started with the premise that there was
some significance to the fact that the literature was found in
Mr. McVeigh's car on April the 19th of 1995.  Well, the
literature itself tells you that April the 19th is Liberty Day
and that there were a lot of people that thought of April 19 as
Liberty Day.
         But more importantly, the testimony of Jennifer
McVeigh demonstrates that this was not unusual on April 19 or
any of the other 364 days of the year for Mr. McVeigh to have
that kind of political literature.  He gave it to her, he gave
it to her friends, he gave it to her and asked her to mail it
to other people.  There is no significance whatsoever to the
fact that he had it in his car on that day.
         In a bit, the Government's theory in reference to the
literature evolves yet today, and Mr. McVeigh's statements.
You'll recall that Jennifer McVeigh provided testimony about
Mr. McVeigh saying something was going to happen in the month
of the bull.  The Government's theory at the time that that
evidence was presented that something big was the bombing.  Had
to be referred to the bombing.  But after it gets pointed out
that the month of the bull doesn't begin until April 20 and not
on April 19, then the something big evolves into the revolution
that is going to occur after the bombing.
         It is true that certainly Mr. McVeigh had in his car a
clipping from The Turner Diaries.  And while I would not or
might not defend The Turner Diaries as a piece of classic
literature, I will defend forever Mr. McVeigh's right to
possess it.
         The content of The Turner Diaries does include a
description of the bombing of FBI headquarters in Washington,
D.C., in order to destroy a bank of computers.  And that the
reason for the bombing is detailed at page 80 of the book, if
you care to look at it when you have the evidence before you.
         The passage that Mr. McVeigh had in his car has a
reference to the value of our attacks today.  And the attacks
referenced are described on page 60.  If I can -- let's bring
this closer.
         This is page 60, Chapter 9, if you care to refer to it
when you get the book in front of you.  And the date described
is November 9 of 1991.  And that's the fictional account that
Earl Turner is providing of the events of what was supposed to
have happened on November the 9th, 1991.
         And the attacks referenced are three separate
spread-out-all-over-the-place attacks.  The first one is an
attack on the Capitol in Washington, D.C., through mortar.
Now, it's not a truck bomb, it's a mortar attack.
         The second one is an attack on the city council in Los
Angeles through the use of hand grenades.
         And the third attack is the downing of an airliner in
New York through a missile.  None of it, none of the attacks
had anything to do with a truck bomb or the FBI headquarters;
and that's the passage that was found in Mr. McVeigh's car on
April the 19th of 1995.
         Don't need that one.
         If you look at the -- there are two versions of The 
Turner Diaries in evidence.  One is the Government's version.
They're essentially identical, except the one that the defense
submitted into evidence has on the cover page the amount of
copies that have been sold as of the spring of 1995, and the
number is in excess of 200,000.  If The Turner Diaries is a
blueprint for the bombing of the Murrah Building, there are
200,000 plus or there were 200,000 plus such blueprints running
around the country at the time that the bombing occurred.
         The next item of evidence in reference to blueprints
would be the book Homemade C-4, which the Government through
the gentleman from Paladin Press was able to demonstrate that
Mr. McVeigh ordered back in 1992 and 1993.  And the Government
suggests to you that Homemade C-4 is the way that you can
determine how to build a truck bomb to destroy the Murrah
Building.
         I would suggest to you, ladies and gentlemen, that if
you look at Homemade C-4 and you look at it, you will find that
Homemade C-4 is no more the recipe for a truck bomb than you
can use a can of coffee to feed an army.  This is the book
Homemade C-4 which you have in evidence.  And this is the
recipe that is described within the book for how to make this
substance.
         Start by taking a one-pound coffee can or its
equivalent from a freshly opened bag of ammonium nitrate.  The
coffee can will hold 1 1/2 to 2 pounds of prilled ammonium
nitrate.  And it talks about the height relative to the
diameter.  If you read the entire book, you will not find
anything more than a reference to 1 pound or 1-pound coffee can
amounts of ammonium nitrate.  But it gets better than that.
         Not only does the book talk about incredibly small
amounts of this homemade C-4, it talks about it in a way that
you could not possibly use to build a truck bomb.  This is on
page 19 of the book.  Dry the prill in an oven, set at a low
temperature, not to exceed 150 degrees for at least three
hours.  But don't let the prill melt; ammonium nitrate vapors
are toxic.  So it is essential that the temperature stays low
and the room is well ventilated.  Then it goes on to tell you
how you go on to do this to make about this much homemade C-4.
         The author candidly states in the book that although
he's been doing this for month, he still doesn't have it right
and what he's doing is blowing up holes in the back of his
yard.  There is not an oven large enough anywhere that I know
of to cook 2,000 pounds of ammonium nitrate in this way.  It
also talks about how you have to grind it up and make sure that
it's finely ground in order to do this properly.
         If you look at the book, ladies and gentlemen, it is a
book that was sold to survivalists.  Over 30,000 copies were
sold.  That was from the testimony of Dana Roger, the man from
Paladin Press, and it was sold at gun shows.  It is not a
recipe for a truck bomb.
         Now, I want to turn to the literature that was found
in Tim's car and the literature that he distributed to his
family and friends.  The Government asserts that the literature
supports the proposition that Mr. McVeigh was outraged over the
federal government's actions at Waco.  I would agree it
supports that proposition:  He was.  He believed that the
Branch Davidians did not commit suicide.  He believed that the
federal government had used military force against some persons
that could only be considered innocent.
         But the documents that were in Mr. McVeigh's car prove
that readers of publications such as the Wall Street Journal
believed the same thing.  One of the items found in
Mr. McVeigh's car was a comparison of the episode at Mt. Carmel
to the Warsaw Ghetto in 1943.  And it was a letter to the
editor which appeared at page A13 of the Monday, March 15,
1993, edition of the Wall Street Journal.  And it said that the
things that occurred at Waco and at Mt. Carmel were very
similar to what a group of Nazis had done to the Jewish
community in the Warsaw Ghetto in 1943.  This is not
Mr. McVeigh's handwriting.  Somebody else believed this as
well.  The bottom of the same document has a quote -- sorry --
has a quote from Thomas Jefferson and some other speakers that
are not identified.
         This literature was found in Tim McVeigh's car as
well, and it was found in the Rose Woods box or the box that
Jennifer McVeigh had given to Rose Woods.  It starts with a
quote from Patrick Henry.  "Many cried peace, peace, but there
is no peace"; and it ends with the famous line that we all
learned in grade school.  "I know" what course -- "not what
course others may take, but as for me, give me liberty or give
me death."
         It also has a quote from Alexander Solzhenitsyn's
Gulag Archipelago, and it ends with a quote from Winston
Churchill.  Again, this is not Mr. McVeigh's handwriting; this
is a Xerox copy.  There are other people who possessed the same
kind of literature.
         Let's go ahead and do the next one.
         Perhaps the most important and also perhaps the most
overlooked piece of literature that was taken from
Mr. McVeigh's car was a quote about how to deal with gun
control and what to do about it.  And it talks about how to
take action.  And so that I don't want to -- I want to make
sure that you all understand.  The highlighting that appears on
this is mine.  It didn't appear on the document that was found
in Mr. McVeigh's car.  So I don't want to mislead you in that
regard.
         But the part that I have highlighted says that I would
rather fight with pencil lead than bullet lead.  We can win the
war in the voting booth.  If we had to fight in the streets, I
would not be so sure.  Stamps are cheaper than bullets and can
be more effective.  It was political thought.  And it was
political thought about taking nonviolent action, and it was
found right along with the rest of the documents in
Mr. McVeigh's car.
         The bottom line in reference to these types of items
of evidence, ladies and gentlemen, is that if possession of
these kinds of political beliefs was motive for the Murrah
Building bombing, it was a motive that was not unique to Tim
McVeigh.  Mr. McVeigh is entitled to his views about the
Government just as every other American is entitled to possess,
read and discuss words like these from the Founding Fathers.
         In reference to this case, ladies and gentlemen, what
has been described as motive means nothing.  The Government has
indicated that this is a murder case.  And in an ordinary
murder case, you can think of motive in compelling terms.  The
defendant had the motive to commit the crime.  But when you
think of it in those compelling terms, it is a motive that is
unique to the defendant.  He committed the crime because
someone had wronged his wife, or he committed the crime because
he had been cheated in a business deal, or he committed the
crime because the victim of the crime had beat him up in a
fight in the past.  Those types of motive are unique to the
defendant on trial.
         And the motives that have been attributed to
Mr. McVeigh are in no way unique.  If you say that it is
motive, then you have to do a value judgment about how much
political literature you have to have before you can call it
motive.  Can you start with quotes from the Founding Fathers
and include The Turner Diaries?  Or do you move the scale back
and say that anybody with political views just a little right
of center had the motive?  I submit to you, ladies and
gentlemen, that in the context of this case, this political
literature and the word "motive" mean nothing.
         Thank you.
         MR. TRITICO:  Would you like me to begin, or take a
break now?
         THE COURT:  I think we'll take the break now.  It's a
convenient time.
         Members of the jury will again remember that the case
is not given to you as yet.
         Court is not in recess.
         Members of the jury, the case is not given to you as
yet.  We have additional comments from counsel and instructions
that I will give you with respect to the law, so please once
again during this time relax, take advantage of the rest stop,
and do not discuss the case even among yourselves.  You're
excused now, 20 minutes.
    (Jury out at 3:08 p.m.)
         THE COURT:  We'll be in recess, 20 minutes.
    (Recess at 3:09 p.m.)
    (Reconvened at 3:28 p.m.)
         THE COURT:  Be seated, please.
    (Jury in at 3:28 p.m.)
         THE COURT:  Mr. Tritico.
         MR. TRITICO:  Thank you.
                       CLOSING ARGUMENT
         MR. TRITICO:  May it please the Court.
         THE COURT:  Counsel.
         MR. TRITICO:  Several months ago, my four colleagues
sitting behind me here and I decided that one of us had to
return to school to learn chemistry.  Upon taking an election
and a vote of 4 to 1, I was elected to return to school and
learn chemistry in preparation for this case.  It's a job that
I accepted willingly and one that I thoroughly enjoyed in
learning.
         During the last month or so that we have put on the
evidence in this case, I'd like to thank all of you for the
attention that I know you paid while we went through the trying
chemistry evidence in this case.
         On my schooling with Dr. John Lloyd and the others who
assisted me, I found that the education that I was getting was
more like a Stephen King novel than it was a chemistry class
because of the way the FBI lab operates and what we know now
about the way the FBI lab operates.
         This is a lab that's more like a ship without a
rudder, without a sail, and without a captain.  This is a ship
adrift in the ocean, but this ship is making judgment calls
that affect the rest of people's lives.
         You have to back up to the beginning of this case to
understand the fallacy of the FBI lab.  You actually have to
back up before the beginning of this case to understand the
fallacy of the FBI lab.
         Ladies and gentlemen, Dr. Fred Whitehurst came here
under subpoena, of course, and talked to you about the lab that
he has made his career, talked to you about the things that he
did that he saw at this lab that has probably cost him his
career.  He talked to you about the problem of contamination,
about the problem of the unit chiefs in this lab that are not
qualified to do the job they're doing.  He talked to you about
Roger Martz.
         Roger Martz was the chief of the Chemistry and
Toxicology Unit in this lab at the time that this case was
being investigated.
         Ladies and gentlemen, did Roger Martz testify in this
case?  Did Roger Martz take that witness stand and talk to you
at all about the testing that he did in this case?
         Ladies and gentlemen, you have to ask yourself, you
have to ask these prosecutors right here, Why didn't Roger
Martz testify?  Why is Roger Martz the former chief of the
Chemistry and Toxicology Unit?  Why didn't Roger Martz come and
tell you about the testing he did on the clothing prior to the
time that Steve Burmeister tested it?  Why didn't Dave Williams
testify in this case on behalf of the prosecution?
         Dave Williams was the chief of the Explosives Unit
prior to the time -- during the time that this case was being

investigated.  Why didn't he take the stand?  Why didn't the
Government call him?  Why did I have to call him and elicit
testimony from him that he's not qualified to write reports and
render opinions in areas other than explosives analysis?  Why
didn't the Government give you that information?  Why is Dave
Williams no longer the chief of the Explosives Unit at the FBI
lab?
         Then we go to April 19, 1995, the day of the explosion
in Oklahoma City.  Dave Williams went to Oklahoma City; Steven
Burmeister went to Oklahoma City; and Mr. Kelly, Mr. Ron Kelly,
went to Oklahoma City.
         Mr. Kelly is the man that the Government purports --
the man that took that stand and told you that he found the
critical piece of evidence that the Government alleges in this
case, Q507, in the parking lot.
         Ladies and gentlemen, analyze the testimony of Ron
Kelly.  Think about it, on cross-examination what he told you.
First he told you, I found Q507 in the parking lot.  And on
cross-examination, he said Steven Burmeister was right there
with him when he found Q507.  What did Special Agent Burmeister
tell you?  I wasn't there.  I wasn't there when he found it.
         What did he tell you about taking notes?  I don't take
contemporaneous notes about the activities that I'm doing when
I'm conducting an investigation.
         This, my friends, was the most important investigation
in FBI history.  Nobody at the FBI lab took contemporaneous
notes of the actions that they were taking in Oklahoma City in
the day of and after the bombing.
         But wait a minute.  Ron Kelly did take notes.  Do you
recall when he pulled the diary out of his pocket, after I
asked him several times, Do you take notes?  Do you have a
contemporaneous memorandum of the things that you did, the
activities that you took when you were there in Oklahoma City,
so that this jury can know what you did?  Do you have some
documentation to show that you found Q507 in the parking lot?
He pulls the diary out of his pocket:  These aren't notes; this
is a diary, so that I can report back to my boss what I did.
         Ladies and gentlemen, that's notes.
         Then he told you, I've got a map that tells me where I
found Q507.  He knows where he found Q507, because on the map
are the numbers identified in the pictures taken by the
photographer that he had with him.  Do you recall that Frame
No. 4 was purportedly a picture of Item No. 6, which Mr. Mills
numbered Q507?  Do you recall Frame No. 4?
         That's Frame No. 4.
         Now, either Q507 miraculously changed from a large
piece of metal to a small piece of wood -- and given the story
that the Government has given you about Q507, I wouldn't doubt
that that's their story, too; however, that is not a picture of
Q507.  How many hours do you think it took Mr. Kelly and others
with the FBI to search through the literally thousands of
photographs to find one that happened to include Q507?
         That's the photograph that Ron Kelly testified he had
taken of Q507.  Examine it, ladies and gentlemen, closely.
When you look at it, you see that it is actually a picture of
that large piece of metal.  They just happened to find one that
had Q507 in it.  Why is it that they didn't have a picture of
Q507 square in the middle, like this one?  Why is it that Ron
Kelly didn't have the photographer take a picture like this of
Q507?
         Ladies and gentlemen, Ron Kelly did not find Q507 in
the parking lot on April 20, 1995.  My friends, Q507 was found
by a citizen.  I do not doubt that Ron Kelly took possession of
Q507.  I do doubt that he took it from the parking lot, as he
alleged.
         How do we know that?  Frederic Whitehurst, a member of
the lab for 11 years, the most experienced forensic examiner in
the FBI lab, was asked by Dave Williams, the principal examiner
in this case, the principal examiner who wasn't called to
testify, however, but the principal examiner, to do paint
analysis on Q507 so that they could tie it to a Ryder truck.
Frederic Whitehurst said, I've got a problem with the protocols
for the paint analysis section, because they haven't been
validated.
         And what did Dave Williams tell him?  What did Fred
Whitehurst take that witness stand against his colleagues to
tell you?  Dave Williams said, Don't worry about it.  That
piece of evidence was found by a citizen, and we have no chain
of custody.
         Now, Dave Williams denied that.  Steve Burmeister was
called back in rebuttal to allege to you that Fred Whitehurst
may have been confused about another piece of evidence.  How
many items of evidence did Steven Burmeister show Fred
Whitehurst with crystals on it?  One.  If you'll recall, Fred
Whitehurst did not know that it was Q507.  He only knew the
only information he had was that it was the piece of evidence
that Special Agent Burmeister showed him with crystals on it.
It was Q507 that Dave Williams was talking about.
