-- Jury forewoman Niki Deutchman, quoted in the Rocky Mountain News, after Terry Nichols' trial
The message conveyed by the jury forewoman was clear; the federal government, primarily the Federal Bureau of Investigation, had done a poor job investigating the April 19, 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City. Several of the jurors felt that the agency had failed to investigate numerous leads that implied the worst act of domestic terrorism in U.S. history had been perpetrated not just by Tim McVeigh and Terry Nichols, but by a number of other persons who are still roaming free in the heartland. The jury felt so strongly that others were involved that they refused to convict Nichols of murder.
The nation was shocked at the non-verdict. The survivors and family members of those lost in the explosion were angry and so was the FBI. Shortly after her post-trial news conference, Deutchman received several bomb threats that abruptly ended her apparent fascination with the glare of media lights. And then the government responded.
U.S. Attorney General Janet Reno blasted Deutchman's criticism, as did the lead Oklahoma City investigator for the FBI. Reno assured the nation that the agency had followed every lead, leaving no stone unturned in its effort to find those responsible for the blast that left 168 people dead. She went on to bluntly state that there was no larger conspiracy and that McVeigh and Nichols were the sole perpetrators of the crime.
Unfortunately, Janet Reno is likely wrong -- again.
During a year-long investigation, Boulder Weekly learned that the FBI did, in fact, do a less than stellar job of following up on solid leads. Our investigation has uncovered information provided to the FBI by Kansas county sheriffs, Kansas district-attorneys and very reliable eye witnesses which was disregarded by the bureau for no apparent reason. Some of this information surfaced during the Nichols' trial and, according to jurors, was pivotal in their decision to acquit Nichols of murder.
More significantly, Boulder Weekly found evidence that the FBI may have withheld certain information about other potential conspirators from the defense teams during the discovery process, potentially tainting the verdicts of both the McVeigh and Nichols cases, possibly opening the door for mistrial arguments in both instances.
The first time Charles Farley was shown a picture of the man he repeatedly tried to get the FBI to investigate was Dec. 10, 1997. Farley was seated in the witness stand in Federal Courtroom C-204 and the man with the photo did not work for the government.
"Mr. Farley, do you ... do you recognize the individual depicted in this picture?" asked Terry Nichols' defense attorney Adam Thurschwell.
"Yes, sir," answered Farley.
"And who is that individual?"
"That was the individual that was standing at the door of the truck, the individual that gave me a dirty look," he said.
Farley was testifying for the defense about his experience the day before the Oklahoma City bombing. On April 18, 1995. Farley had gone to Geary County State Fishing Lake to scout out the fishing potential. As an employee of nearby Fort Riley's Outdoor Recreation Center, he'd been asked recently about the prospects for catching crappie, and he thought he'd take that Tuesday to drive down to the lake and check it out for himself.
When he was finished and driving down the dirt road that led back to the highway, he was slowed down at the gate by a number of vehicles that had parked close to the narrow entrance: two pick-up trucks, a brown car and a large yellow Ryder truck. One of the pick-ups -- a flat-bed model that Farley described as a "farm truck" -- was burdened under the weight of several dozen bags of ammonium nitrate fertilizer. "It looked like it was completely weighted down," Farley told the jury.
It was his assumption that the Ryder truck was there so that the several men he saw gathered around the vehicles could unload the fertilizer from the truck, which he thought was stuck due to the incredible weight of all those bags. He thought he might offer his assistance.
He quickly changed his mind, however, when one of the men -- a man he would identify more than two and a half years later in court -- gave him a nasty glare. The image of the man stayed in his mind not only because he was practically standing next to Farley's car, but also because the man was easy to identify: there were a number of distinguishing features about him.
A few days later, after the bomb leveled the Murrah building, Farley saw the same man again. This time he was on TV, being interviewed about militia issues. By then, it was being reported that the bomb was detonated in the cargo bay of a Ryder truck, one that was rented in Junction City, Kan., about 12 miles from Geary Lake. The bomb was said to have been made from ammonium nitrate fertilizer. Thinking that he may have eyewitness information about one of the men who built the bomb, Farley decided he had to tell the FBI about what he saw.
This turned out
to be easier said than done, however. He called the 1-800
number that had been set up by the FBI for tip information, but says he
"really got no response." Other base emergency numbers were equally useless.
"The FBI had set up a command post there on Fort Riley and we had no
telephone numbers to contact them with. I called the MPs (military police),
the post CID, Criminal Investigation Division. They couldn't give me a
number to them," Farley said in court.
