PART SEVEN OF EIGHTEEN:

On August 10, 1995, a Federal Grand Jury sitting in the Western Judicial District of Oklahoma returned an eleven count Indictment accusing Timothy James McVeigh and Terry Lynn Nichols of conspiring to use a weapon of mass destruction, actual use of a weapon of mass destruction, destruction by explosive, and eight counts of first degree murder. (Indictment in CR95-110, filed August 10, 1995, no docket number assigned).

The Indictment alleges that McVeigh and Nichols constructed a truck bomb and on April 19, 1995, McVeigh parked the truck bomb directly outside the Alfred P. Murrah Federal Building during regular business and day-care hours. The Indictment then lists the names, spread out over six typewritten pages, of the persons present at the Alfred P. Murrah Federal Building on the morning of April 19, 1995, and who were killed as the result of the explosion. The Grand Jury found evidence that Timothy McVeigh and Terry Nichols conspired and agreed together with "others unknown to the Grand Jury" to use a truck bomb against the federal government, and specifically against the Alfred P. Murrah Building located at 200 Northwest 5th Street in Oklahoma City, Oklahoma, which resulted in the destruction of the building, grevious [sic] bodily injury to scores of persons, and the death of 168 persons. See Indictment at 1-2. This Indictment has never been withdrawn or modified.

Thus, the Grant Jury's allegation on the eve of trial is that this crime was committed and aided by "others unknown." By refusing to provide the requested discovery material, the government is attempting to prevent the Petitioner from learning the identity of what it calls "others unknown" but which the petitioner characterizes as "the unknown others."[8]

During the period of time that motions were pending for recusal of Judge Alley, Judge Alley refused to entertain or rule on any discovery requests by the Defendant. Thus, the government had an almost 4-1/2 month period after the return of the Indictment on August 10, 1995, in which it ignored existing judicial rules and took advantage of Judge Alley's statesmanlike decision not to rule on matters before him while motions for his recusal were pending. The government provided a microscopic amount of discovery consisting primarily of "statements of the Defendant" as required by the Federal Rules and access to some physical evidence.

In early January 1996, the government furnished Defendant's counsel all of the 302's then in existence concerning the following witnesses: Michael and Lori Fortier, Jeff Davis, Lea McGown, Vickie Beemer, Eldon Elliott, Tom Kessenger, and one Oklahoma City witness, Daina Bradley. However, before furnishing this information, the prosecution, in a letter to the defense claimed that the prosecutors had personally reviewed the 302's and that nothing in them was exculpatory. See D.E. 1923 (Exhibit "X'). This claim was fantastic and incredible on its face and totally incorrect. Each of the statements contained highly exculpatory Brady material and not just Giglio material. The government then proposed an oral reciprocal discovery agreement with the Defendant in which witness statements would be exchanged except for those witness statements taken by lawyers, even though FBI agents or defense investigators might be present.

The government also failed to provide Grand Jury testimony until prodded by the district court which directed the government to produce, first, the Grand Jury testimony of Michael and Lori Fortier. Finally, the government turned over Grand Jury testimony approximately four months before trial.

Massive litigation and hearings were required before the government turned over all FBI documents (or at least it represents that it has turned all of them over) relating to the Federal Bureau of Investigation Laboratory when the government prosecutors knew that serious allegations were being made and that an investigation was being conducted by the Inspector General which later validated a significant number of the allegations with respect to the handling, collection, analysis of evidence from the bomb site.

The government also delayed producing 302's, in some cases, more than a year after the 302 had been typed. The government's claims thus that it has produced unprecedented discovery are specious. It can be summarized as follows: The government gave the Defendant 100% of that which is irrelevant and withheld 95% of that which is relevant until, either by Court order or the threat of judicial action, it grudgingly began to flow the information to the Defendant, more than a year after the return of the Indictment. These assertions by the Defendant are well documented in the trial record below. See, e.g., D.E. 1310;1918.

The theory of the prosecution in this case, not the Grand Jury's theory, is that the two named Defendants constructed a simple device capable of toppling a nine-story building at a public fishing lake and that one of them transported this device over two hundred miles without blowing himself up.

That is the heart of the prosecution's case. Any evidence concerning the participation of others, the complexity of the device, or foreign involvement takes away the heart of the government's case and there is therefore an institutional interest on the part of the government in keeping such evidence shielded from the defense and the public. But unfortunately for the government such evidence exists. One of the core allegations in the Indictment is that Timothy McVeigh rented a Ryder truck at Elliott's Body Shop in Junction City, Kansas. The evidence, however, negates McVeigh's presence and suggests instead the presence of two other suspects.