         Now, let's leave behind for a moment that Q507 may
have been found by a citizen and that there is no chain of
custody.  Let's discuss for a minute the amazing
characteristics of Q507, this piece of evidence that started
out a half inch thick on a box, on a Ryder truck, a half inch
of solid piece of plywood that's glued together.  Additionally,
it's got two layers of glue in it and poured with a solid sheet
of gel coat.  If you recall the testimony of Mr. Anderson early
in the case about the construction of the Morgan box, it's got
rivets all the way around the outside and three rows of rivets
down the middle of the sheet.
         Somehow, some way, magically, at the time of this
explosion, an explosion that you know from the evidence, that
you heard from Steven Burmeister and Linda Jones, the experts
called by the Government to testify in this case, that at the
time of an explosion, if the blast wave is 5,000 feet per
second, so we can use a number, it moves away 90 degrees in
every direction at the same speed from the center of the
explosion -- somehow, some way, magically, these crystals that
evaporate at about 200 degrees -- ammonium nitrate -- excuse
me -- vaporizes at about 200 degrees -- made it through the
heat, waited until somehow Q507 was sheared into about
10 percent of its original piece, moving away at 5,000 feet per
second; these crystals, these magical crystals, waited until it
was sheared away, picked up speed faster than the blast wave,
caught Q507, and embedded themselves on the interior side of a
piece of wood moving away at 5,000 feet per second.  Magic.
Magic.
         More like smoke and mirrors, ladies and gentlemen.
         Q507 then on its magical journey travels 184 feet into
the parking lot, where the Government claims they found it.  In
between the time that the Government found it, or the citizen
found it, and Q507 was analyzed, a torrential downpour occurred
in Oklahoma City on April 19, a downpour so heavy, so strong,
that Special Agent Burmeister's plane had to land in Little
Rock, it couldn't land in Oklahoma City; a torrential downpour
so heavy and strong that the evidence in this case -- that the
evidence has shown that the wind was blowing 30 to 40 miles per
hour, but not around Q507.  It just laid there in the parking
lot, didn't get blown, and obviously didn't get wet because
crystals of ammonium nitrate -- the hydroscopic crystals of
ammonium nitrate that soak up water and melt in water and
evaporate away made it.  They lasted through the storm, and
they made it through the blast.  Magic.
         Ladies and gentlemen, it is more logical that the
crystals that were found on Q507 made their way onto Q507 after
the blast.  I don't know where they came from.  They may have
come from the ammonium-nitrate-based firefighting tools that
were used by the firefighters in Oklahoma City.  As Steven
Burmeister testified, ammonium nitrate and nitrate ions can
naturally bond together and form a crystal.  That may have
happened.  I do not know.
         But it is not my burden, it is not Timothy McVeigh's
burden, to prove anything.  The Government has the burden of
proof in this case and in every case, and they always will.
They have not proven to you the origin of the crystals on Q507,
although they have tried.  Although they have made a valiant
effort to prove to you that these crystals were a result of
ammonium nitrate prills, they have not done that.
         And let's talk about the final failing with the prills
of -- the crystals of ammonium nitrate that Steven Burmeister
found on Q507.  He gets it to the lab.  Here they are.  The
testimony in this courtroom was they were embedded.  You know
now after Dr. John Lloyd had to endure that cross-examination
alleging that he was making up that Steven Burmeister said it
was a glaze -- you know now by the evidence in this case that
that's what he wrote in 1995:  Not embedded, glazed.
         What you know now is Steven Burmeister did in fact --
and I believe it that he did pull a crystal off of Q507 and
drop it in the magic juice and it turned purple or blue or
whatever color it turns.
         Now, we've got a receipt that shows that the purchase
of ammonium nitrate in Kansas was ICI Joplin prills
manufactured in 1994.  So what are we going to do?  Steven
Burmeister is going to prove to you that these crystals
originated as ICI Joplin prills; so he takes Q507 to ICI to be
analyzed.  The magic crystals, the crystals that so magically
appeared, have so magically disappeared.  They're gone.
         ICI doesn't get to test them.  Dr. John Lloyd doesn't
get to test them.  Linda Jones doesn't get to test them.  There
is only one person on the face of the earth that got an
opportunity to test the crystals of ammonium nitrate on Q507:
Special Agent Steven Burmeister.
         It doesn't matter, though.  What did he tell you about
the loss of the ammonium and nitrate crystals?  What did he
tell you about losing somehow the most important piece of
forensic evidence in this case, the only piece of forensic
evidence that they could bring you from Oklahoma City?  What
did he tell you about losing it?  It didn't matter; I was
through testing it.
         Is that sound forensic science?  Is that the type of
science that you would expect from an objective forensic
scientist?  It's more like the type of science that you would
expect from a special agent of the Federal Bureau of
Investigation who had long before the testing made up his mind
about the facts of this case.
         He took no effort to preserve those crystals, but he
did test them.  And when he tested them, he found substances
consistent with the coating of ammonium nitrate prills,
aluminium and sulfur.
         So we've got that evidence.  Let's go to ICI.  Let's
test the prills from Joplin in 1994 and let's find out what the
coating is on them.
         What did he tell you?  Talc.  And what you found from
the evidence, what you know from that witness stand from Steven
Burmeister, is that a component part of talc is magnesium.  Do
you recall the testimony as the last witness in the case, the
last piece of evidence that you heard from the witness stand,
Steven Burmeister telling you about the crystals and the
testing on Q507 that he found no magnesium?
         Ladies and gentlemen, if the aluminum and the sulfur
are the coating of the prill, he would have found magnesium,
also.
         I do not know where the crystals on Q507 originated
from.  I do not know how the crystals on Q507 got glazed over
the surface of Q507, but we do know from the evidence in this
case that those crystals did not originate from ammonium
nitrate prills manufactured by ICI Joplin in 1994.
         Now, the lab went on to test some additional evidence:
the clothes, Mr. McVeigh's two T-shirts, and his pants.  They
took an interesting route to the lab.  They were seized in
Noble County.  They were not evidence.  They were clothes.
They were Mr. McVeigh's clothes, a man arrested for carrying a
weapon; so they were thrown in a paper bag and left alone in
the room upstairs where the attorneys meet with the clients and
where the trustees sometime hang out.
         I do not allege and I do not stand before you and
state that anybody in Noble County intentionally contaminated
those clothes with PETN.  I only tell you that somehow, PETN
got on the clothes.  You may have noticed by now, you may have
wondered throughout the course of this trial, what home does
PETN have in this case?  It's been found in three places:
Mr. McVeigh's inside T-shirt, Mr. McVeigh's outside T-shirt,
and the pockets of Mr. McVeigh's blue jeans.
         The Government didn't bring you any PETN from Oklahoma
City.  The Government didn't bring you any PETN from any of the
storage units that were searched by the FBI lab.  The
Government didn't bring you any PETN from Mr. McVeigh's car.
         Now, Steven Burmeister took that witness stand and he
told you that he had enough PETN on his hands -- and he's
right-handed.  That's important:  We've got more in the right
pocket.  But we've got to ask a question about that -- and I
digress for a moment if I may.  This lab does no quantitative
analysis.  You heard that more than once in this case.  How
does Steven Burmeister know there is more PETN in the right
pocket than the left?  How does Steven Burmeister know how much
PETN was on any item he checked in this case?  He didn't try to
find out.  He doesn't want to find out.
         But that's okay.  We've got more PETN in the right
pocket, because he's right-handed.  He saw him writing here at
the counsel table and used that against him and said that's
consistent with him having more PETN in the right pocket.  If
that's the case, if he had more PETN on his right hand than his
left, where is the PETN from Mr. McVeigh's steering wheel?  The
sticky substance, as Ms. Wilkinson proved up, that would have
transferred when he grabbed his steering wheel to drive a car:
Where is it?  There is not any.
         Where is the PETN that would have been on the gear
shift knob when he shifted the car into drive or reverse or
neutral or low?  There isn't any.
         Where is the PETN that would have been on the door
handle when he opened the door?  There isn't any.
         And finally, and most importantly, because they can
say all day that it doesn't matter that it wasn't on his car,
it certainly should have been on his fingerprint card when the
Noble County Jail took his fingerprints.  There was no PETN, no
ammonium nitrate, no residue of any kind on Mr. McVeigh's
fingerprint card taken before he had an opportunity to take a
shower at the Noble County Jail.
         My friends, if Tim McVeigh had cut det cord and got it
all over his shirts and on his hands, it would have been
somewhere else other than his clothes.
         Do you recall Dr. John Lloyd testifying about the
testing done by this lab, by the FBI lab, the Federal Bureau of
Investigation, on the fingernail scrapings taken from Tim
McVeigh at the Noble County Jail?  No PETN.  They took a hair
sample from Tim McVeigh at the Noble County Jail tested by
Steven Burmeister and the crack scientists at the FBI lab.  No
PETN.
         PETN does not seem to have a home in this case, but it
does; and we know now where it does.  You found out -- and I'd
like to thank Ms. Wilkinson for recalling Steven Burmeister and
allowing me the opportunity to clear up something that I had
been trying to do the whole trial.  And the last witness in
this case, Steven Burmeister, testified and he told you that he
knew -- he already knew that the bullets that Tim McVeigh was
carrying in his pockets and in the clip on his gun were
manufactured with PETN.  That's why Tim McVeigh had PETN in his
pockets.  That's why Tim McVeigh had PETN on his T-shirts.  If
you will recall, Charlie Hanger found Tim McVeigh wearing a
handgun with a shoulder holster that would have rubbed on the
shirts.  When you fire a weapon, it leaves a residue.  That
residue in this case was nitroglycerine and PETN.
         Steven Burmeister told you that nitroglycerin is --
evaporates very rapidly.  It's not inconsistent that that shirt
only had the sticky substance PETN left on it.
         And finally, with respect to the PETN, where is the
testing on Mr. McVeigh's knife?  How many times in this case
have we heard -- and today in Mr. Mackey's closing argument did
you hear that you have to cut the det cord with a knife?  When
you cut the det cord, the PETN spills out and gets all over
you.
         Where is the forensic testing on Mr. McVeigh's knife?
If Mr. McVeigh had cut det cord containing PETN enough to spill
out on his clothes, his shirt, drop into his pants pockets, it
would have been on his knife.
         If PETN was on Mr. McVeigh's knife, Mr. Burmeister
would have told you about it.
         There is no PETN on the shoes.
         How about ammonium nitrate, ladies and gentlemen?
Now, we've discussed the magic of Q507 and the crystals glazed
upon it.  Where is the rest of it?
         The Government's theory in this case is that Timothy
McVeigh participated in pouring 4,000 pounds of ammonium
nitrate into barrels, barrels with holes in them about that
big.  Where is the ammonium nitrate on Tim McVeigh?  There is
no ammonium nitrate in his fingernail scrapings.  There is no
ammonium nitrate in his hair sample.  There is no ammonium
nitrate on either shirt.  There is no ammonium nitrate on his
pants.  There is no ammonium nitrate on his shoes.  There is no
ammonium nitrate in his car.  There is no ammonium nitrate in
any of the storage sheds.
         That's okay.  He showered at the Noble County Jail, if
you will recall the testimony; so if I understand the theory
that the Government is asking you to buy into in this case, it
is that Tim McVeigh poured 4,000 pounds of ammonium nitrate
into barrels with holes about that big, covered with P -- with
ammonium nitrate.  Do you recall the testimony of Mr. Rydlund
that it's dusty; that you can't breathe it or you might get
sick?  Do you recall the testimony of Mr. Rydlund that too much
exposure to ammonium nitrate will cause a skin rash?  Do you
recall that Tim McVeigh had no rash when he was arrested?
         Do you recall the bag, the empty bag of ammonium
nitrate that the Government introduced about the third day of
trial in this case?  They offered it to show you what the bag
looked like and that it says "Explosives" on it.  I offer it,
ladies and gentlemen, for the ammonium nitrate stuck on the
bottom of the bag of the Government's exhibit.
         I offer it, ladies and gentlemen, to show you that
these prills get everywhere.  I offer it, ladies and gentlemen,
to show you that Timothy McVeigh, had he poured 4,000 pounds of
ammonium nitrate into barrels, would be covered in ammonium
nitrate.  I offer it, ladies and gentlemen, so that when you
analyze the size of the prill on the bottom of the bag, you
will know that surely one or more of them should have gotten
lodged in his boots.
         But that's okay.  Timothy McVeigh showered at the
Noble County Jail.  It doesn't matter that we found no ammonium
nitrate, because he showered.  It is the theory of this case
that he poured the 4,000 pounds of ammonium nitrate into the
barrels, said, My gosh, I'm covered in ammonium nitrate, I'm
going to go home, shower, change clothes, come back, cut the
det cord, get PETN all over me, not change, and go deliver the
bomb.
         Ladies and gentlemen, we must use our common sense
when we analyze evidence.  We must use our common sense when we
analyze the testimony of the experts called by the Government
in a case this serious.  And this is not logical.
         The FBI lab, as I said earlier, is a ship without a
rudder.  It's adrift without a sail and a captain.
         The clothes in this case were brought in in a
cardboard box checked in by Mr. Mills; and he took them and put
them on the floor, a floor that you know now has never been
tested for contamination.  It doesn't matter.  We're not
contaminated.  We know we're not contaminated because we say
so.
         That's not enough.  That doesn't cut it.  This is a
criminal prosecution.  The FBI lab has a higher burden than
just to say, We're not contaminated; than just to say,
regardless of the fact that Dr. Fred Whitehurst, after eleven
years of faithful service, has found contamination in this lab,
We're not contaminated.
         Compare and contrast this lab with Linda Jones', the
other Government expert, the Government expert called in in
place of Dave Williams to testify in this case.  What does her
lab do?  How does her lab protect from contamination?  The
first thing that lab did, the DERA in London -- the first thing
they did was say, We know that any trace analysis facility in
explosives residue is going to get contaminated.  We understand
that.  We appreciate that, and now let's work within it.  Now
let's do something about it, understanding that there is a
problem, a problem that we will never be able to do away with.
         So what did they do?  They said 10 nanograms, which as
I recall -- and I'm sorry my chemistry class was not that
good -- I can't recall how small; but as I recall, it's about a
spec of dust.  10 nanograms of contamination is all we will
stand, and we will test this lab every week.  And if we get
more than 10 nanograms, we will stop in that area and we will
clean.
         If we get test results within 10 nanograms -- in other
words, when I run my questioned sample through my GC/Chem and
my IMS and my FTIR and all the other acronyms that I've
forgotten, if I get less than 10 nanograms on my quantitative
analysis, I'm going to report it.  I'm going to tell the
prosecutor in that case that the results I got could be a part
of random contamination.
         We don't do that at the FBI.  We don't want to do that
at the FBI, because Special Agent Burmeister is just that:  He
is a special agent.  A professional forensic scientist would
take the effort, the time, and the energy to do the
quantitative analysis necessary so that juries like yourself
will know for sure if the information and the evidence that
you're getting is clean and clear of contamination.
         But we don't want to know that.  We don't want to take
the time and the effort and the energy to do the quantitative
analysis because it's too hard.  It takes too much time.  We're
busy.
         Are you going to rely on that?  You can't.  You can't.
         The lab has an obligation to you as jurors to give you
professional and objective information.  They did not do that.
         Linda Jones' lab restricts the visitors who can enter
the trace analysis area.  Not our lab.  Let's take the military
in from all over the world.
         Linda Jones' lab makes you wash your hands before you
can come into the locked door.  Not our lab.  Come on in, boys.
We don't care if you just came from the bomb range.  We're not
going to test you.  Doesn't matter anyway.  We're not
contaminated.
         Linda Jones' lab makes you put on gloves and Tyvex
suits and cover your shoes.  Not our lab.  Come on in, boys.
Check it out.  Touch whatever you want, walk across the carpet
we've never shampooed.
         Ladies and gentlemen, that's not a professional
forensic lab.  Linda Jones' lab is.  I applaud the efforts that
she's taken and her lab has taken to ensure the integrity of
the results.
         It is unfortunate that in this country the Federal
Bureau of Investigation, the group that claims to have the
finest forensic lab in the world, is so shabbily maintained and
so shabbily managed.