Finally, about two weeks later, an FBI agent showed up to interview him and Farley told him his story.
But apparently this is as far as the government followed this lead despite the fact that Farley's information could have identified one of the bomb builders. It would be reasonable to think the FBI would at least try to identify the individual and look into his background.
Obviously, this wasn't done: according to sources close to the defense, the Nichols defense team, having learned the identity of the man Farley saw, asked the FBI for all its information on the individual during pre-trial discovery. They were given a file containing nothing more than a few newspaper clippings. There was nothing in the file that indicated that the FBI had ever attempted to contact the individual or to place him in a line-up for Farley to identify.
Which is more than curious. Approximately six months ago, Boulder Weekly decided to attempt to identify this man based solely upon Farley's description. Using our Kansas contacts, we were able to do so within 20 minutes of placing the first phone call. BW has also learned that subject No. 1 had previously been arrested on gun charges prior to the Oklahoma City bombing. According to a Kansas law enforcement official familiar with the case, the man was caught creeping through a farmer's field with several other men, all dressed in full camouflage and carrying assault rifles.
More telling, however, is that subject No. 1 was hardly low profile within the antigovernment movement. In addition to his television appearance, he was quoted in a Kansas newspaper article after the bombing bragging about the fact that he was passing off bogus liens, checks and money orders all over Kansas using tactics he learned from LeRoy Schweitzer, the leader of the Freemen in Montana. Several law enforcement sources in Kansas have told Boulder Weekly that at the time these quotes were published, there was a massive federal investigation into Freemen-sponsored bank fraud in Eastern Kansas.
The day after the Oklahoma City bombing, two police sketches were faxed to media organizations and law enforcement offices across the country. They depicted two men who were believed to have detonated the Ryder truck, John Does No. 1 and No. 2. Timothy McVeigh, who was taken into custody 90 minutes after the bombing for driving without a license plate and carrying concealed weapons, was quickly identified as John Doe No. 1. John Doe No. 2 has never been identified by the FBI.
Nor does the agency seem to have expended much energy on the task. Shortly after the bombing, Shawnee County, Kansas, Sheriff Jake Mauk says he nearly fell out of his chair when he compared the John Doe No. 2 sketch to the photo of a known antigovernment activist in his area. Shawnee County is about 50 miles east of Junction City, where the Ryder truck was rented and where Tim McVeigh stayed overnight at the Dreamland Motel with another man who has never been identified. It's also close to the small town of St. Mary's, home to the same clan of Freemen in which Farley's man from Geary Lake claimed membership.
Mauk says he quickly alerted the FBI. Yet, for reasons that will likely never be fully known, the FBI apparently failed to respond to Mauk's information.
Nor did the agency heed similar tips from Suzanne James, an employee of the Shawnee County District Attorney's office who had information about the same individual. The FBI told her that they'd already investigated Mauk's John Doe look-alike.
So did they?
Apparently not. Sources close to the Nichols/McVeigh defense teams tell Boulder Weekly that they were told no federal information existed on this individual. If the FBI had initiated an investigation into the man, there would most likely be something -- anything -- on file, according to FBI Special Agent Ron VanVranken, speaking from agency headquarters in Washington, D.C. "If I was investigating an individual, as in each of my investigations in the past, if I had attempted to make a contact, I would keep a log of that. And if I did make contact and interviewed him, it's quite possible that the interview would become evidentiary some day, so we would have to keep a record of that, of course."
One of the typical records kept by the FBI during an investigation is a 302 form, an important document that is a "report of an interview or a report of some investigative step, so that in the future, should charges be brought and the case go to trial, (it) can be entered into court," says VanVranken. No such records were available from the FBI for theNichols/ McVeigh defense teams on either of the above suspects. In other words, neither lead was investigated by the FBI.
One person who did investigate the man Mauk and James suspected as John Doe No. 2 is Mike Tharp, a reporter for U.S. News and World Report. Mauk talked to Tharp after his frustration with the feds became unbearable.
Tharp obtained a photo of Mauk's look-alike and started showing it to people known to have seen a man other than Terry Nichols with McVeigh in the days leading up to the bombing. When he showed the photo to Barbara Whittenberg, the owner of the Santa Fe Trail Diner in Herington, who claims she saw John Doe No. 2 with McVeigh, she said, "I'd almost swear that was the guy." Finally, when Tharp inquired about the individual to the FBI, he was given a line that was becoming all too familiar: "We'll follow any lead."
