McVeigh's "lost" receipt "found"
10/10/2002

By J.D. Cash, Copyright 2002 by McCurtain Daily Gazette

A long-lost document representing an important piece of the Oklahoma City bombing puzzle is now part of the Office of Inspector General's probe of FBI evidence foul-ups in the controversial $82 million OKBOMB case, this newspaper has learned.

The evidence scandal erupted last spring and temporarily delayed Timothy McVeigh's execution. Today it threatens the federal conviction and sentencing of co-conspirator Terry Nichols.

Months ago, the Inspector General was directed by Attorney General John Ashcroft to find out why so many FBI agents failed to properly account for more than 4,000 pages of evidence wrongly withheld from the defendant's lawyers in the Murrah bombing case.

As part of that investigation, the McCurtain Daily Gazette has learned agents of the Inspector General have located a motel registration - stashed away for six years - that provides the best evidence yet of where McVeigh really was on the day a federal grand jury said the conspiracy to bombing the federal building likely began: September 13, 1994.

The Gazette received this information from the FBI in response to a Freedom of Information Act request. Until now, the agency had not publicly commented on any specific pieces of "missing" evidence, reportedly discovered in file cabinets from Los Angeles to Paris.



Years of Costly Mistakes



Problems with the case simmered and hit the newswires on May 10, 2001, when the Department of Justice announced the discovery of some 3,000 pieces of additional evidence in the McVeigh/Nichols cases. The majority of those documents were characterized as eyewitness accounts so-called John Doe No. 2 witnesses.

With only six days remaining before McVeigh's scheduled execution in Terre Haute, Ind., federal officials in Washington, D.C., admitted the evidence had been processed by FBI agents as far back as April 19, 1995, but inexplicably withheld from the lawyers. Days later, another 1,000 pages were discovered.

Around the country, defense lawyers and members of the media cried "foul."

Amid a whirlwind of bitter accusations from victims' families and members of Congress, a red-faced Ashcroft reluctantly granted McVeigh a 30-day delay of his execution. This was time, he explained, that was necessary for the condemned killer to consult with attorneys.

Ashcroft said he doubted anything in the reports was important, though.

Other Justice Department officials even denigrated the value of the documents, referring to them as "Elvis sightings."

Even though he'd recently cancelled all his appeals and endorsed a book that claimed he had confessed to the crime, McVeigh was reportedly enjoying the uproar, watching the spectacle unfold on a black-and-white set in his cell. He told lawyers to proceed with appeals for a new trial. His long planned sacrifice for martyrdom could wait.

Terre Haute was put in limbo. Millions of dollars and weeks of preparations invested by the international media hung in the balance.

"Bloodstock" was how author and criminologist, Professor Mark Hamm of Indiana State University, described the green pastures filled with media trucks and brightly colored tents.

Rocked by the scandal, reporters wandered aimlessly, sipping beer and speculating what might come next.

But 11th-hour appeals by McVeigh's legal team failed to convince judges that the new evidence would have changed the outcome of his trial.

On June 11, McVeigh was executed by lethal injection. There would be no more revelations of his referring to his victims as "collateral damage" and "dead babies."

Appeals by Nichols' attorneys about the documents have proved just as futile. But a crack may have surfaced.

The Supreme Court has thus far snubbed Nichols' arguments for a new trial. But earlier this month his lawyer went to the 10th U.S. Circuit Court of Appeals in Denver with a different tactic.



John Richilano asked the three-judge panel to order a hearing to allow physical examination of thousands of additional documents the FBI has also failed to produce for the defendant.

At least one member of the 10th Circuit seemed persuaded when it was revealed there were now 36,000 pages of eyewitness statements, called "lead sheets," that had never been reviewed by anyone outside the investigation.

Judge Baldock queried counsel for the government: "Why shouldn't you, as the government, if you're conceding there are so many documents, afford somebody the opportunity to look at them?"

Prosecutor Sean Connelly countered, "They've already had their day in court on that."

A decision on the argument could be several weeks away.

Central to this, of course, is the suspicion that some of the evidence might exonerate Nichols of a crime for which he has begun serving a life sentence.

Alternatively, the evidence could establish guilt of others. Or the truth could be somewhere in between.

Unlike the perfunctory deliberations at the McVeigh trial, jurors in the Nichols' case struggled for days, then could only agree on a verdict of manslaughter and conspiracy, throwing out first and second-degree murder indictments.

The case was so close that a juror afterward said the initial vote had been 10-2 for acquittal. And the hand wringing had only begun.

After several days of arguing over a penalty, jurors tossed the case to the trial judge, admitting they were hopelessly deadlocked on sentencing.

U.S. District Judge Richard Matsch accepted the responsibility and levied a life term for Nichols' role.

As soon as jurors were released from service, some openly questioned the thoroughness of the FBI investigation. The forewoman commented bitterly, "The government really dropped the ball here."

Today, Nichols is biding time in the Oklahoma County Jail, waiting to see if he will be tried in Oklahoma for an additional 160 murders.