         We brought Dr. Lloyd in from London, someone who knows
how a lab should operate, someone who knows how a lab should
work, to review the 5,000 pages of notes produced by the
Government in this case.  What did he tell you?  He told you
that with respect to the shirts and the clothes -- I mean the
pants, he might have tested them just to see; but the route
they took, the way they were maintained, the way they were
handled by Roger Martz and Brett Mills taken through the lab
without proper forensic trace analysis testing, he would not
even have reported the results.  That's professionalism.  That
is a forensic scientist who understands his obligation and his
duty is to produce reliable and objective forensic results.
         What did Linda Jones tell you about Q507?  She
certainly would have liked to have known that Brett -- that
Roger Martz had tested Q507.  She certainly would have liked to
have known the results of the testing by Roger Martz.  Wouldn't
you like to know the testing by Roger Martz, the results of the
forensic testing performed in this case by the former chief of
the Chemistry/Toxicology Unit?  Wouldn't you like to know that?
It is a shame that the Government did not call the former chief
of the Chemistry/Toxicology Unit to testify in this case.
         Sure, I could have called him.  But why?  I don't have
a burden.  It's their burden to prove that the testing they did
in this case is fair, is reliable, and is objective.  It seems
reasonable to conclude that they felt they could prove that
easier without the former chief of the Chemistry/Toxicology
Unit, Roger Martz.
         William Bodziak came to testify in this trial about
some tire marks, tire tracks that he looked at in Herington,
Kansas.  What did he tell you?  He took some pictures, he did
some measurements, and he went home.  He can't tell you -- he
can't tell you that the tire marks that he saw in Herington,
Kansas, came from a Ryder truck, and he can't tell you that
because he never really did anything.  He never really tried to
find out if it was a Ryder truck.  Don't you know that if this
very experienced tire tread analysis guy, author of books, had
gotten a mold sufficient to prove that the tires that left
those tracks were from a Ryder truck, he'd have showed you?
Don't you know that if he had made one effort to determine how
many vehicles on the road have the same axle width as those
20-foot Ryder trucks, he'd have told you?
         But what you do know is he never even asked.  He never
called Ford Motor Company, the same company that bought a Ryder
truck for the Government in this case, cut it up into parts,
mounted it onto dollies, and brought it to Denver for them --
never called them.  Don't you know that that company who did
all of that for this case would have found out for Roger -- for
William Bodziak how many vehicles they've put on the road with
axle widths the same?  He never checked with Budget.  They rent
trucks.  He never checked with Penske.  They rent yellow
trucks.  He never checked with -- I'm sorry -- I've forgotten
the other one, but he never checked with anybody -- anybody --
to find out how many are on the road with that axle width.
         Now, Mr. Mackey said a little while ago about the
storage sheds and the lack of ammonium nitrate that if you will
recall, the person from the -- from the ammonium nitrate sales
said they were on a pallet wrapped in plastic and that's why
there is no ammonium nitrate prills on the bottom of the bag or
poured out of the broken bags in the storage sheds in Kansas.
         Did William Bodziak tell you, did he testify, about
the tracks that most certainly would have been left by the
large vehicle that would have had to pick up a 2,000-pound
pallet of ammonium nitrate and put it in the back of a Ryder
truck?  No, he didn't.
         Now, assuming that somebody picked up that 2,000-pound
pallet of ammonium nitrate all by himself and put it in there,
in that truck, without breaking open the plastic, I guess that
makes sense; but it doesn't make sense, ladies and gentlemen,
because there is no Hercules in this case.  Something had to
pick that pallet up, or somebody had to break that plastic open
and move those bags.  If they moved the bags, the ammonium
nitrate would have fallen off onto the floor and they'd have
found it; but they didn't.
         Now, I guess they can come back in a minute and say
these guys are so smart that they swept out the storage units,
cleaned it all up, did some forensic testing to make sure that
there was no PETN, EGDN or any other type of explosive residue
left before they shut the door and drove off.
         Logic, ladies and gentlemen.  It doesn't make sense.
It's not right.
         William Bodziak didn't tell you about Tim McVeigh's
car, did he?  You know he looked.  You know he tried.  You know
they looked everywhere that they could to find a tire track
that matched Tim McVeigh's Mercury Marquis.  There is no
evidence that Tim McVeigh left a tire track in Oklahoma City;
in Herington, Kansas, or Junction City, Kansas, any of the
other storage sheds, or anywhere.
         There is no evidence offered to you by William Bodziak
that Terry Nichols' truck left a tire track in Oklahoma City;
Herington, Kansas; Junction City, Kansas, or anywhere else.
         How about the place where Terry Nichols lived on the
Donahue farm?  Don't you know that William Bodziak tried to
find a track at the Donahue farm to link Tim McVeigh as to
having been there?  He must not have found one, because he
didn't tell you about it.
         Mr. Cadigan:  Special Agent Cadigan came and testified
to you about some tests he did on the lock that was seized at
some time by Sheriff Davies.  He did some testing.  I have to
give him that.  He did a little research.  I'll have to give
him that.  But do you recall the picture -- do you recall the
best picture that he brought for you to look at?
         Do you recall the inconsistencies in the best picture
that he brought for you to look at of the testing that he did
on the tool mark and the lock?
         Now, I think it's fair to discuss for just a moment --
if I don't step on Mr. Jones and his close -- but I think it's
fair to discuss for just a moment Sheriff Davies and what he
did and what he didn't do.  Sheriff Davies, the sheriff of
Marion County, went out to the site of this burglary and he saw
some tire tracks.  He didn't even do as much as Mr. Bodziak
did.  He just looked at them, didn't try to measure them.  He
didn't go around to the back side of the Marion County quarry,
where we know that there is open access, where he thought the
burglar had entered.  He drove around there, but he drove right
over any tire tracks that were there.  He made no effort.  He
did not try to get any evidence in the back of the Marion
County quarry.
         He went back around.  He took the -- he didn't take
the lock that day because he didn't know about it, but he
picked up some other evidence, may have taken a photograph or
two, and left.  He didn't talk to one of the suspects that he
had.
         Now, to be fair to Sheriff Davies, he may have been
able to exclude the employees who were disgruntled by their
prior employment problems.  There is no excuse.  He could not
exclude the person who had threatened to blow up a hospital in
his county.  There is no excuse for not trying to interview
that person.  There is no excuse for not checking into the
background of that individual.  There is no excuse for taking
the evidence, putting it in a locker where you can't find it
later, and doing nothing else, especially when you have an
eyewitness, especially when you have a person who told you that
he saw a vehicle with lights so bright they appeared to be the
type of lights on the top of a roll bar.  There is no excuse
for not taking the time, the minimal amount of time, to find
out if the person who threatened to blow up the hospital drove
a vehicle with a roll bar and lights.
         That roll bar and those lights are a little important
in this case, ladies and gentlemen.  Do you recall the
photograph of Terry Nichols' truck?  There is no role bar and
there is no lights.
         Do you recall the photograph of Timothy McVeigh's
Mercury Marquis?  There is no roll bar and there is no lights.
         Now we get back to the tool marks.  The FBI shows up
to Sheriff Davies and says, We understand that the quarry was
burglarized; give us the evidence.
         Well, give me a little while, I lost it; but when I
find it, you can have it.
         And you know that when the FBI looked at his report
and found that he did not write a supplement about the day he
went back, October 5, 1994, and seized the lock, don't you know
their hearts fell out?  You haven't documented, sir, Sheriff
Davies, the fact that you seized this lock.  How do we know
that you did?  What are we going to do about this?
         That's okay.  I'll write a supplement today.  And you
know that's what happened because it's dated the day the FBI
came to interview him.
         I don't know when he seized that lock, but now we know
it was sometime between October 3, 1994, and April 21, 1995.
         Well, they take the lock, they give it to Mr. Cadigan
to do some testing.  Why do you suppose Mr. Cadigan had to do
three test impressions before he got this one that he was happy
with?  Is it because the other two didn't match up?  We will
never know, because Mr. Cadigan did not bring the photographs
of the other test impressions for you to look at.  We will
never know why he felt the need to take three test impressions;
but what we do know is even with the inconsistencies in this
photograph, this was the best one.  What we do know is that the
lock that he examined had two holes in it, this deep one and
what he called a shallow impression.
         The shallow impression was the impression that he
could not match up with either of the drill bits that he felt
made that hole.  The shallow impression was the one that he
couldn't match up to any drill bit relevant to this case.  The
shallow impression is an oddity, is it not?  The shallow
impression leads you to believe, must make you wonder, how did
Mr. Cadigan get where he is in this case?  How long did it take
him to do this work that doesn't match?  Why didn't Mr. Cadigan
find out if there were other bits that could have matched
this -- this piece of evidence?
         What you do know about drill bits, I didn't know; but
I found out in this case that they're made on a tool and die.
They make millions at a time, and they're all made the same.
They come off that machine, that computer-operated machine,
exactly the same, as if they were cloned.
         Now, Mr. Cadigan told you that they're ground, and
that gives them the individual characteristics that we need to
look for in a drill bit.  They're all ground on the same
grinder.  He made no effort -- he made no effort to exclude any
other drill.
         Ladies and gentlemen, the actions of the FBI lab in
this case constitute the rush to judgment that Mr. Nigh was
talking to you about a moment ago.  They made up their minds on
April 19 that this was an ammonium nitrate and fuel oil bomb,
yet they have no fuel oil to show you, they have no
nitromethane to show you, and they have no forensic evidence to
show you that it was.  But they decided that before they did
the testing; and you know that they did, because if you will
recall the memorandum that Dr. Whitehurst wrote though Steven
Burmeister on May 8, 1995, when he told him he could look for
ammonium nitrate prills in the building, that was before he had
tested Q507.  They decided early on what they were going to do,
and they made the evidence fit their theory.
         The lab is adrift without a rudder and without a sail.
Can you imagine going to the doctor feeling that you have a
heart problem and he does a blood test and says, You've got
some cholesterol, but I didn't find out how much.  I'm not
really sure if my machine was clean.  Let's go ahead and open
you up and do a bypass.  Would you hesitate for just a moment
before you let the doctor cut you open with that advice?  I
suggest that you would.
         Thank you.
         THE COURT:  Mr. Jones.
         MR. JONES:  Thank you, your Honor.
                       CLOSING ARGUMENT
         MR. JONES:  Ladies and gentlemen of the jury,
Mr. Mackey invited me to evaluate with you my view of the Daryl
Bridges Spotlight debit card and suggested that I had not met
Mr. Dexter.  Actually, I'm quite well acquainted with him and
his work; but the reason that I say that it's not very helpful
in this case is for the reason that I gave you when I first
spoke with you, and that is we don't know who used the card.
         Now, clearly, we know when the card was used by some
people, at least by a process of elimination.  But when you
look at these debit card records and you remember the
testimony, there is a suggestion that there are at least two
other people that used the debit card or at least know its
number, because you'll recall the coupon book was found at
James Nichols' house in Michigan; and you will recall that
there are a large number of telephone calls -- and you will see
them -- to the Philippines.
         Now, clearly some of those calls could have been made
by Mr. Nichols to his wife during her visit to the Philippines;
but what about the calls to the Philippines that are not made
while she is there, while she's in the United States?  Well,
presumably she's making them.  But it doesn't make any
difference whether there are any calls to anyplace, because you
know from your own experience the degree of ease with which
people can get access to a telephone debit card or credit card.
All you have to do is have the number and you can get the
number by legal means, or illegal means.
         Terry Nichols had a former wife and a son who lived in
Las Vegas.  He has a present wife who lived here and traveled
to the Philippines.  He had a brother in Kansas -- in Michigan.
Any of these people in the logical and ordinary course of their
lives, given their closeness and traveling, would have had
access to these cards.
         The card was obtained itself long before the
Government alleges the conspiracy commenced in the fall of
1994.  This card was obtained way back in 1993.  So clearly, it
wasn't obtained to assist in the conspiracy; and yes, the
Government can show numerous phone calls to all kinds of
companies which may or may not sell nitromethane or may or may
not sell ammonium nitrate; and how absurd to suggest that you
might call a hobby shop to buy nitromethane to go in a bomb.
Those of us that have model railroads or have been in hobby
shops or fly planes know the quantity of nitromethane that's
sold in hobby shops.
         Many of these people who received the phone calls --
in fact, most of them -- did not testify, so presumably they
have no memory of it.  And had there been a completed
transaction, you would have seen that.
         So in the final analysis, while the calls have some
utility, they by no means go beyond suspicion and conjecture.
But there is one thing insofar as my client is concerned that
the Government itself proved.  You will remember that according
to the Government's evidence -- and I believe it's in a
letter -- Mr. McVeigh told his sister to use quarters; and the
Fortiers testified that Mr. McVeigh told them to use quarters.
         So the suggestion that I put to you is -- is that
whoever is using this card -- and while I'm perfectly willing
to concede that perhaps you might agree that Mr. McVeigh used
it -- there is an abundance of evidence that others used it or
could have used it and that Mr. McVeigh, when he was talking
with people on how to make phone calls and get in touch with
them, suggested they carry a roll of quarters.  But I don't
mean to neglect the Spotlight debit card in its entirety,
because I think it does have some possible relevance.
         But I want to move instead to the heart of darkness,
to the events in Junction City, Kansas, because the key to this
case is in Junction City.
         Timothy McVeigh arrived in Junction City on Friday.
He took his old car that he had gotten after this accident,
which Mr. Fortier is mistaken about.  It didn't happen in
Kansas.  You know it happened in Michigan.  And he went in to
Tom Manning.  And Tom Manning had an old roachmobile or clunker
or junker sitting there that he had paid somebody for, and he
sold it to Tim McVeigh.  You heard his deposition.  This is a
car that when he sold it to him, he also had to sell him
several cans of transmission fluid.
         I thought he testified, or I remember that the fuel
gauge was on empty permanently, but you'll remember that.  If
I'm mistaken, please overlook it.
         This is a car that either had 97,000 miles on it or
197-, or 297-, depending on how many times the odometer had
turned over.
         Now, Mr. Manning called it a roachmobile.  That's a
pretty accurate description; but there is two things to
remember about this car and this transaction.
         You see, if the Government's theory was that, well,
we've got a half a dozen people or more than that building a
bomb and Tim McVeigh is one of the conspirators and his role is
not big but he was involved, he did some things, that would be
one thing.  You might be able to square the car with that
theory.
         But that isn't the Government's theory.  Their theory
is Tim McVeigh and Terry Nichols alone, and mostly Tim McVeigh.
         Well, I presume there is a reason why they chose that
theory, and I presume it's because they didn't have evidence
that Tim McVeigh was with a whole bunch of other people.  They
only had evidence of Tim McVeigh and Terry Nichols, so let's
ride that horse.
         Tim McVeigh has left Kingman and has come to Kansas,
to Junction City, close by where his friend Terry Nichols
lives, a man he was in the service with, a man that he's
visiting his house, so naturally his fingerprints are going to
be there, and a man that he has some shared political
philosophies with, but also a man that he hadn't seen for
several months.  And he comes into town and the car that he got
before to replace his little, old car -- you remember that
that's the car that carried a thousand pounds of explosives.
And you saw the picture of that car.  And that car could carry
a thousand pounds of explosives in the same way that the weight
limit on Terry Nichols' truck could carry 2,000 pounds of
ammonium nitrate.
         But the car gives out.  Now, you know, if you're
planning to blow up a building and April 19 is the important
day and you've got all this work done, that's just mighty
inconvenient and poor planning.  I mean after all, you've spent
according to the Government $5,000, or close to it, on just
getting this stuff ready, and you've driven back and forth
across the country, you've incurred this robbery in Arkansas,
you've been out there in Arizona, and so you're getting all
your ducks in a row to commit this monstrous claim of
revolutionary violence, and your car gives out.
         So you go in to somebody that you know and you buy a
car.  Now, presumably, you want to get away from this bomb
that's going to go off, that's going to kill all these people,
so you want a car that will get you away from it; and so your
escape vehicle, the car that's going to get to Oklahoma City
and then get back someplace -- and according to Michael
Fortier, perhaps as far as the desert -- has 97,000, 197-,
297-, poor transmission, perhaps a broken fuel gauge, not very
dependable transportation for a getaway car.
         Now -- but there is something else that happens while
he's there; and that, according to the Government, is a phone
call is placed to Elliott's Body Shop.  Now, Mr. Nigh has
already told you and you've heard through cross-examination
that Mr. Manning was interviewed eleven times, eight times by
the Government, twice by us, and once by Mr. Terry Nichols'
lawyers' investigator; and he never mentioned that Tim McVeigh
left.
