Crime Library: Criminal Minds and Methods

Timothy McVeigh & Terry Nichols: Oklahoma Bombing

Nichols Appeal Denied

Terry Nichols
Terry Nichols (AP)

On February 13, 2001, CBS Online reported that the Oklahoma Supreme Court had dismissed Oklahoma City bombing conspirator Terry Nichols' request to remove the district attorney's office from the case. The move effectively cleared the way to resume Nichols' state prosecution. Previously, Nichols' attorneys had asked for the entire DA's office to be removed from the case following a ruling by the state Court of Criminal Appeals that upheld DA Bob Macy's disqualification, but the ruling did not disqualify Macy's staff over allegations of professional misconduct.

While dismissing Nichols' plea the high court found that the Court of Criminal Appeals "has exclusive jurisdiction in criminal cases." The previous October, District Judge Ray Dean Linder had ordered Macy and his assistants off the case because of public comments by Macy that were deemed a "blatant violation of the rules of professional conduct." Linder ruled that Macy had violated the rules of professional conduct as well as a gag order that prohibits anyone directly involved with the case from discussing it. Among other public comments, Macy had given an interview to CBS News in April, 2000 during which he stated: "I've sent several people to death row for killing one person. I certainly feel that death would be the appropriate punishment for killing 19 babies."

By December, the criminal appeals court had found that there was no evidence that Macy's assistants could not fulfil their responsibilities and that Macy's first assistant, John Jacobsen, "will be able to perform the duties of the district attorney if the district attorney is disqualified."

On Monday, August 04, 2003, Foxnews.com reported that a ruling had been handed down to prevent evidence concerning the deaths of eight federal law enforcement officers in the Oklahoma City bombing from being used by state prosecutors to help secure a death penalty against Terry Nichols. The report also stated that State District Judge Steven Taylor had denied a defense request to bar state prosecutors from seeking the death penalty for Nichols, but prohibited prosecutors from bringing in family members of the eight federal officers to testify during the possible penalty phase after Nichols' trial.

Defense lawyer Barbara Bergman had previously argued that jurors at Nichols' federal trial had already rejected the death penalty and that "seeking it again would expose him to the death penalty twice on charges arising from the same event." A state appeals court had already ruled that prosecuting Nichols on state murder charges following his federal conviction did not constitute double jeopardy.

FBI Evidence "Shoddy"

On Thursday, August 28, 2003, Associated Press reported that the FBI had started an internal investigation into the conduct and testimony of the crime lab's chief of scientific analysis during the Timothy McVeigh prosecution.

A 1995 transcript of a Justice Department interview had shown that Steven Burmeister had alleged that his lab colleagues had "performed shoddy work" in the McVeigh case, but later retracted several statements before appearing as a prosecution witness at the trial.

AP also reported that lawyers for some disgruntled FBI lab employees had sent a letter to Attorney General John Ashcroft in 2001 alleging Burmeister "may have been pressured to give false testimony in the case." No action was ever taken and the allegation was never divulged to McVeigh's lawyers.

The revelation concerning Burmeister, however, became an issue in the Oklahoma state murder trial of Terry Nichols as Burmeister had given key testimony against McVeigh and was originally slated to be a prosecution witness in the new trial for Nichols. Burmeister has since been withdrawn as a state witness.

The AP report described how "persons familiar with the investigation" told reporters that one of Burmeister's former colleagues had been contacted by the FBI regarding the incident. Frederic Whitehurst, the agent in question said: "I was contacted by my attorney and told that the FBI OPR was looking to talk to me about an OPR investigation on Burmeister."

FBI officials have since refused to discuss the investigation but FBI lab director Dwight Adams has said he considered Burmeister to be "one of the bureau's top lab experts." Adams denied that Burmeister was ever pressured to change his testimony saying: "He made the effort because he is such a meticulous, honest person that he wanted the IG report to be correct," Adams said. "He truly is one of our best."

A letter later obtained by AP shows that lawyers for FBI lab employees, including Whitehurst, wrote to Attorney General John Ashcroft just 10 days before McVeigh was executed in 2001, claiming Burmeister "may have given false testimony about key forensic evidence in the case." The FBI continues to deny the allegations.

The transcripts in question show Burmeister originally told the Justice Department in 1995 that one of his lab colleagues, unit chief Roger Martz, "erred in some examinations" he performed in the bombing of the Oklahoma City federal building. He specifically criticized Martz's decision to vacuum clothing suspected of holding "explosives evidence," calling it an "unqualified technique." In late 1996, Burmeister reversed the allegation stating: "I don't think he erred in any of these exams. I think he did an acceptable job there. I'm incorrect in saying that because I do believe the vacuuming technique, overall, is a qualified technique."

On September 5, 2003, Tim Talley wrote a report for Associated Press detailing how a judge had refused to dismiss state charges against Terry Nichols but said he would grant defense attorneys' request to move the trial outside of Oklahoma City.

The report described how State District Judge Steven Taylor had ruled that pretrial publicity in the case was not enough to deny Nichols a fair trial. Researchers testifying for the defense had said media coverage of the 1995 bombing and Nichols' federal conviction had "made it impossible to pick a fair and impartial jury in Oklahoma."

"I have faith in the system," Taylor said.

The defense had previously noted that Nichols' federal trial for the deaths of eight law enforcement agents was moved to Denver after a federal judge ruled that neither Nichols nor his co-conspirator, Timothy McVeigh, could receive a fair trial in Oklahoma.

Prosecutors argued that the trial, scheduled to begin March 1, 2004, should be held in Oklahoma County with jurors picked from a nearby county to "spare witnesses undue travel expenses and other hardships."

Defense attorney Rodney Uphoff urged Taylor to dismiss the case or postpone the trial date to allow publicity to die down. "This case is still as fresh, and as powerful and as compelling as it was back in 1996," Uphoff said.

According to FOXNews.com, District Judge Steven Taylor decided on Monday, September 8, 2003 to move the trial to the southeast Oklahoma city of McAlester, more than 100 miles from the bomb site, because of extensive pretrial publicity. It is to start on March 1, 2004.

 

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