Within days of the bombing, an assistant county attorney for Geary County, Kan., by the name of Russell Roe sat down with FBI agents and told them about a man in his area known to be involved in antigovernment activities. Roe told the agents that not only did the individual resemble the John Doe sketches, but that this man was said to have been exploding fertilizer bombs on his remote farm prior to the Murrah building explosion.
Suzanne James, the woman in the Shawnee County DA's office, told the feds about the same individual. She also tried to tell the government that she might know an informant with information pertinent to the Oklahoma City bombing. James says that the government seemed less than interested in her information. After placing approximately five phone calls to the FBI, she gave up.
So it should come as no surprise that when the McVeigh and Nichols defense teams requested information on subject No. 3 they were told yet again that none existed beyond the statement of Russell Roe; no records of phone calls, no reports about a drive out to the farm. Nothing.
However, Boulder Weekly has found evidence that indicates that the FBI had indeed been investigating the individual for a significant amount of time prior to the McVeigh and Nichols trials. This apparent discrepancy raises the obvious question: Why did the government seemingly withhold information on suspect No. 3?
Several Kansas law enforcement officers tell Boulder Weekly that the FBI issued a warrant for the arrest of subject No. 3 toward the end of 1995. They weren't sure what charges were involved but they remembered the warrant. The same sources claimed that the warrant was mysteriously quashed a short time later. When BW requested information from the FBI regarding the warrant, we were told that no such warrant ever existed.
Despite the FBI's claims, however, a Kansas law enforcement officer was able to find a "notice of warrant" which states that a warrant was indeed issued by the Kansas City FBI. It lists several aliases for subject No. 3, states that he is armed and dangerous and requests that law enforcement confirm the warrant and extradition with the Kansas City FBI.
to this document, BW has also interviewed a Kansas sheriff who
claims to have a copy of a Montana Highway patrol bulletin dated April 4,
1996 which states that subject No. 3 was heading to the Freemen compound in
Jordan, Mont. The bulletin warns officers not to apprehend the subject
because he had threatened that he was "going to Montana to die." The sheriff
says that the document requested that when the subject was sighted, all
information was to be passed on to the Billings, Mont. office of the FBI.
Further, in the fall of 1997, BW interviewed Cliff Hall, the owner of the Metro News newspaper in Topeka. Hall, told us that subject No. 3 had taken out public notices in his publication. The ads were Freemen-style concoctions dealing with renouncement of citizenship and lien notices. Hall says the Secret Service came to his paper to obtain copies of the notices as a part of their investigation into the individual.
Subject No. 3 was also named in a document obtained by BW pertaining to a federal bank fraud investigation in Texas. The Texas case resulted in charges against several Republic of Texas persons including the antigovernment group's leader Richard McLaren.
In light of this documentation, it is unclear why the McVeigh and Nichols defense teams were told that the government had no information on subject No. 3. What is clear is that the FBI's claim was incorrect at best or fabricated at worst.
All three of the subjects above shared a common tie: the Freemen movement centered in and around St. Mary's, Kan. The subjects were well known to local law enforcement officials for their participation in common-law courts and for filing bogus liens and money orders. At least some of the subjects also shared religious beliefs.
St. Mary's is no ordinary town. Not only is it at the center of the Kansas Freemen movement, it's home to a religious complex well-known to those who monitor the radical right, including the federal government.
St. Mary's Academy and College, a 67-acre former Catholic school in St. Mary's, has been at the center of several controversies in recent years.
According to the May 1995 issue of Fidelity magazine, a Catholic publication, a former St. Mary's priest, by the name of Father John Rizzo, described an experience he had in the presence of Father Ramon Angles, the new rector of the parish and school at St. Mary's. Rizzo recalled that they were having an ordinary conversation when suddenly, "without any provocation whatsoever, he (Angles) got up and walked over to his bookshelf. He pulled out this huge book with the title, 'The Life of Adolf Hitler' and a big picture of Hitler on the cover giving his salute. He put it on the bridge of his nose, the same way a sub-deacon holds up the Book of the Gospels at a solemn high mass. He walked around the coffee table in his apartment, making the noise of a thurible. After he (Angles) sat down, he says: 'Well, Rizzo, what do you think of that? Isn't this great?'"