         Well, he said, Well, I wasn't asked.  Well, what kind
of answer is that?  Here the FBI is in Junction City, there are
100-some-odd people dead in Oklahoma City, you've got all of
this grief and destruction, and he's playing cat and mouse?
I'm not going to answer the question or give you any
information until you ask me the specific question?  That's
absurd.
         The reason that Tim McVeigh didn't leave and he didn't
remember it is because he didn't leave.  And as Mr. Nigh showed
you, the time that Mr. Manning says that he left when they were
working on the car, the man working on the car said Tim McVeigh
was right there.
         And Mr. Mackey's sleight of hand that the call to
Elliott's was made about 10:00 -- if these records that
Mr. Dexter put together are correct, it wasn't made about
10:00; it was made at 9:53.
         Now, Vicki Beemer thinks it came in at 10:30, but
let's go with Mr. Dexter.  Let's say it came in at 9:53.  But
Mr. Manning told you Mr. McVeigh was gone 10 to 15 minutes, and
he said he couldn't give an exact time; but that's the
Government's problem, not mine.  But when asked what's the best
he could estimate when he returned, he said 10:15 to 10:20.
That would have meant that Mr. McVeigh did not leave, assuming
he ever left, until after the phone call was made.
         You say, well, it's approximate.  Of course it's
approximate.  I understand that.  But for 11 interviews, it
didn't even exist.
         And then there is the whole issue about whose call is
this?  Well, the computer had a glitch; but nevertheless, we
think it was charged to the Daryl Bridges debit card, because
just a few minutes before, a phone call was made to Terry
Nichols' house which was charged to the Daryl Bridges' debit
card.
         All right.  Let's accept that for a moment.  What they
are asking you to do is convict a man of mass murder, of more
murders than committed by John Graham, Ted Bundy, Charles
Whitten from the University of Texas tower, and Richard Speck
in Chicago, in part on the testimony of somebody that's not
precise about the time.  And the best that he can give under
oath has the man leaving after the call is completed, after
saying 11 times and not mentioning that he left at all.
         I don't think that's what the Court means when it
talks about reasonable doubt in the instructions.
         But let's go on.  Tim McVeigh gets in the Mercury and
leaves, and he goes down and checks into the Dreamland Motel.
And what does he do there?  He registers under his own name.
And what does he put down as his address?  James Nichols' farm
in Michigan.
         Now, this is a man clever enough, smart enough,
intelligent enough, to somehow or the other take a book that
talks about putting ammonium nitrate in a coffee can and
putting it in the oven and extrapolate from that this deadly
terrorist device but isn't smart enough to have made
arrangement to use somebody's name other than his own.
         And clearly, Mr. McVeigh knows how to use an alias.
There isn't any dispute about that.  I concede that.  He's used
every alias you can think of; so why didn't he use an alias
when he was checking into the motel; or if he wanted to use his
own name, why involve James Nichols?  It doesn't make sense.
         And then we have this telephone call to the Chinese
restaurant.  Now we get closer to the heart of darkness.
First, there is a trip that somebody makes to Elliott's on
Saturday morning, a trip that when Mr. Elliott was first
interviewed by the FBI, he didn't even mention, although that
was clearly his longest contact with Kling.  And I'm not going
to repeat what Mr. Nigh said about the descriptions and how
they evolved.  I want to concentrate on common sense.
         Kling pays for the Ryder truck.  He comes again on
Monday, and clearly, there are two of them.  Clearly, there
are, unless these three people are so mistaken that there was
one of them and they have confused a transaction at 4:30 on
Monday with a transaction at 4:30 on Tuesday, in which case no
credibility can be given to their testimony.  None.  If you are
mistaken about the number of people present, how can you rely
on a description of somebody that you claim was there?  It's
kind of like Eric McGown, you know:  Eric McGown, whose hobby
is cars, is quite positive that Mr. McVeigh's vehicle wasn't
there after Easter Sunday, but he can't tell you when this big
Ryder truck was there.
         But let's go back to Elliott's.  Kling comes on
Saturday morning.  Now, if Kling is Tim McVeigh, he goes back
to the motel; and before the sun has set, he picks up the phone
and calls the Chinese restaurant and orders Chinese food in the
name of Kling.
         Why would he do that?  Why go to the trouble of having
an alias?  How can you register and be McVeigh, go up the hill,
use Kling as the alias, come back down the hill, and bring
Kling home to you?  If you're going to do that, why use Kling
at all?  Why not be McVeigh in the motel, McVeigh at Elliott's,
and McVeigh at the Hunam Palace?
         Well, of course, if it's McVeigh, you wouldn't do
that.  If it's the bomber, you wouldn't do that, because you
don't want people to know who you are.  You use an alias so
that people will not know who you are.
         Tim McVeigh didn't make the call to Hunam's; and how
do you know that?  You know that because, first of all, it
defies logic; but there is another clue.  We have Jeff Davis.
Now, despite all the efforts and the numerous interviews with
Jeff Davis, Jeff Davis simply will not say the man was McVeigh,
but he will give a description close to McVeigh.  Not exact,
but close.  A description at Elliott's that is not exact but
close.  And when Jeff Davis pulls up there on only his second
run of the evening to a motel that he only makes about one call
a month, Mr. McVeigh's car is not there.  The door is open, and
he is greeted at the door.
         Mr. McVeigh's car is not there.  It is not Tim
McVeigh.  The door is open, and the man's name is Kling.
         On Sunday, Terry Nichols, according to the Government,
receives a phone call shortly after 3:00.  I do not know,
because the evidence does not show, whether this call is
malignant or benign.  The Government's theory is that the call
is malignant; that Nichols is to leave his house, meet McVeigh,
drive McVeigh's car to Oklahoma City, and then Nichols will
pick him up and bring him back.  That was the testimony of
Larry Mackey.  Unfortunately, that's not the evidence from the
witness stand.
         There is no evidence who made the call, only that if
the card is right, that it came in Herington.
         Well, why would McVeigh drive to Herington and then
drive back to Junction City?  Because clearly, he was in
Junction City.  Nancy Kindle's testimony is uncontradicted.
She saw him for Easter lunch, he spelled his name, she got a
table for him, she thought he was with two other people, and
she saw him again, because he was kind of cute, at 4:30 in the
afternoon.  There is no reason to drive back.
         And you cannot get from Junction City to Oklahoma
City, according to the FBI, unless it takes five hours; and if
he was there at 4:30, he couldn't be in Oklahoma City at 8:20.
         It's also entirely possible that Terry Nichols wasn't
in Oklahoma City.  After all, what is the proof?  The proof is
that there is an automobile -- and I can't remember whether it
resembles one of 25,000 or one of 71,000 -- that happened to be
photographed going by the Regency Tower -- I think it's at 8:20
on Sunday afternoon.  That's no evidence that that's Terry
Nichols' car.  They don't even know it's the same color.  They
only know it's dark.
         This is speculation and inference piled upon inference
and trying to put an 11-1/2-size foot in an 8-1/2-size shoe.
         There is the question of the storage -- not storage
unit, I'll get to that in a minute -- the fuel.
         Marife says, Well, we went into town Saturday
afternoon and we bought this fuel.  And the inference is that
Marife is right because, first of all, it doesn't hold that
much fuel as was bought on Sunday.  And why would you buy fuel
again on Sunday?
         Well, with all due respect to Ms. Nichols, there are
two other people that tell a different story.  And you know,
I'm kind of curious as to why it was necessary to use milk
cartons or whatever was used to pour this gasoline into this
truck in order to make this demonstration and fill it with 10
gallons and drive supposedly 5 miles to a gas station.  I mean
what kind of scientific measurement is that?  These figures are
close enough for a tank on empty.  Fuel expands and contracts.
Let's be serious here.  We've all had experience with trying to
fill our tank.  They're almost precisely on point.  But more
importantly, we're talking about a small town where a customer
trades regularly and a woman is pretty sure -- and then she
says, No, I'm positive; I saw him there on Easter Sunday at
5:00, or thereabouts.
         Well, I wish she were here, but she gave birth and she
couldn't; but you have the stipulation of what she would
testify to, and then you have the other stipulation of
testimony, and then you have Marife.
         Well, clearly one of them is mistaken; but how certain
are you which one?  You cannot be certain.  And that is the
reason we say that there is a reasonable doubt in this case as
to Mr. McVeigh's guilt.
         But let's go back for a moment.  Let's go now to
Monday, the crucial event.  There are three people at Elliott's
when Kling arrives.  One did not recall or remember who it was.
And you know that's probably the most honest testimony, really,
when you think about it.  That's probably pretty accurate.
         The second one wasn't called by the Government,
although that's the person they used to make the sketch from;
and then we have Mr. Elliott.
         But something else happened, and that's the taxi ride
up to the McDonald's.  There again, we have conjecture upon
conjecture.  Because Mr. McVeigh's car was not at the
Dreamland, we say, the Government says, Then he had to take a
taxi.  Well, it would seem to me easy enough to call a taxi
driver.  You know, that's kind of like that receipt.  That
2,000-pound transaction according to -- I believe it was
Mr. Mendeloff that introduced that -- was the largest single
transaction in that co-op.  I don't doubt it.  That's what the
records say.  In fact, there were two of them within three
weeks.
         Well, if it was so large and so unusual -- and of
course, it is large and it is unusual -- then where is the
salesman that handled that transaction?  Well, the Government
didn't call him.
         Where is the salesman that handled the one in
mid-October?  The Government didn't call him.
         Instead, they called the finance manager or
comptroller, whatever the gentleman's title was, simply to
introduce the records.
         Well, I remember my largest client.  I don't have any
trouble remembering him.  In 30 years, if it was 15 years ago,
surely, I can remember him.  I can remember what he looks like
and what I did for him.
         The natural inference is that Mr. Fortier,
notwithstanding and the fingerprints -- which incidentally are
found on the back of the receipt as though somebody might have
been, you know, rumbling around in a desk.  Remember Michael
Fortier said one time he saw Tim McVeigh kind of rummaging
through his desk?  The clear inference is that that person also
cannot identify Tim McVeigh as the person that purchased the
ammonium nitrate with whoever was there, which presumably was
Terry Nichols because the receipt is at his house.
         And so it's the same thing with the taxi driver.  Now,
I recognize that taxi drivers don't remember every fare, but
we're not talking about coming back to some taxi driver six
months later.  You know, Mr. Tipton, when they went to him six
months later -- well, actually longer than that.  It was after
he met with Mr. Mendeloff he became 90 percent certain.  But
here's a taxi driver who presumably is somewhat on notice about
who his passengers are, if for no other reason to be sure that
somebody is not going to knock him over the head, and they
don't call him.
         And the natural inference for that is he can't put Tim
McVeigh in his taxicab.  They said Mr. Jones didn't call him.
Of course I didn't.  I don't know who was in the taxicab.  I
don't know who it was.
         There is a pay phone near the Dreamland.  Well, how
many pay phones are there near the Dreamland?  And again, if
it's Mr. McVeigh, it's kind of like, Well, the reason he didn't
shoot Charlie Hanger is because there is a video on his car.
Well, where is the proof that Tim McVeigh knew there was a
video on Mr. Hanger's car.  There isn't any, except
Mr. Mackey's testimony.  That's pure conjecture.
         Everything in Junction City is conjecture; but this,
there can be no dispute about:  Tim McVeigh was in McDonald's.
You saw him.  I saw him.  And as Mr. Mackey said, I'm the one
that pointed it out.  You're sure that's McVeigh?  Yes.
         Now, Elliott's up the road; and I suspect you can make
it in 20 minutes, if you walk, kind of going uphill.  And I
imagine if you kind of walk briskly or moderately, you can make
it -- in a light rain; when you show up and you're wet -- but
nobody remembers it that you were wet.  But back in the
beginning, before Mr. McVeigh was arrested and before the court
of public opinion and Time magazine and everybody else
pronounced him guilty, the transaction was remembered slightly,
but importantly, differently.
         First of all, when they got the phone call at
Elliott's, they weren't supposed to talk to anybody.  Now, that
stands to reason.  They were to wait for Mr. Crabtree.  So
naturally what they did was talk among themselves.
         And therein was the confusion.  By the time Scott
Crabtree got there, the identification of Mr. Kling, Bob Kling,
or Robert Kling, or the customer, was already a Typhoid Mary.
         No matter how you change it, explain it, shape it, the
description has evolved overtime until it is Tim McVeigh.
         Why -- and I hope Mr. Mendeloff is not going to answer
this question when I don't have the chance to reply, since
we've had a four-week trial -- why, if Mr. Elliott was so sure,
was he not taken to the lineup in Oklahoma City?  None of those
witnesses testified in this case, so it must not have been a
very productive lineup.  Were they concerned that having
arrested an individual, the Attorney General of the United
States having announced the person had been arrested, Time
magazine and Newsweek and The New York Times already at press,
that Mr. Elliott would say, like Jeff Davis, Well, it looks
like him but it's not him?
         No.  54 days passed, 54 days before Mr. Elliott was
asked to make his identification.  And you know, that's another
thing.  I think it was the Government that brought out that he
had seen Mr. McVeigh on television on the Noble County
walk-out.  And did he pick up the phone call -- phone and call
the FBI and say, Boy, that's him?  No, sir.
         When Mr. Tipton became aware that Mr. McVeigh was a
suspect and been arrested, did he pick up the phone and call
the FBI and say, That's him?  No, sir.  No, ma'am.
         And the reason they didn't is they were not positive.
No more mind games of 90 percent certain or 8 out of 10.  If
you, if any one of you, had had a business arrangement, an
inquiry about something that was suspicious involving a major
crime and the person that you believed you had dealt with was
shown walking out of a courthouse surrounded by FBI agents, you
would have picked up the phone and called the FBI.  And so
would Eldon Elliott, this good small town businessman.  And so
would Mr. Tipton.  But they didn't.  And the reason they didn't
is because they were not positive.  They were not sure.  They
were not certain.
         So who was at Elliott's?  Well, there are two
possibilities aside from the one the Government gives you.  The
first and probably most logical explanation is simply that they
have confused Hertig and Bunting with whoever was there on
Monday, who could or could not have resembled Tim McVeigh.  And
the reason I say it could be Hertig and Bunting is there is an
amazing resemblance between the circumstances of that and the
one on Monday, although they're not perfect.  There is no
evidence Kessinger was in the room on Tuesday.  Doesn't mean he
wasn't, but this is no evidence of that.  Eldon Elliott says
the place was crowded, and it's quite clear that it wasn't
crowded on Monday but it was crowded on Tuesday.  I believe
Ms. Beemer thought that John Doe 2 smoked, and Bunting smokes.
But on the other hand, Vicki Beemer says that she knows Michael
Hertig and it's not Michael Hertig.  And she says that's not
the cap.  And you know, you have to give some credit to that.
         But let's remember that the person that they relied
upon was not Vicki Beemer; it was Tom Kessinger.  That's who
drew the sketch or helped him draw the sketch.  And the
description he gave of the acne-faced individual is clearly not
Tim McVeigh.  And no matter what they may have measured out at
Englewood, we know that when Mr. McVeigh checked into the Noble
County Jail by Trooper Hanger that on the mark he was 6' 4" --
and sure, allowing an inch or so for the camera angle; but he's
still a tall individual.
         So it may simply be that there is no known description
of Kling and that Kessinger infected the process for some
reason or other and the FBI has found or learned something
about him or no longer accepts his credibility or whatever the
reason may be, but he did talk to Beemer and Elliott, and the
Government did rely upon his sketch.
         Mr. Elliott was so confused that he couldn't remember
whether the man had a beard or not.  But with that sketch, they
went around town and they found the Dreamland Motel, where
Mr. McVeigh was registered.  And clearly, Mr. McVeigh bears
some resemblance to the sketch.  I don't dispute that.
         But I suspect a lot of other young military men in
Fort Riley match that sketch; and clearly, in at least three
areas, Sergeant Hertig matches it.
         And also, it's clear that Todd Bunting bears some
resemblance to John Doe 2.  So what are we left with?  They
were right about McVeigh but wrong about Doe 2?  Or were they
wrong about both?
         Again, you cannot have safety in it.  It is not the
type of thing you would rely upon in your ordinary affairs.
There is even confusion over what he was wearing.
         Well, Mr. Elliott said that possibly he had fatigues.