The only other man the government has publicly linked to the crime, Michael Fortier, accepted a negotiated plea deal for his testimony against McVeigh and Nichols. Fortier is serving out the balance of a 12-year sentence for lying to the FBI, transporting stolen property, and failing to notify authorities of the bomb plot ahead of time.

As part of the deal, Fortier testified McVeigh came to Kingman, Ariz., looking for a volunteer to help in an all-out war with the government. Fortier claimed he told his ex-Army pal, "No, thanks!"

The trial transcripts reflect Fortier's memory was hazy about the precise date of this visit. But Fortier's telephone records and supporting FBI interviews indicate McVeigh is the most likely person to have made a four-minute call from the Fortier mobile home at 6:48 p.m. on Sept. 8, 1994. The call was to a ranch house where Nichols lived in central Kansas.

Fortier testified that after a two-day stay, McVeigh left Arizona for Kansas, presumably to see Nichols about the plan.

'Lost' Evidence May Prove To Be Critical

The evidence the Gazette has confirmed makes it highly unlikely McVeigh traveled directly from Kingman, Ariz., to central Kansas to be with Nichols, as jurors in both trials were led to believe.

A motel registration that was not available at either trial indicates McVeigh almost certainly drove straight from Arizona to eastern Oklahoma.

On arrival, McVeigh used his own name when he checked into a $17-a-night room at the El Siesta in Vian.

And most important: All this happened on the evening before the bombing conspiracy was allegedly hatched.

This El Siesta registration also establishes that McVeigh was only minutes from a place for which the FBI has long claimed it had no hard evidence of involvement in the bomb plot - Elohim City, a Christian Identity compound.

Replying to this newspaper's Freedom of Information Act request for a copy of the El Siesta motel receipt with McVeigh's registration information, an FBI official acknowledged that the Office of Inspector General was conducting an inquiry into a motel registration of McVeigh's, dated Sept. 12, 1994, along with "internal FBI communications concerning the discovery, archiving, and production of documents and materials related to Tim McVeigh/Photocopy of a motel registration/dated 9/12/94."

Stay Rumored for Years

McVeigh's first attorney, Stephen Jones, in his book, "Others Unknown," wrote that his client was at the El Siesta during this period.

But the information Jones relied on was discovered through his own investigation and not from anything the FBI turned over to his team. That book was not published until after the Nichols' trial.

In 1996, the Gazette learned of the stay from a source closely associated with the FBI's investigation of the bombing. But confirmation from the hotel's owner was conditioned.

The problem was this: After the owner found the McVeigh receipt, no copies were made before the FBI seized it. The owner of the El Siesta said an agent also took away all the guest records for that period. None were returned.

At trial, Jones may have opted not to delve into this area for various reasons. McVeigh had been firm about protecting others. Also, Judge Matsch ruled out inclusion of any "conspiracy theory evidence," or links that loosely connected McVeigh to Elohim City, and radicals who lived and trained there. Finally, Jones had no physical evidence to introduce.

In what is considered one of the most controversial decisions of the McVeigh trial, Judge Matsch refused to allow Carol Howe, an informant for the Bureau of Alcohol, Tobacco and Firearms, to testify at all about contents of her official reports.

Howe's documents alleged people at the Elohim City compound were openly discussing a plot to start a war with the government.

The records establish two trips to Elohim City in September 1994 for Howe. In fact, she was present on the 12th and 13th. In subsequent ATF reports forwarded to Dallas and Washington, D.C., Howe alleged men deeply involved at Elohim City actually cased federal buildings in Oklahoma City and Tulsa, only months prior to the April 19 attack. Matsch allowed jurors at McVeigh's trial to hear none of it.

When Nichols went on trial, his lawyers faired somewhat better. Ms. Howe did take the stand. But during a heated exchange in chambers beforehand, Matsch warned Nichols' lawyers they could not let in any testimony that would tip-off jurors that Howe was working as an ATF informant while she was at Elohim City in combat gear, detonating explosives and shooting her AK-47.

The result was predictable. Prosecutors portrayed Howe as just another radical with a Nazi tattoo.

Her credibility damaged - and official reports barred - there was not much left. About all Howe was permitted to tell the jury was she had seen McVeigh at Elohim City, walking through the compound with Andreas Strassmeir.

Any additional corroboration of McVeigh's connections to the radical camp was not in defense attorneys' hands but remained in the hands of the FBI.

Recently, a source with the Nichols' defense team acknowledged attorneys were in the dark about the motel receipt and certainly would have used it in Denver had they known it existed.

An attorney who worked on the case commented, "Had they (prosecutors) shared that with us, it would be in evidence."

Telephone records and payroll records from Nichols' employer establish that Nichols was working on the Hayhook Ranch in central Kansas the entire week of Sept. 11 through 16, 1994.

The Inspector General is expected to release the findings of the investigation within the next 90 days.

Final Note: A member of the federal grand jury that heard evidence in the bombing case, said the date, Sept. 13, 1994, was inserted in the final report and then presented to the panel for signatures without any explanation from government prosecutors.