The St. Mary's Academy is a part of the Society of St. Pius X, a group of Catholics who became disaffected with mainstream Catholicism following what it perceived to be the liberal ideas put forth at the Second Vatican Council of the early 1960s. Some proponents of Pius X have been accused of denying the reality of the Holocaust, believing in a Jewish world conspiracy and forming militia groups According to Sheriff Jake Mauk, Father Angles of the St. Mary's Academy has, on a number of occasions, adamantly denied that he in any way supports the militias that are so prevalent in the St. Mary's area.
Even so, Fidelity reported that the FBI paid several visits to the Academy in the month following the Oklahoma City bombing.
The FBI's interest in the Academy was most likely sparked by the fact that Tim McVeigh was spotted on several occasions in the tiny town of St. Mary's in the week before the Murrah building exploded and that McVeigh's phone card was used to make at least one call to an academy employee. While none of the above connections between the three subjects prove anything, it should have added validity to the leads being given to the government, leads that, according to the information turned over during the discovery process, were apparently dismissed as unimportant.
So why did the FBI disregard and/or withhold this information from the defense attorneys? Perhaps the government didn't want to muddle its already strong cases against McVeigh and Nichols by presenting evidence about other persons' involvement that could confuse a jury, says one observer.
"I think without a doubt that the evidence that would have tended to include other participants was shunned in the McVeigh and Nichols trial because (government officials) had narrowed their focus to these two defendants and they were determined to set America's collective consciousness at ease with respect to the bombing," says Boulder attorney Lee Hill. Hill is a former federal prosecutor who now does civil defense work. And as a defense attorney, he's had his share of experience with this type of liberal "justice:" he's defense counsel for Leonard Peltier, the imprisoned leader of the American Indian Movement -- a defendant whose conviction was shown to have been, at least in part, a result of fabricated evidence.
Of course, it's a risky proposition to mess with evidence in a crime as scrutinized as the Oklahoma City bombing, even if it's as benign as not following potentially fruitful leads. But the gamble is a worthwhile one for the government: if evidence of prosecutorial misconduct arises after the verdict has been rendered, that verdict must pass a ridiculously strict test before it's overturned by appellate justices.
"When the misconduct is only revealed at the time of appeal, federal judges who weren't even at the trial examine the isolated items of misconduct and then set about second-guessing whether or not these were the dispositive issues for the jury. And that's nearly an impossible task," says Hill.
Indeed it seems to be: the wording of the law is tilted drastically in favor of the prosecution. It's up to the reviewing federal judges to decide that had the jury known about the withheld information during the trial it probably would have returned a different verdict. And the key word is "probably."
"If (the government) withheld exculpatory evidence, they set the stage for appeal," Hill continues. "But what they know is that even with that exposure, a jury verdict is likely to withstand direct findings of government misconduct. And so we see a situation where the government is able to shift the burden of proof to the defendants by securing a dirty verdict. The defendants suddenly have a higher threshold of proof than they originally did at trial. At trial, the government has the burden of proving guilt beyond a reasonable doubt. On appeal, the defendant has the burden of proving that if the misconduct had been corrected, the jury probably would have found the defendant not guilty."
In other words, it was more risky for the government to include all it knew about other participants in the bombing. It would have been harder to win a guilty verdict and a death sentence for Tim McVeigh, for example, because the jury would also be considering a great deal of damning -- and possibly conflicting -- information that pointed to several people who aren't in custody. And if the FBI ever got caught having withheld potentially exculpatory information from the defense teams, it would be highly unlikely that the misconduct would be able to overturn the verdicts already rendered.
After all, in Leonard Peltier's case, the defense proved beyond a doubt that the government's key piece of evidence linking the defendant to the deaths of two FBI agents -- a shell casing -- could not have been fired from the weapon the government contends was in Peltier's possession. The judge hearing Peltier's appeal "found reprehensible governmental misconduct in the Peltier trial," says Hill. "but he still couldn't get a new trial because of the way the law is written. He sat down and wrote a letter to the president requesting clemency for Peltier. I think that's a very graphic demonstration of the justice dilemma that occurs when government misconduct is only discovered after the verdict is in."
Which means that, in light of all the above, neither McVeigh nor Nichols are ever likely to be released into the general population on the basis of the FBI's obvious shortcomings in identifying everyone involved in the bomb plot to their defense attorneys. Nevertheless, the revelations can't help but taint the rest of the government's evidence.
"What we're looking at is ends-versus-means justice and that's inconsistent with American values. It's a dirty verdict if they did withhold the evidence," says Hill. "What we would prefer to see are righteous convictions delivered after a fair trial."
Albion Monitor March 4, 1998 (http://www.monitor.net/monitor)
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