I don't know how many times the Government can use the
adjective "possibly" and still maintain they've proven a case
beyond a reasonable doubt.  To me, that's a contradiction in
terms, "possibly" and "proved beyond a reasonable doubt."
         But what would be your experience?  If 75 percent of
your customers are military -- and let's accept that figure,
and let's further accept the implication there that they wear
camouflage fatigues -- then wouldn't you more likely remember
the military customer that wasn't in camouflage fatigues?
That's what you would remember, the person that came in and
said he was military and wasn't dressed in camouflage fatigues.
And clearly, clearly, Mr. McVeigh in that photograph is not in
military uniform of any type.
         So if it's him, not only does he have to hustle up
that hill but somewhere along the road he has to step behind a
bush and pick up and change clothes; and since he doesn't know
the McDonald's video camera is running, according to the
Government, why would he change clothes to begin with?
         Mr. Nigh was closer on the point:  They made a rush to
judgment.  It looked good when they got him; but the more they
looked at it, the more they interviewed, it didn't come
together.  The phone records didn't come together, the
identification didn't come together, the science didn't come
together, the known facts didn't fit the theory.
         Clearly, they fit them in part.  Of course they did.
         And then there is the key.  Now, the more logical
explanation is that Michael Fortier just simply lied and he
knew the key had been found there and he made up a story that
he parked the car there.  I've always been amazed at how well
Mr. Fortier can remember everything in this 200 hours of
preparation that he had and conversations and interviews but
somehow or the other can't remember how to get into downtown
Oklahoma City off I-35.  Maybe that's because you can't do it.
Maybe it's because he didn't go into downtown Oklahoma City.

         Well, the more logical explanation, aside from he made
it up, is simply that in the force of the explosion, the key is
blown and it lands there.
         The Government may say that we're putting the FBI on
trial.  We're not doing that.  Long before we ever
cross-examined the first FBI witness, Mr. Hartzler himself said
none of the people who have been criticized for their work at
the FBI Laboratory will be witnesses in this case.  They
brought that issue up first, not me, although that is kind of
interesting:  Why wouldn't they call them?  What were they
criticized for?  What was messed up so badly that they couldn't
be called?
         But it's a fair question to ask.
         And then we come to Daina Bradley; and Mr. Mackey
asked to you listen carefully to how I discuss the credibility
of Daina Bradley and to compare Daina Bradley to Eldon Elliott.
I'll be happy to do that.
         Of course Daina Bradley went through a traumatic
experience.  And I can assure you that if there is -- and your
common sense tells you that if there is one thing that no
victim wants to do in this case and no one from Oklahoma City
wants to do, it's testify for the defense.  I mean, just to
contemplate that is mind-boggling.  But before she testified
for the defense, when she was being interviewed by the FBI on
several occasions, once I think by us and once by a television
station in Oklahoma City -- let's just talk about her FBI
statements.  They were consistent.
         The fact that this lady has had a terrible life does
not mean that her memory is fallible.  After all, when they
first interviewed her, her story was consistent.  It was only
after we subpoenaed her that it began to modify itself.
         I wasn't in her hospital room when the FBI interviewed
her.  I don't know any reason she would have to lie.  So was
she just honestly mistaken?  Well, why?
         But you know, it is curious that her description of
the man that got out of the Ryder truck pretty much matches the
description of the second person in Junction City.
         It is clearly something to be weighed carefully,
because there is no other witness that the Government can call
from Oklahoma City.  There is no witness that saw Tim McVeigh
in a Ryder truck other than Eric McGown; and although he now
says he wasn't sure whether it was Sunday or Monday, for two
years, he was sure it was Sunday.
         There is no witness that saw Tim McVeigh building a
bomb; and as Mr. Tritico said, how can one person build a bomb?
Well, sure, Linda Jones is right:  I suppose one person could
do it.  After all, if you put an infinite number of monkeys at
an infinite number of typewriters, one of them will type out
the complete works of William Shakespeare eventually.
         But how reasonable is it?  I mean, if this is all
stored in these units -- and I recognize they're in sacks.  But
there is no fingerprints of Tim McVeigh in these units.  There
is no explosive residue in these units.  And all of this stuff
that I guess the Government is trying to claim that
Mr. Nichols -- and I suppose Mr. McVeigh -- stole from the
quarry, they find at Terry Nichols' house.
         And as far as Mr. McVeigh selling these blasting caps,
I think they were -- Kevin Nicholas said that.  I don't deny
that.  But it's a long way from selling blasting caps without a
license, or even nighttime burglary, to mass murder.
         So if all of this stuff from the quarry was placed in
these storage sheds, these people are so clever that they can
disguise that and yet walk up to Elliott's without a disguise
and call a Chinese restaurant and use their name?  And where
did they build this bomb?  Where did McVeigh wash up?  He
checked out of the motel on Tuesday morning, and there is no
evidence he was at Terry Nichols' house.
         And Mr. Tritico, I think, has outlined to you our
position on that.  Where did he do this?  Where can I park a
Ryder truck and build a bomb?  You can't do it in these storage
sheds.  It's toxic.  Linda Jones told you that.
         There is no evidence of a house or barn or a field
anywhere in the Junction -- anywhere in the United States.
There is no one that saw him build it.  There is no one that
saw him drive it to Oklahoma City, and there is no one that saw
him in Oklahoma City.  And I assure you if there were, the
Government would have them on the stand.
         The closest that can be said is Charlie Hanger.
Mr. Hanger said -- and he's a good professional highway
patrolman and certainly known to Ms. Ramsey and myself -- that
if you left the Murrah Building at 9:02 and you drove at the
top of the speed limit, you would be right there where I
stopped him.  Now, I don't doubt that.  I haven't checked it
myself, but if that's what Charlie says, I'll accept his word.
         Except, of course, according to the Government's
theory, that's not quite what happened.  Mr. McVeigh has to
park this truck, somehow or the other detonate this bomb; and
if it's something that he lights and is supposed to burn
through -- and you heard the testimony about how the cord has
got to be straight -- where is the car?  They have a sign, "Do
not tow."  They've turned Oklahoma City up fair thee well to
try to find that car.
         And this is not a car that you forget.  Look at that
primer spot.  This is an old clunker that in the circumstances
of this case, particularly as Mr. Mackey said, you got
everybody going to the Murrah Building and one person heading
away.  If any witness had seen that car, he or she would have
testified.
         So if you accept Charlie -- or Mr. Hanger's
explanation of the time, there isn't enough time, because if
it's Mr. McVeigh, he has to get from the truck to wherever the
car is.  And we don't know where the car is.  Michael Fortier
didn't know.  He just had one of several stories that he spun
out.
         The more logical explanation is to rely on our common
sense, instead of this convicted felon with an excuse to lie,
who according to him has already lied; that it isn't there.
         So Mr. Hanger takes him into custody to go down to the
jail; and the rest of it, you know.
         Well, clearly, someone bombed the Murrah Building.
         And the last part that Mr. Mackey brought to you was
the handwriting.  Well, I appreciate being reminded about what
I said in my opening statement, so turnaround is fair play.
I'll remind Mr. Mackey what Mr. Hartzler said.  Mr. Hartzler
told you that with the assistance of a document examiner who
will testify for you, you will look closely at those Ryder
rental documents and together in the courtroom we will compare
the documents and other documents.
         Well, I didn't hear the document examiner.  There
wasn't a document examiner.  There wasn't even anybody to
authenticate "David Darlak."
         Mr. Mackey has many talents.  I admire and respect
him.  I don't think he's a document examiner.  And I can't
cross-examine his closing argument.
         Now, I could put all these charts up here that we've
made and impress, and we could have a battle of the artists.
I'm not interested in that.  If you want to compare, first
thing you ask yourself is, Well, where was that document
examiner?  But go ahead, if you want to do that in the jury
room.  Just get those documents out.  And you'll notice that
the person that signed "Robert D. Kling" wasn't even consistent
in the way he signed it.  Within those letters, there are
important differences; and we know, or at least believe, that
one person signed all three of those.
         And then don't just look at the letters they point
out.  Look at the dissimilarities.  Look at the way that Tim
McVeigh (sic) wrote on the line and another time it wasn't
written on the line and one time how there is a curlicue up
here and there is not down here.
         Handwriting is not fingerprints, ladies and gentlemen.
They are not.  You know that and I know that.
         This hocus-pocus about document examiners:  That is
art, and it's not a science.  It's something we lawyers like to
stand up and talk about in closing.  It's like beauty in the
eye of the beholder.  Those of you that see the similarities
will see them; those of you that see the dissimilarities will
see them.
         But the Government failed on that promise.  They did
not bring you the document examiner from the FBI, and I dare
say that you can imagine why.
         So two years after accepting the defense of
Mr. McVeigh's case, I conclude my responsibility and pass it to
you.  But, of course, the Government has the last say, and I
will sit down so they can say it.
         I will not be able to answer their arguments.  I hope
and expect them to be fair and not take advantage of that; but
if they do, then I'll have to ask you to be the advocate for me
for their period of time and think what my response would be.
         Tomorrow, I believe, the Court will charge you and you
will hear the instructions.
         Someone blew up the Murrah Building.  But more likely
than not, several people were involved.  They had skill and
training, and they didn't get it out of some book that talks
about mixing it in an oven.
         Dr. Jordan told you about the heroic efforts -- and
they were that -- of the Oklahoma State Medical Examiner's
office to recover and identify all of those killed.  I do not
think as many years as Dr. Jordan and I have battled each other
across the hills of north, central, and western Oklahoma that
I've ever been more proud of the work that he did than in this
case.  It is a tribute to Oklahoma and the people that helped
him.  And Dr. Marshall, who undoubtedly as Dr. Jordan
acknowledges has to be one of the world's most highly regarded
forensic's pathologists and certainly a man with unhappy
experience on autopsy victims of ammonium nitrate bombs,
recognized that work.
         But as Dr. Jordan said and acknowledged, we have eight
people whose legs were lost -- left legs were lost in the
explosion.  And we have to exclude Ms. Bradley's, of course,
because that's a surgical amputation.  But we have nine left
legs.  Mr. Ryan said, Well, you buried somebody without a leg.
Yes, but it was a right leg.  You can rest assured that
Dr. Clyde Snow and Dr. Jordan know the difference between a
left leg and right leg.
         Well, we think it might be a woman.  It's a small-
bodied person.  Well, that's based upon those charts that
anthropologists use; and it looks like there is no hair on the
leg.  Of course, it's entirely possible it was blasted off; but
I know and I suspect you know military people that shave legs,
too, because of the uniforms they wear.  But that's an
undisputed fact in this case.  There is a ninth left leg.  If
the Government could identify that leg, they would have.
         And in the United States of America in Oklahoma City,
young women do just -- just do not disappear without somebody
asking for them.  And Dr. Marshall is right:  The longer time
passes, the more likely that we know the real reason no one has
stepped forward to identify the person.
         I believe the evidence suggests in this case that the
bomber of the Murrah Building died.  That's certainly the
experience with other terrorists.  It isn't unique here.  If
there were more than one of them in Junction City, then they
are still at large.  But after all of the resources that you
know the Federal Government has committed to this case, they
cannot prove Mr. McVeigh guilty beyond a reasonable doubt.
         And Mr. Mackey is right:  I said the evidence would
show he is innocent.  And I have tried to outline to you today
with my colleagues why I believe the evidence shows he is
innocent.
         I know the Government's theory and I know the facts
that they have presented to you through their witnesses; but I
believe the evidence will show that we have met each one of
those facts and that in the final analysis, our interpretation
is more consistent with logic and common sense and the ultimate
truth.
         And now, as I said, we will be silent and we will
listen to you.
         One time I heard someone say that communism fell not
because of brilliant leadership but because of a Moscow-trained
lawyer, a Polish priest, a shipyard electrician, and a retired
Hollywood actor.  And so it was.  And ultimately, justice will
be done in this case by the men and women from ordinary lives
who have been summoned here and empowered to make the decision.
         Thank you.
         THE COURT:  Members of the jury, we have an
opportunity for the Government to present rebuttal argument.  I
would like with your indulgence to complete the arguments and
go forward with that, even though we're past 5:00.  Fairness
suggests that we get all of the arguments in in one day.
         If any of you would like, we could take a short recess
now and come back, or go forward.  Would you like to have a
short recess?
         JUROR:  Yes.
         THE COURT:  All right.  That's fine.  We'll take about
a 10-minute recess and then resume.
         Now, members of the jury, during the time of this
recess, of course, I must caution you, you haven't heard it
all.  Mostly, you haven't heard the Government's rebuttal of
these arguments, but you haven't heard me about the law.  And
we'll do that tomorrow.  But I'd like to finish the arguments
this afternoon, so we'll take 10 minutes.  Don't talk about the
case.  You're excused.
    (Jury out at 5:12 p.m.)
         THE COURT:  We'll take a 10-minute recess.
    (Recess at 5:12 p.m.)
    (Reconvened at 5:22 p.m.)
         THE COURT:  Be seated, please.
    (Jury in at 5:22 p.m.)
         THE COURT:  Mr. Mendeloff, your rebuttal.
                       CLOSING ARGUMENT
         MR. MENDELOFF:  Your Honor, Counsel, ladies and
gentlemen.  You've been sitting here all day long, listening to
lawyers talk.  It's the worst torture I can imagine.  And not
only that, but it's 5:25 and I'm sure you're all hungry and you
want to go have dinner, so I'm going to try to keep this as
brief as I can and still address the points that I think we
need to visit with.
         The hallmark of our case -- the hallmark of the
Government's case here is the breadth, its depth, that it comes
from lots of different sources, lots of different
interconnected proof:  Eyewitnesses, witnesses from the lab,
people who know Tim McVeigh, people who don't know Tim McVeigh,
people from Junction City, people from other parts of the
country, Charlie Hanger, the Fortiers, witnesses from
everywhere.  They all have one thing in common:  They have
evidence against Tim McVeigh.  Nobody, none of these people in
large part, except for Michael and Lori Fortier -- most of
these people don't know each other.  They have common purpose
here, common impact on this case, and that is the strength of
this case.
         The case makes sense as a unified whole, and that
evidence establishes that the man sitting across the courtroom,
that fresh-faced, young man over there, a mass murderer, killed
168 men, women, and children and tried to kill more, with a
bomb that he let loose in the middle of the day in a busy
downtown city.
         You heard Mr. Jones when he stood up at the beginning
of the statements and tell you that he's an advocate, and he
is; his job is to try to take the position of his client and
make points where he can.  And one thing I ask you to look at:
Notice the kinds of points that he was trying to make, that the
whole defense team was trying to make throughout this trial.
Those points were focused on individual, narrow pieces of
evidence.  Never did you hear any evidence that went to the
broad case, the broader proposition here.  That broader
proposition has been proved not by one witness here, not by one
witness there, not by four or five witnesses, as Mr. Jones
said.  That's wrong.  I take exception with that.  Our evidence
was proved by witnesses from all over, by phone records that
aren't witnesses, that aren't -- don't have any questions of
credibility, by forensic proof.
         And you'll see, as I go through the evidence -- or the
points that I want to make with you today -- and I will try to
not make the same points that have been made already, but
different ones and different glosses as quickly as I can so you
can go have dinner.  The points that I'm going to make -- the
point I'm going to make is that that evidence fits together and
one reinforces the other to show you that this isn't
susceptible to challenge at this point here or at this point
here.
         Let's start with the Noble County Courthouse -- the
Noble County arrest, excuse me, out on the freeway.  Where did
that happen?  Just at the point where you'd expect Mr. McVeigh
to have been if he left Oklahoma City right at the point of the
bombing, which is what the evidence showed he did.  Location,
that's Point No. 1.
         But it goes beyond that, Point No. 2.  What did he
have in his clothing?  The bomb residue that you heard about.
I'll get into that in a minute.
         But Point No. 3, what was in his car?  Was it a
coincidence that the man with the bomb residue on his clothing
had hate literature in his car?
         Let me ask you to discuss with me for a minute the
bomb residue in the clothing.  We've heard lots and lots of
evidence -- lots and lots of arguments, excuse me, about
contamination, contamination of the Noble County Jail, maybe a
lawyer put it into the clothing, maybe an inmate put it into
the clothing, maybe it was contaminated when it was laid on the
freezer, on and on and on.  Then maybe it was contaminated when
it was sent over to the FBI lab.  There's contamination there,
we hear.  Contamination here, contamination there.  The problem
with this problem, with all those arguments with contamination,
is that there's no evidence that this clothing was at all
contaminated, ever.  You heard no proof in this case that there
was any effect on the clothing that is involved in this case.
In fact, Dr. Whitehurst testified -- the man who testified for
the defense, the man who they put a lot of credence in -- he
testified that he knew of no indication that there was any
contamination of this clothing.
         Now, to give you an idea of where we're going and what
I'm talking about, what did we see?  What were the kinds of
arguments we saw about contamination?  They changed as the
question changed, the different -- the focus on the question
changed.  First the argument was, Well, maybe there was
contamination in the jail.  But then of course we heard there
was never any high-explosive case in the jail.  There is no
evidence that there was any high explosives in the jail or that
anybody in the jail had anything to do with high explosives.
The best they could do was that railroad torpedo case, and
we've heard that a railroad torpedo is more like a firecracker.
         Then we get to the FBI lab.  The first argument is
maybe the box, the box was the source of contamination.  The
problem with that is that it was sealed.  And as you heard
Steve Burmeister testify, he tested the box, so that couldn't
be the source of contamination, and on and on and on.
         We heard the argument about the rug, the rug in the
Chemistry and Toxicology Unit.  Maybe that was the source of
the contamination.  And that was a doozie, supposedly this
contamination left the rug, flew through the air, over the
paint files, and into the screwed-top test tube that
Mr. Burmeister said he had the materials in.  Is that credible?
Is that reasonable?  What that is is an attempt to try to
deflect your attention from what the evidence shows.
         The evidence shows that Mr. McVeigh's clothing was
contaminated with -- excuse me, Mr. McVeigh's clothing was
filled with bomb residue.  When the contamination argument
doesn't work, then we hear about the bullets in his pocket.
Maybe if it's not contamination, maybe it's the bullets in his
pocket.  Again, maybe it was the bullets in his pockets.
Again, is there any evidence that the bullets in his pocket
were the source of any kind of PETN in this case?
         You saw that the defense had tremendous resources
going for them.  They had great lawyers.  They had experts
galore.  Anything they needed to prove this case, they had it
at their fingertips.  Did you hear any evidence from the expert
from the defense that the bullets in Mr. McVeigh's pocket had
leaking PETN or had PETN on the outside of them?  What does
that tell you about whether or not those bullets could possibly
have been the source of the PETN here?  If that was there, you
know you would have heard about it.
         And let's examine this from a slightly different
perspective:  Common sense.  Mr. Tritico said in his statements
to you somehow the PETN got on Mr. McVeigh's clothes.  I agree,
it did.  Somehow it got on his clothes.  And the most
reasonable explanation for you is that this man, who was
arrested just at the point where he would have been if he had
bombed this building and left, this man who was arrested with
this hate literature in his car, got PETN on his clothing when
he made the bomb.
         Now, why isn't it on his hands, his shoes?  You heard
Dr. Lloyd, the defense expert, say that it would be removed
from his hands by simply washing his hands and wouldn't be on
his shoes if there was a change in shoes.  And it doesn't
always get on everything.  This isn't like a lie-detector test.
         Now, let me make my first point about how this meshes
with other evidence, 'cause right now we're talking about --
simply about what's at Noble County.  We have PETN on
Mr. McVeigh's clothing, but there's other evidence that you saw
that fits perfectly with that, that has nothing to do with the
FBI lab that supposedly has a rudder missing.
         It has nothing to do with that, and that evidence you
heard was from Greg Pfaff, Mr. McVeigh's former acquaintance.
Remember he testified that Mr. McVeigh called him in the fall
of 1994 several times, and of course the Bridges' records bear
that out.  They show there were calls to Mr. Pfaff's home and
his Brooklyn Deli, which is in Virginia.  I can't explain that,
can't explain the name, but Mr. Pfaff probably could have.  We
didn't ask him.  But Mr. Pfaff told you that Mr. McVeigh was
contacting him because he really needed det cord bad.  Remember
that testimony?  He needed det cord really badly.  And what is
det cord?  Let's make this clear.  The evidence was that det
cord's not some sort of fuse.  Det cord's a serious, high
explosive like dynamite and TNT.  It's in the form of a cord,
but it explodes.
         And you heard Mr. Pfaff tell you -- and he was in the
gun business for a long time -- that the purpose for det cord
is to set off a series of different charges all at once.  For
example, if you set your bomb up with a series of different
barrels filled with ammonium nitrate, a Tovex booster and a
blasting cap, and you want to set it off all at once, you need
that det cord that explodes and sets the whole thing off.
         Mr. Pfaff told you Mr. McVeigh needed det cord so bad
that he was willing to drive across the country to get it.  And
is it any coincidence that when Mr. McVeigh was arrested on the
day of the bombing, he's got residue from that very substance,
PETN, det cord, the same thing that Mr. Pfaff told you
Mr. McVeigh was looking for?  One example of where the case is
intersected, has different levels, different items of proof
from different people, unrelated that all fit together.
         By the way, the reason I'm turning the pages and not
going as quickly as the others is because I didn't know what I
was going to have to respond until Mr. Jones and his team just
talked, so I apologize for that delay.
         At Noble County, we didn't just have Mr. McVeigh
arrested with the bomb residue on his clothing and in exactly
the place he would have been if he had bombed the building.  We
also had the hate literature in his car.  You heard Mr. Nigh
talk about that at some length.  He told you, Well, Mr. McVeigh
had some of these things in his car, but he also had a lot of
other things that were just general political literature.
         I ask you to focus on what was highlighted in the
literature in Mr. McVeigh's car, what had highlighting on it.
You heard Jennifer McVeigh testify Timothy McVeigh had a
practice of highlighting things that he thought was important.
If that wasn't enough, Jennifer McVeigh put into evidence a
letter which she received from her brother in which he
specifically says that.  If you look at the things that are
highlighted in those letters -- and you'll have to look at the
photographs rather than the letters, because as you remember
Mr. Hupp testifying to, when the letters were fingerprinted,
the highlighting went off.  But we have the photographs, so you
can look at those.  The highlighting shows that the things that
Mr. McVeigh was interested in were all the virulent, violent,
hateful rhetoric in those documents.
         Now, I was very interested to see that Mr. Nigh shows
you one document that was out of that car.  That was the
document that Mr. Jones related to you in opening statement,
"Better to fight with pencil lead than bullet lead."  You all
remember that.  And of course Mr. Nigh told you, This
highlighting wasn't on the original document.  This
highlighting was something Mr. Nigh put on for purposes of
demonstrating that to you, and that's fine.  But there's
something I want to show you.
         I want to show you the actual record, the actual
document that that comes from, the pencil lead/bullet lead
document.  And you can decide for yourselves whether or not
that pencil lead reference was something Mr. McVeigh cared
about at all.
         This is the document, Government Exhibit 454.  I'm
showing you the back side of that document.  And that's where
the pencil lead/bullet lead reference is.  Now, let me show you
the other side of the document.  "When the government fears the
people, there's liberty.  When the people fear the government,
there is tyranny."  And Mr. McVeigh writes on that side of the
document, not on the pencil lead side, "Maybe now," with a
comma after the word "now," emphasizing the word "now," after
the bombing, after I've done this act, "Maybe now there will be
liberty"; in other words, maybe now the government will fear
the people, now that I've killed 168 people.
         Mr. Nigh told you that Mr. McVeigh cut that -- tried
to give you an explanation for Mr. McVeigh cutting the page out
of The Turner Diaries.  And he said, Well, that's only one part
of a larger page where there's a reference to mortar attacks on
the Capitol and downing an airliner.  Well, I ask you, would
this man have any problem with taking a reference out of this
novel out of context when he's perfectly willing to -- when
he's perfectly willing to take the words of Thomas Jefferson
out of context?  You ask yourselves whether if Thomas Jefferson
was here with us, he would approve of a member of our society
blowing up a building and killing 168 people because he was mad
about Waco.
         Of course our evidence does not begin or end with the
evidence at the Noble County arrest.  Before -- before the
Noble County arrest ever happened, the weekend before, as you
know, the Ryder truck that was used in this bombing was rented
at Elliott's Body Shop in Junction City.  The proof was that
the man arrested at Noble County 75 minutes after the bombing,
78 miles away, with residue on his clothing, with a T-shirt
spouting that kind of hate, hateful feeling, with an envelope
full of antigovernment literature and references to current-day
media attacks, was arrested, just happened to be present in the
city in which the Ryder truck was rented, and he just didn't
happen to be present in the city.  You know that from the
McDonald's video that he was present a mile away from the place
in which the truck was rented.  And of course the Government
has proved what the insidious purpose Mr. McVeigh had for that
visit to Junction City was.
         And that brings me to the second segment of the proof,
the Junction City proof.  And this proof as well comes in a
host of different sources.  It isn't just Eldon Elliott and
Vicki Beemer, and it's a lot of different groups; and I'll
explore that with you in the next few minutes.  Starting with
Eldon Elliott, you heard that he saw Mr. McVeigh with no
distractions on the 15th of April and again on the 17th of
April.  He focused his attention on Mr. McVeigh's face just as
Dr. Wells testified was the way in which you get the best
possible memory of something, without any customers there or
any other employees, without any phone calls or the press of
other business.
         We heard from the defense that supposedly Mr. Elliott
originally said -- or supposedly Mr. Elliott said that the man
had acne and camouflage clothing, but that is not my
recollection of Mr. Elliott's testimony.
         Now, of course the defense can't just sit back and
accept this kind of devastating proof.  They have to try to
attack it; they're advocates.  They have to try to show you
some reason why maybe you shouldn't believe Eldon Elliott;
because if you believe him, what's left?  So we heard about 54
days -- it's 54 days between the time Eldon Elliott was
originally interviewed -- excuse me, originally saw Mr. McVeigh
at his body shop and when he ultimately identified him for the
FBI.  But of course you heard Agent Hersley tell you that Mr.
Elliott said that he identified the man in fact the day he
walked out of Noble County Jail on TV, and there is no evidence
one way or the other -- Mr. Jones said, Well, there is no proof
that he called, and there is no proof that he didn't call and
contact the FBI that day; but the proof that you do know -- do
have is that when he saw him on television that day, he
immediately recognized him.
         You also have proof that when he underwent the photo
spread examination, that examination was handled exactly the
way the defense expert Gary Wells said it should have been
handled.  He was told there may or may not be the person he was
looking for in this photo spread.  He looked at it.  He
immediately identified the person.  He showed confidence in his
identification, and there was no comment made afterward.  And
the person he identified, of course, was Tim McVeigh.
         So what is the response?  Well, we hear about Hertig
and Bunting as the explanation for why it is that you can't
rely on Eldon Elliott.  Mr. Jones points to surface parallels
between the two, the two rental experiences.  One, they both
had two men.  One had a hat, and one had dark-blond hair with
light-brown -- dark-blond/light-brown hair, military-style
haircut.  But that's as far as the proof and the evidence --
the effort beyond this point is like trying to pound a square
peg into a round hole.  You can hammer and hammer and hammer,
but it doesn't fit.
         Why doesn't it fit?  Because Eldon Elliott -- there is
no evidence that Eldon Elliott was at all confused about who he
saw.  There's no evidence Eldon Elliott thought he saw Hertig.
There's no evidence at all that Eldon Elliott described
somebody who looked like Todd Bunting.  In fact, the evidence
was that Eldon Elliott and Vicki Beemer couldn't describe the
second person.  That doesn't suggest any kind of confusion by
them.
         If Tom Kessinger, the person who is the source of the
sketch, is confused with who the second person was, that has
nothing to do with whether the man who testified and identified
Eldon -- excuse me -- identified Tim McVeigh as the person who
rented that truck was inaccurate or at all mixed up.
         And I ask you to look at the two men.  Look at Tim
McVeigh and Michael Hertig.  And you have to look at Michael
Hertig from the perspective not of his testimony here, but the
way he looked then.  Mustache; different haircut; his eyes,
nose, head shape, lips, all did not look like Mike Hertig.  And
by the way, the sketch, you'll make your own assessment, and
obviously that's your job as the jury; but I ask you to look at
the sketch and tell -- ask yourselves whether that looks like a
man with a mustache to you.
         Beyond that, there was no evidence -- and getting back
to whether Eldon Elliott was at all confused, there was no
evidence that he was at all confused between the two
transactions.  First of all, he didn't even handle the Hertig
transaction.  And secondly in terms of the details of the two
transactions, they were very different.  Mr. Hertig was going
to Georgia, he took insurance, he had 12 furniture pads and he
was scheduled to pick up his truck at 8 in the morning.  And
you heard Mr. Elliott testify that the person he dealt with on
that Saturday was going to Omaha.  He said he was going to
Omaha, Iowa, and back to Omaha, very, very different from the
Hertig transaction.  And of course this is one that Mr. Elliott
handled himself.
         Mr. Elliott told you another detail which is unique to
this transaction.  He told you that the renter, Mr. McVeigh,
told him because -- he doesn't need insurance because he's used
to driving those big deuce-and-a-half trucks, 5 ton truck --
excuse me -- 5,000-pound trucks, at Fort Riley.  He also
remembered a specific aspect of the transaction.  That had to
do with whether or not the man wanted to take insurance.  You
remember on Saturday -- he tried to get the man to buy
insurance, tried to get Mr. McVeigh to buy insurance, and
Mr. McVeigh said he didn't really want it but he'd think about
it.  And the following Monday, Mr. Elliott recalled that
Mr. McVeigh said, yes -- no, I don't want to buy insurance.
And of course you heard Mr. Hertig testify that never happened
with him.  No evidence to suggest any confusion whatsoever.
         Vicki Beemer's testimony in this area -- although she
couldn't remember what Kling looked like, her testimony is very
illustrative.  What did she tell you?  She knows Michael
Hertig, and she told you that the person who rented the truck
on Monday -- doesn't remember his face, but what she can tell
you is he's about Mr. McVeigh's height, he's got Mr. McVeigh's
hair color, and he's not Mike Hertig.
         Now, we heard references regarding the height of the
renter, and I was astounded to hear Mr. Jones tell you that the
photograph from Noble County Jail showed Mr. McVeigh to be
6' 4".  First of all, you look at the photo and you decide.  I
don't think it shows him to be that.  Secondly, you heard the
testimony of the woman in Noble County Jail testify to -- the
woman in Noble County Jail testify to the circumstances
surrounding the way she took that photograph.  Mr. McVeigh was
standing 2 1/2 feet in front of her.  She's a smaller woman.
What does that tell you about the camera angle?
         Beyond that  astounding -- I was astounded by this
argument, but Mr. Ippolito testified for you that he measured
Mr. McVeigh in jail.  He's 6' 1/2" tall.  This is not a point
worth arguing.  So you have to ask yourselves, why are we
hearing about this?  Why is the defense stretching like this?
They have to.  They have to struggle with this proof because if
they can't try to do something with it, the case is over.
         We heard about the clothing.  Mr. Jones said that
Mr. McVeigh -- excuse me, Mr. Elliott testified that it was
possible that the person who rented the truck on Monday was
wearing camouflage.  Well, I think if you remember
Mr. Elliott's testimony, he said that what he really said was
that the man who came in on Monday may have been wearing
camouflage, and the way that came up was -- and the agent
corroborated this -- Mr. Elliott didn't remember what the man
was wearing and the agent was pressing him.  Well, could he
have been wearing fatigues?  And Mr. Elliott's testimony was,
that, Well, yeah, 75 percent of our customers wear fatigues, so
I guess it's possible.  And then when he was reinterviewed the
next day, he once again reiterated that he does not remember
what the man was wearing.
         Why are we hearing about this?  Well, of course
because the McDonald's shows that Mr. McVeigh is a mile away
right before this rental.  We have -- the defense has to try to
turn that -- try to make something good out of that, so they're
going to use it affirmatively to say, well, that's our best
piece of evidence.  Even though it puts Mr. McVeigh right
there, at the time of the rental, they're going to try to say
that's our best piece of evidence because it shows he's in
different clothing.  The problem is the witnesses at Elliott's
never said the man was wearing fatigues; so it doesn't help
them, it hurts them.
         Now, throughout the closing arguments, we heard this
constant refrain, why didn't the Government call Tom Kessinger,
why didn't the Government call Roger Moore, why didn't the
Government call the taxi driver?  And you know, ladies and
gentlemen, that based on your jury service, that the defense
has subpoena power.  And you also know that they've lots of
resources.  They can interview whoever they want.  They get
government reports as part of discovery.  You've seen that in
this case.  If they wanted to call any of these people -- they
don't have the burden of proof here, make no mistake about
that.  But if they wanted to call any of these people as their
witnesses, they sure could have.  And you can infer that if
they didn't, it's because they didn't have anything to say that
was going to help them.
         Now, beyond the Elliott's witnesses, what other proof
do we hear that in fact Tim McVeigh was Robert Kling?  You
heard a lot obviously.  You've heard a lot of arguments.  I'm
not going to rehash them.  You saw Larry Mackey's presentation
regarding the handwriting.  Startling.  I won't reiterate that.
You heard proof regarding the Firestone events on Friday.  And
that evidence established during the trial that Mr. McVeigh
left the Firestone in about the time the phone call was made
across the street, first one call to Nichols and then another
call to the Elliott's Body Shop.
         And we heard the defense try to poke holes into that,
and it didn't work very well.  And the reason it didn't work
very well is because we heard basically two arguments.  First
of all, we heard some claim that Mr. Manning had somehow been
manipulated, that he said after a number of interviews, Oh,
Mr. McVeigh left -- pardon me -- Mr. McVeigh left the premises
for a while.  Remember Mr. Manning's testimony?  He was the man
on videotape, and he said that the reason that he said that
when he did is that nobody had asked him.
         But I want you to focus on one part of that testimony.
See if you can remember it.  It was distinctive.  He was being
crossed by Mr. Nigh, and Mr. Elliott -- excuse me --
Mr. Manning said, Excuse me, can I say something?
         And Mr. Nigh said, Sure.
         And then Mr. Manning said, I distinctly remember him
leaving the premises.
         Is that the kind of behavior of somebody who's being
manipulated, or is that the kind of truthful answer that you
get from a witness who's just telling you what happened?  And
what else did Mr. Manning say?  He said that Mr. McVeigh left
the premises after the car was being serviced.  Car was being
serviced and Mr. McVeigh left.
         What did Art Wells tell you?  The same thing -- he
didn't tell you he left, but he told you something that was not
at all inconsistent with that.  He didn't tell you that
Mr. McVeigh was standing at that car throughout the time it was
being serviced.  That was the point of the cross-examination.
He said that he was working on the car and after he had been
working on the car, Mr. McVeigh showed up.  Obviously if
Mr. McVeigh left when the car went over to be serviced, he
would have 10 minutes to walk the half a block it took to get
over to the phone booth to make the call.
         Now, the next point that Mr. Jones made was that
some -- the argument that Mr. Manning's estimate of the time
that Mr. McVeigh left was off.  You remember Mr. Manning -- he
told you that -- Mr. Manning testified that Mr. McVeigh was
gone for 10 or 15 minutes and that Mr. Manning said he couldn't
remember when it was exactly that Mr. McVeigh returned.  And
then when pressed, he said, Well, my best estimate is about
10:15 or 10:20, meaning that he was off by about 10 minutes
from the time that the phone call was made, or 15 minutes, 15
minutes after a break of almost a year and a half.
         Does this argument sound like the one that they were
making regarding Eldon Elliott and Vicki Beemer?  Witnesses
give estimates of the timing of events two years ago, they're
10 minutes off, and the response is, Aha?  This is another
example, is what I told you at the beginning of my statements
here an effort to poke little holes all over but not really get
to the point of the evidence, not really undermining the proof
in this case.
         Now, I wanted to show you something about the Manning
call.
         MR. MENDELOFF:  Is this all right, your Honor?
         THE COURT:  Yes.
         MR. MENDELOFF:  Separate and apart from anything any
witness has to say about these events, you have documents,
documents alone which closely tie Mr. McVeigh to this call.
Forget about any witness.  You've got the Firestone work order
from that day showing that Mr. McVeigh showed up at that
Firestone station at 9:00 in the morning.  There's the
Firestone in the photograph.
         Across the street is another -- this photograph is in
evidence -- across the street another document.  J & K Bus
Depot.  What do the Bridges records show you?  They showed you
that at 9:51 there's a call from that bus depot to Terry
Nichols and then another call to the Ryder dealership, and the
Bob Kling quote was created.  And you heard of course Vicki
Beemer testify it was around 10:00, and you saw the
phone-record proof from the Ryder dealership that showed that
there was only one call that came in the whole day which could
have been the quote call.  That was the call that came in at
the same time that Mr. McVeigh was missing.
         Now, in addition to the Manning proof, there's still
other proof, of course, that connects Tim McVeigh to this
bombing -- excuse me, to the rental of this truck.  And what
I'm referring to now is the Hunam Chinese food order, of course
the Kling order to Mr. McVeigh's room.  You saw that the -- you
heard that the Dreamland records show that there were two calls
from Mr. McVeigh's room, Room 25, to the Hunam Palace; and you
heard Miss Bai testify that the food was delivered to Room 25.
         Now, we heard argument about Jeff Davis's testimony
that the person that was in the room didn't look to him like it
was Tim McVeigh.  Well, the defense argued in their closing
statements that we're asking you to disregard Jeff Davis simply
because his first memory was the best memory.  That is not
right.  That is not the reason we're asking you to disregard
Jeff Davis or asking you to view his testimony with great
skepticism.
         The argument is much deeper than that.  Look at
Mr. Davis's testimony.  Look at the context of what he had to
say.  Let's start with that.  He told you -- the witness
admitted that in April of '95, he was delivering up to 50
Chinese food orders a day, that he does not have a good memory
for customers' faces and only recalled about ten repeat
customers' faces, and those are the best tippers; that many of
his customers were military; that he delivered to the Dreamland
at least 50 times before this; and that he attached at the time
absolutely no significance to the Kling delivery to Room 25, at
the time that he dropped it off.
         So what's our starting point with Jeff Davis?  Our
starting point is, by his own admission, he saw loads and loads
of military-looking customers every week, he didn't pay much
attention to their faces, he had no reason to focus on the guy
in Room 25, and that the Dreamland deliveries were not unique.
         Taking his statement of how much -- how many people he
delivers a day -- and let's just assume 30 instead of 50 --
that means he would have seen 180 customers between the time of
his delivery to the Dreamland and the time he was first
interviewed.  What happened when he was first interviewed?  He
said candidly, I can't remember the customer's face.  He gave
the description, which even Mr. Jones admits fits his client:
White male, 28 years old, 6 feet tall, short sandy hair,
clean-cut, no mustache.  He said that the man -- you remember
when he testified -- he said that the things that he was most
certain about was the height and the build.
         But what caused him to change his story?  When he saw
a mug shot in the newspaper.  No indication of height there, no
indication of build.  What's his motivation?  You'll have to
decide that for yourselves during your deliberations.  One
example may be something that came out in his testimony, that
he has been very available to the media and upset when the
media doesn't pay attention to him.
         Does this man somehow develop the ability to reach
back in his memory, a memory that he admits isn't good, to
customers and remember what he said he'd forgotten or never
seen?  What does the defense expert, Dr. Wells, tell you about
this kind of interaction?  The time they saw each other was
very brief, the man was not paying attention, he had a lot of
orders to go.
         But let's take a step back.  This is the important
point about the testimony of Jeff Davis.  I'm going to ask you
to take a step back, and I'm going to point something out to
you, ask you as I'm pointing this out whether or not Davis's
testimony makes any sense at all, whether it's reasonable,
whether it comports with common sense.  We know at the time
Davis made that delivery, we know for sure, that he delivered
to Room 25 and that the person in Room 25, the guest, was Tim
McVeigh.
         For Davis's story to be credible, somebody else named
Kling, the bomber, had to have snuck into Mr. McVeigh's room --
and we know burglars always sneak into hotel rooms and order
Chinese food, happens all the time.  They sneak in.  Bombers
are going to go in there -- I'm a bomber and I want to order
that Chinese food, and so I'm going to go in and order that
Chinese food, but this was an audacious bomber, because for
this to work, wasn't only sneaking into the room, once he snuck
into the room, he had so much nerve that he stayed there,
called Dreamland back for the second call to complain, Where's
my food?  And it didn't even end there because this bomber, who
snuck into Mr. McVeigh's room, then had the nerve to stand at
the open doorway and collect his Chinese food and then, to top
it off, give Mr. Davis a nice tip.  Is that credible?  Does
that make any sense at all?  Or is it much more reasonable to
believe that Mr. Davis was telling the truth early on when he
said that he just didn't remember the face of the man who
received that Chinese food that day?
         We heard testimony regarding Dreamland witnesses,
Herta King, and the like.  Eric McGown was the only witness to
see two things:  To see a Ryder truck and to see Tim McVeigh in
the Ryder truck.  Notice that none of the defense witnesses who
were called could put Mr. McVeigh in that Ryder truck.  What
does that mean?  We don't know whether that Ryder truck on
Sunday was McVeigh's Ryder truck or some other truck.  In fact
Herta King testified that the truck she saw she thought was
smaller than the big truck.
         And not only that, but if you look at the other
defense witnesses, the testimony of the Ryder witnesses
conflicted a bit with the testimony of the Mercury witnesses.
You heard the Whites testify that they were there that morning
until about 10:30, no Ryder trucks that they saw.  By noon
there's two Ryder trucks there.  You have to sneak that Ryder
truck in.  Of course it's got to be Mr. McVeigh's.  The problem
is that Miss King says it's not the big truck.
         You heard testimony that the bridge was out right near
the Dreamland at that time, and there was a lot of construction
vehicles and lots of trucks around.  And it's just as likely
that this truck was not at all related to this case; but the
key point is McVeigh and Ryder together.
         And by the way, exactly what is the defense point
about this?  If their assertion is that it was Mr. McVeigh that
had a Ryder truck there Sunday, where exactly did that truck
come from?
         I'm going to ask you to go way back in your memories
to toward the beginning of the case when Andy Anderson
testified, the man from Ryder.  And he told you that he checked
the national record base for Ryder trucks in the name of
McVeigh, Tuttle, and all his other aliases for April of '95,
and no rental.  What's more reasonable, that Mr. McVeigh just
materialized this truck with no rental record or that there was
more than one truck or that these two defense witnesses, Miss
Truong and Miss King, who go to the Dreamland all the time,
those people are there day in and day out -- in fact,
Miss Truong lived there for a while -- that they were mistaken
about when they saw a Ryder truck there and it was another
truck.  And even if you ignore the Dreamland evidence that we
presented, does that mean that Mr. McVeigh didn't rent the
truck on Monday?
         Now, the next defense that I need to address is "the
bomber's not that stupid" defense.  And "the bomber's not that
stupid" defense goes something like this:  Would I -- if I was
going to commit this bombing, would I check into the Dreamland
with my own name and order Chinese food in the name of the
alias?  Would I drive without tags down the freeway?  Would I
not shoot the trooper when he came up to me?  Would I not order
bomb books -- or would I order bomb books in my own name?
Would I not wear a disguise at Elliott's?  Would I carry
incriminating literature in my car?  Would I save an ammonium
nitrate receipt that reflected the purchase of 2,000 pounds of
ammonium nitrate?  Would I leave the lock on the ANFO trailer
when I did a burglary?  Would I rent lockers in phony names?
Would I give the Nichols address when I rented one of those
lockers?
         The only thing that distinguishes this case from any
other trial and this jury, yourselves, from any other jury is
the monstrosity and inhumanity of the actual crime, but what we
have here is a crime.  Your job is to decide whether or not the
Government's proved that this defendant committed this crime.
No more, no less.
         And the monstrosity of the crime to one side, Tim
McVeigh and Terry Nichols like all -- are not any different
than any other defendants who find themselves in a criminal
court.  They make mistakes, and that's why they get caught.
And this argument is completely circular, the argument that
this defense team makes:  The argument that, well, if I had
done this crime, I wouldn't have made this mistake.  Any
defendant in any case could make the same argument about all
the evidence against him.  It proves absolutely nothing.
         Now, let me show you another chart regarding that
Hunam purchase.
         Just like the Manning evidence, the Hunam evidence is
also susceptible to being established in large part through
documents.  Forget about witnesses.  The connection of Tim
McVeigh to this evidence can be proved through documents.  You
have Tim McVeigh checking into the Dreamland, Room 25.  There's
a call from Room 25 -- this is the Dreamland record that's in
evidence -- to the Hunam for delivery in the name Kling.
Documents, not witnesses.
         What does all this evidence show you, all this
evidence regarding Tim McVeigh and Kling?  What it shows you is
that you have three different categories, three different lines
of proof, all independent of one another, different arrows with
different evidence behind it, all pointing to the same thing:
That Tim McVeigh is Robert Kling.
         You have the witness testimony, Eldon Elliott and Lori
Fortier:  Eldon Elliott of course identifying him, Lori Fortier
telling you about the lamination that she handled with her
iron.  You've got the McVeigh Firestone evidence which is one
line of proof, and it doesn't depend on any of the historical
witnesses.  And you've got the Dreamland evidence, and that
doesn't depend on any of the others.  But what do they all
show?  Is it coincidence that all these lines of proof are
going to the same central point?
         And there was other evidence as well, of course, that
I don't see beyond the Elliott's evidence.  We have the
McDonald's video that put Mr. McVeigh within a mile of the
Dreamland; and right after, we've got the evidence of the
double truck -- double wheel tracks that just happened to be
the same width as a Ryder truck and just happened to be in
front of Shed No. 2.
         What else do we have?  Something I want to show you,
and this is in Government Exhibit 555.  When Mr. McVeigh was in
Arizona, before he ever left to come to Kansas, you heard from
Mr. Hofer that he stayed at his motel, the Imperial Motel.  And
what is the reason we put that little man up on the stand to
testify about Mr. McVeigh's presence there?  The reason is that
at the time Mr. McVeigh was staying at that motel, there was a
Bridges call from there, from the motel in Arizona.  And where
was it to?  It was to a Ryder rental outfit, another Ryder
call, from before Mr. McVeigh ever got to Junction City,
another call to a Ryder.  You ask yourselves whether or not
there's some specter or ghost out there that's Robert Kling or
whether or not this is just another item of proof to show you
who Robert Kling is.
         Separate from the Junction City proof, you heard
evidence from the fall of 1994.  You heard evidence from people
who Mr. McVeigh contacted who he knew back then.  Greg Pfaff,
Dave Darlak, Glynn Tipton, all people who identified Tim
McVeigh as the person that was contacting them.  Pfaff said he
wanted det cord.  At the same time, David Darlak saying my
friend, not known to be in racing, is calling me up and wanting
racing fuel.
         Tipton testified that McVeigh walked up to him -- a
man he was 90 percent sure was McVeigh walked up to him at that
racetrack.  And what did Mr. Tipton say about the height?  I
think we heard an incorrect statement during the defense
argument.  The testimony regarding the height was Mr. Tipton,
when he first was talking to the agent, thought the man was
5' 8", and then he remembered during that first interview that
he was standing on a step and the person he was talking to
wasn't.  And in that first interview with the agent, he
testified that the man he was talking to was about 6 feet tall.
         What else did he tell you?  He told you something that
was extremely telling and established beyond any question that
Mr. Tipton was thinking about Tim McVeigh.  He told you that
the man he saw had a scraggly beard.  And at the time
Mr. Tipton said this, the only thing that was public was
Mr. McVeigh's walk-out video at Noble County, showing him as he
is today.  How did Mr. Tipton know that in fact Mr. McVeigh did
sport a beard that day, if he didn't really see him?  But you
saw Government Exhibit 52, the photograph of Mr. McVeigh with
the beard.  Conclusive proof that Mr. Tipton knew what he was
talking about, wasn't manipulated by any kind of questioning.
In fact when Mr. Tipton testified about that, he told you -- I
think his words were, My testimony is my own.
         We have, from an entirely separate group of people in
an entirely separate place, evidence that's completely
consistent with the evidence outside Noble County and the
evidence that we see at Junction City the weekend before the
bombing.
         When Mr. Jones ended his comments to you by talking
about this extra leg -- I'm not going to spend a lot of time on
it -- but the extra leg theory turns on -- and I apologize to
Dr. Marshall -- but a rather bizarre theory he has about the
ability of a piece of a body to survive when the rest of the
body is completed disintegrated.  And of course the only time
in all his years he's ever seen that had to do with a body part
that you recall what it is that's slightly different than an
entire human leg.  Dr. Marshall didn't even examine the leg in
this case and he didn't know that in fact the leg in question
was in perfectly good shape; it had been severed, but it was in
good shape.  It has not been mangled.  It did not -- did not
appear to have been subjected to that kind of trauma.
         And what is the explanation for this leg?  Well, we
know that the leg that was -- this leg resulted from a leg that
was -- from a course of events, and I'll try to go through them
with you quickly because I know you're really -- I'm trying
your patience now 'cause the dinner hour is past.
         There was a leg that was found in the Murrah Building
after the building was imploded, an extra leg.  That leg was
tested, and the FBI was able to determine from footprints that
it belonged to a woman who was already buried in New Orleans.
And then the testimony went that they took the leg to the body,
removed the body from the grave, and found another leg in that
casket.  The problem was -- so they replaced the leg and sent
the body to rest again.
         The problem was that the leg that was in the casket
had been so severely embalmed that there was no ability to get
any DNA, and it had been so decayed that there was no ability
to get any footprint or fingerprint off it.  It was a left leg.
The question was how do we find out whose leg this is.
         The medical examiner's office was able to trace and
find out that there was one casket that was put in the ground
missing a leg.  Now, this casket was missing a right leg.  It
had a left leg.  But the nature of this crime is -- and I know
it's hard to hear, but the nature of the crime is that this
bomb created an effect -- a meat-grinder effect in that
building.  There were body parts everywhere.
         The medical examiner's office did do a magnificent
job.  Is it more reasonable to believe that in a casket
somewhere there are two right legs as opposed to a right and a
left and that's why there's a mismatch here, or is it -- is
Dr. Marshall's wacky theory about the whole body disintegrating
except for an entire leg which is left intact more reasonable?
         Now, we heard argument about the defense eyewitnesses
and the Government's eyewitnesses, and there's one point I want
to make, and I'll move on from here.  But the point I want to
make about the eyewitnesses is this.  Look at the Government's
eyewitnesses.  Eldon Ellott, Glynn Tipton, Tim Donahue, Marion
Ogden, what do they all have in common, all of them?  They're
all corroborated by independent proof.  There's independent
evidence to show the things that those people are all saying.
         And let's juxtapose that against the defense
witnesses, the defense eyewitnesses.  Absolutely no
corroboration for any of them.  And we saw what happens when
there's no corroboration.  We saw the evidence in Jamie
Carroll.  She thinks she saw Terry Nichols at that Conoco
station.  But you heard the evidence that the man that was in
that Conoco station couldn't have been Terry Nichols because
the truck that he filled up had a tank bigger than Terry
Nichols' truck, he bought more fuel than could possibly fit in
there; so she was obviously mistaken, and that's what happens
when there's no corroboration.
         And similarly, you heard arguments about why the
Government didn't call anybody from Oklahoma City, and that's
your answer.  Not results, but corroboration.  We wanted to
present to you a case in which the witnesses are proved by this
interlocking, overlapping approach that I've told you about
today.
         Now, as to whether or not residue was found, I'm going
to spend about a minute on this.  We heard a lot about it from
Mr. Tritico; but frankly, the evidence in this case answered
all the things -- points he tried to make.  He tried to make
them during the trial, and they didn't fare very well, if you
remember what the evidence was as opposed to the arguments.
The evidence was that you wouldn't expect that -- even
Dr. Lloyd said that there wouldn't be any PETN or residue of
high explosives found at the bomb scene in a bomb of this size.
         There was a dispute about prills and whether or not
prills would be found there.  Dr. Lloyd was the lone voice in
the wilderness on that one.  But you heard testimony about the
prills at the scene from Government witnesses and people who
have nothing to do with the Government.  Linda Jones and Steven
Burmeister told you that based on their experience, they don't
see prills at the scenes of these big bombings.  And who else
told you that?  Paul Rydlund told you that, and one other guy
told you that, a guy who really knows, maybe better than all
these people.  Bud Radtke, the blaster from the quarry, said
it's not his experience -- and he's blasting little holes, not
big bombs -- it's not his experience that he has a problem with
prills.  He doesn't see them left over.
         Let me turn to the Fortiers' testimony, and I'm not
going to spend a lot of time with this at all.  I'm going to
give you -- I'm going to handle this in two different parts so
that we can finish and you can go eat dinner.  The first part
of the argument that I want to make to you, presentation I want
to make to you, is this:  The proof that Michael and Lori
Fortier gave you in almost whole part was established
independently with other evidence in this case.  For example,
look at the argument I've given you today up till this point.
I've mentioned Lori Fortier one time, I think.  Twice.  Once in
relation to the lamination and once in relation to the fact
that she knows her husband, and that's it.  The evidence I've
presented to this point in my presentation today has not relied
on the Fortiers.  The case does not rely on the Fortiers.  What
the Fortiers do is provide a narrative of what happened on the
inside, but it does not depend on them.  And you can go through
huge parts of their testimony, and you will see that it is
established by independent evidence that has nothing to do with
them.
         One example is Michael Fortier's testimony that
Mr. McVeigh told him that he and Nichols burglarized a quarry
near Nichols' home, had trouble with a barrier covering the
lock, drove two vehicles bearing explosives to Kingman, and
almost had an accident.
         Marion Ogden testified that in fact Mr. McVeigh was in
the vicinity at the time.
         Bud Radtke told you about the quarry burglary.
         Jodie Carlson -- excuse me -- Jim Cadigan told you
that Mr. Nichols' drill matched that lock.
         Jennifer McVeigh told you about the fact -- the time
that her brother recounted to her that he was driving along
with another vehicle -- one I submit that Terry Nichols was
in -- and they almost got in an accident and they had a
thousand pounds of explosives -- Mr. McVeigh had a thousand
pounds of explosives in the vehicle.
         Finally, you heard testimony from Jodie Carlson, the
woman at the storage rental place out in Arizona, who said that
me Mr. McVeigh rented that storage shed on October 5, so you've
got Marion Ogden putting Mr. McVeigh in Kansas at the end of
the month and, lo and behold, Mr. McVeigh's renting a shed in
Arizona on October 4.
         The evidence fits together without even Mr. Fortier
telling you, but he told you that that's what Mr. McVeigh told
him.
         You heard a series of arguments from Mr. Jones at the
beginning of his comments today regarding the credibility of
the Fortiers.  Mr. Mackey in his comments to you told you
about -- referred you to a number of the aspects of their
testimony which on their own smack of credibility.  Who would
make up getting on the floor with soup cans?  Who would make up
asking to borrow your iron and saying, No, I want to do it,
myself.  I don't want you to ruin my iron.
         And remember, most chillingly probably, Michael
Fortier's testimony about his visit with Tim McVeigh to
downtown Oklahoma City.  Remember that testimony in which
Mr. Fortier said, Why are you going to do this?  There's
innocent secretaries in that building.  And Mr. McVeigh's
response was, Well, unfortunately, the innocent people need to
die because they're like the storm troopers in "Star Wars."
All the storm troopers may not have been bad, but they were
guilty by association.  Would this "Star Wars" storm trooper
analogy be something that anybody would make up?
         But the testimony of the Fortiers needs to be analyzed
beyond just this point, because there's other aspects to this
that I want to bring out.  First of all, there's many aspects
of the Fortiers' testimony that reflect a lack of an attempt by
the Fortiers to stretch what they had to say.  Michael Fortier,
for example, told you what he saw and didn't elaborate on it,
didn't try to make it better than it was.  He told you, for
example, that the time he went to Storage Unit E10 in Arizona
with Mr. McVeigh -- remember that?  And he told you that he saw
that one box that had the Tovex sausages in it, one box.  He
said that there was a blanket over some other stuff there and
he doesn't know what it was.  He said he saw one box.  If he
wanted to lie, if he wanted to sell his soul, wouldn't he be
telling you that the room was filled with Tovex sausages and
blasting caps to try to fit the Government's theory?
         Then Mr. Fortier gave you other testimony that was
consistent with that.  He told you that he went to the storage
unit in Herington with Mr. McVeigh when he drove out there in
December, and you remember that he testified that at one of the
storage units, there was a mattress covering the door and he
couldn't see in.  If he wanted to get up here and sell his soul
and lie, why didn't he tell you that I saw 4,000 pounds of
ammonium nitrate in bags stored in that locker?  Because he's
not stretching in what he's telling you.  He never testified
that Mr. McVeigh told him, for example, that he was going to
rent this truck at Elliott's Body Shop or pointed out the exact
quarry that he was going to rob, things that would mesh in with
the Government's proof.  He's telling you what he knows and
only what he knows.
         The challenges to the credibility of the Fortiers can
be divided into three basic areas:  Prior lies to the press,
friends, family, and the FBI; the fact that the Fortiers were
subjected to pressure by the Government and the media; and
Michael Fortier's statement that he was going to tell a fable.
If you boil it all down, that's what you get.  Starting with
the prior lies, you heard Mr. Fortier tell you the reason that
he was lying, that he was trying to protect Mr. McVeigh to
protect himself.
         I ask you to look at Mike Fortier.  Look at the kind
of person he is.  Look at the kind of person Lori Fortier is.
They're a young couple at the time.  Their lifestyle was not
characterized by taking much responsibility.  And all of a
sudden they get thrust into this national spotlight with
tremendous pressure.  Isn't it likely, isn't it understandable,
that these people would try to get out of this by lying?
         And Mr. Jones' argument on this I thought was sort of
strange, I have to say.  He told you that you can disbelieve
Mr. Fortier because he was lying and he lied to Judge Russell
when he said that he had lied to the -- that he had only lied
to the FBI for three days, that was a big lie, supposedly he
had lied for three weeks and so you shouldn't believe him.
What was the lie that he was admitting to Judge Russell?  The
lie was that he wasn't telling the whole truth about what Tim
McVeigh did.  That was the lie.  Slightly circular if you
believe Mr. Jones' argument that Mr. Fortier was telling the
truth when he said everything he told you about Mr. McVeigh's
plot.  But of course the Fortiers' testimony can't be taken in
the abstract, and it doesn't make any sense to argue that
they're lying about all of these things, because the lion's
share of them are established with independent proof.
         But let me ask you to look at the argument regarding
pressure from the FBI and the media, pressure to plead guilty
to the crimes in this case.  Does that make any sense at all?
As human beings, does that make sense?  If what Mr. Fortier had
to testify about, not regarding the gun testimony but regarding
misprison of felony, regarding the fact that he knew about this
crime, that crime that he pled guilty to, he knew about this
crime and didn't do anything about it, if that wasn't true,
would anyone get up in front of the entire nation, let alone
this jury, and admit to having prior knowledge of this most
heinous, most bloody crime in our history?  Would anyone do
that?  Would anyone voluntarily subject themselves for a
lifetime of having to worry whether the next person they meet
would find out about their background, their past, that they
had some involvement in this?  And would anyone, anyone, do
that for tabloid fame?  This tell a fable to make money with
the tabloids:  Does that make any sense at all when you con-
sider the gravity of what we're talking about here?  Would
anyone do any of those things unless they were telling the
truth?
         The Government's evidence doesn't stop with the
Fortiers, of course.  And you heard testimony from Jennifer
McVeigh, and the letters that were introduced with her speak
volumes.  Those letters -- forgetting about her testimony about
something big happening -- those letters tell you that
Mr. McVeigh was expecting something big to happen.  There's a
letter on March 25 in which Mr. McVeigh says, Don't write any
letters after April 1 because the G-men may intercept them,
thus incriminating you, incriminating her.  This isn't just a
mistake; that this man, the man who wrote this letter, was also
the man in Junction City in Room 25, was also across from the
J & K Bus Depot at the time of the quote, was also the man that
Eldon Elliott identified, was also the man who was arrested
just where he would have been at the time, just where he would
have been after the bombing if he left Oklahoma City at the
right time, was arrested with hate literature in his car and
bomb residue on his clothes.
         Thank you for being patient.  I know it's been hard.
Let me just close by telling you a couple thoughts.  It's the
mark of the magnificence of our justice system that we insist
on justice and fairness even for those who have treated others
with ultimate inhumanity and injustice.  And your decision in
this case is about one thing.  Not emotion.  It's about
justice; hard, cold facts; and proof; justice.
         Your verdict won't mend aching hearts forever broken.
Your verdict will never bring Helena Garrett's baby back to
her.  She will mourn for the rest of her life, and nothing any
of you can say or do will change this.  That's not what this
process is about.  The mothers and fathers, sons and daughters,
grandparents and grandchildren who died in that bombing will
not be brought back by your verdict, and that's not the reason
to deliver a verdict in this case.
         There's one thing that you can do.  At the times of
greatest trial and difficulty, it's vitally important to return
to basic principles, basic principles.  The central tenet of
our government is justice.  I ask you to deliver the justice
that defines this nation, the justice that the nation deserves.
I ask you to declare together with a strong, clear voice that
our society has no room for one whose seething hatred leads him
to kill innocent children; innocent men and women; innocent,
dedicated public servants.  The only justice -- only justice
can begin to salve the wounds that this crime has wrought on
the wounded, the killed, and on this nation.
         Thank you.
         THE COURT:  Members of the jury, we do appreciate your
cooperation and patience in letting us run late to complete
these arguments, but I did believe that fairness required that
we hear it all.  But, of course, you haven't heard all that is
necessary before you begin deliberations, because I will
instruct you on the law, and I'm not going to do that tonight.
         What remains with respect to the trial is of course
these instructions, which I will read to you, and you will have
copies -- the deliberating jurors will have copies of the
instructions.  That's a very important part of what you must
consider in your deliberations in the case and in arriving at
your verdict; because as I have said so many times, that you
must decide this case according to the evidence and also
according to the law.  You've heard the evidence.  You've heard
the arguments.  You have not heard the particular principles of
law that will be given to you in the instructions.  And you
will recall way back when you were being selected as jurors in
this case, you agreed that the instructions are important and
you would be bound by them.
         So we're going to recess now; and of course it is
different from all other recesses in this trial, because, first
of all, you have heard everything except the instructions; and
secondly, we are now keeping you together, separate and apart
from other people, and you understand the reasons for that and
the importance of it.
         But the case is not given to you now.  And while you
may be together, you should not begin your deliberations and
you should not discuss the case.  And you must await one more
time, even in your own minds, coming to any sort of conclusions
about this case.
         I'm going to suggest that we start at 8:30 in the
morning.  I think given the arrangements, that ought to be
convenient for everybody.  And I can get these instructions
read to you, I'm sure, in less than an hour, and then the case
will be yours to decide.  The deliberations will take place
here, in this courthouse, you understand.
         We will also make arrangements to have all of these
exhibits organized.  We're going to take the courtroom next to
this one and block it off, put all of the exhibits in there,
and have arrangements so that at your own choice and with your
own timing, you can go there and review these exhibits such as
you wish.
         There will be an index for you so that -- two indexes,
really, one with respect to the Government's and one with
respect to the defense exhibits, so you'd have an opportunity
to find that which you want to find.
         And, of course, the deliberations will be done by 12
of you, and there will be a separation there; but the
alternates will -- you know, we said back in World War II, that
those -- "They also serve who only sit and wait."  That's true
with respect to alternate service on a jury.  But we ask you to
wait till you have heard what I have to tell you about the law,
and then you'll be getting the case rather early tomorrow
morning, and then it will be up to you.  But for now, continue
to avoid discussion of the case.  Keep open minds, and we hope
that you have a pleasant evening.
         8:30 in the morning.  Does anybody have any problem
with that?  I think you've been getting here about that time
anyway.  So we'll expect to come right into the courtroom and
finish this trial at that time.
         You're excused until then.
    (Jury out at 6:35 p.m.)
         THE COURT:  We'll recess till 8:30 tomorrow morning.
    (Recess at 6:35 p.m.)
                         *  *  *  *  *


                             INDEX
Item                                                      Page
CLOSING ARGUMENTS
    By Mr. Jones                               
    By Mr. Nigh                                
    By Mr. Tritico                             
    By Mr. Jones                               
    By Mr. Mendeloff                           
                         *  *  *  *  *
                    REPORTERS' CERTIFICATE
    We certify that the foregoing is a correct transcript from
the record of proceedings in the above-entitled matter.  Dated
at Denver, Colorado, this 29th day of May, 1997.

                                 _______________________________
                                         Paul Zuckerman

                                 _______________________________
                                          Kara Spitler