A. Elliot's Body Shop.

The government's theory is that Timothy McVeigh rented a Ryder truck from Elliott's Body Shop using the name "Robert Kling." However, three employees of Elliott's Body Shop each informed the FBI that "Kling" was accompanied by another man. Eldon Elliott met Robert Kling on Saturday, April 15, 1995, at approximately 8:45 a.m. See D.E. 1081 Exhibit "D." On this day, Kling was by himself, gave Elliott $281 to rent the truck, and told Elliott that he would pick the truck up on Monday at about 4:00 p.m. When Kling came into Elliot's on Monday there was, according to Elliott, a second individual with him. Id. at 2. Elliott described the person with Kling as a white male, 5'7" to 5'8", and wearing a white cap with blue stripes that headed front to back. He described Kling as a white male, 5'10" to 5'11", 180 to 185 lbs., with a medium build. Id.

Vicki Beemer, then the bookkeeper and counter clerk at Elliott's, told the FBI on the day of the bombing that a contract to rent a truck was executed on Monday, April 17, 1995 with Robert Kling. Id. (Exhibit "A"). She verified that Kling had reserved the truck and prepaid the contract with cash. Beemer told the FBI that she recalled a second person accompanying Kling but that she had no specific recollection of that individual. She stated that while she processed the contract another employee named Tom Kessenger was sitting in the office watching. Id.

Kessenger initially told the FBI that two males came into Elliott's and initiated a conversation with Vicki Beemer concerning a rental truck. See D.E. 3240 at 7, 10 (Hearing on Motions to Suppress Eyewitness Identification--Volume I, February 18, 1997). Kessenger stated that Robert Kling was accompanied by the individual that later became known worldwide as John Doe 2. Id. at 10. He described this person as wearing a black t-shirt, jeans, and a ball cap colored Royal blue in the front and white in the back. Id. at 11. He also stated that John Doe 2 had a tattoo on his upper left arm. However, Kessinger has testified that a year and half after he first saw John Doe 2 at Elliott's Body Shop, the government convinced him that he had made a mistake and identified another person who rented a truck on April 18, 1995. Id. at 15-16. He described Kling as 5'10", weighing 175 to 185 lbs., green or brown eyes, and with a rough complexion or acne. Id. at 9; D.E. 1458 (Exhibit "F)."

Although Elliott and Kessenger may have been describing the same person they saw and knew as Robert Kling--it is clear that neither was describing Timothy McVeigh. At the time that McVeigh was booked into the Noble County Jail on April 21, 1995, he weighed 160 lbs., stood 6'2", his eyes were blue, and his complexion was clear. See D.E. 1457 at 6. In addition, the government and defense both have, and it has been referenced in open court proceedings, a video tape of the accused at McDonald's on I-70 in Junction City, a mile and a third away from Elliott's Body Shop. The accused is seen at McDonald's between 3:55 and 4:00 p.m. wearing clothes completely different from those ascribed to Robert Kling. The accused is supposed to have traveled the 1.3 miles on foot, in less than 20 minutes, and somehow or the other along the road, changed clothes.

B. Oklahoma City Eyewitness.

The government has announced that it will not call a single identification witness from Oklahoma City. The government has declined to do so for a very good reason--all of them undercut the government's theory of the case; perhaps none more so than the dramatic story of a young woman who was trapped in the rubble of the Murrah Building, had to have a leg amputated, and lost her mother and two children in the bombing. Her sister was also injured but survived. See D.E. 2191 (Exhibit "Y"). She was first interviewed by the FBI on May 3, 1995, at the hospital and then again on May 21, 1995.

She was also interviewed by the Defendant and several reporters. Her story is consistent in all accounts. She stated that she left her home in Oklahoma City at approximately 7:15 a.m. on the morning of April 19, 1995, to go to the Social Security Office. She went with her mother, two children, and her sister. Id. She recalled standing in the lobby of the Social Security Office in the Murrah Building near a large window facing Fifth Street when she looked out the lobby window and saw a Ryder truck pull into a parking place in front of the building between two cars. After the truck parked, she then observed an individual exit the passenger side of the Ryder truck and start walking away. She stated that she observed a side view of the person and described him as an olive-skinned (he looked also like he was tanned), white male, wearing a baseball cap with black, clean cut hair, with a slim build and also wearing jeans and a jacket. She observed the man walking very fast, heading west, toward Harvey Street. Id.

The next thing she remembered was feeling what she described as electricity running through her body and then falling into rocks. While she was in the hospital convalescing from her injuries, the FBI showed her a sketch consisting of frontal view of a man wearing a hat--John Doe 2. She told the FBI that the unknown male that she saw looked similar to the man in the sketch. D.E. 2191 (Exhibit "Y" at 2).

C. Jeff Davis.

The government contends that "Robert Kling," the same person who rented the Ryder truck from Elliott's Body Shop and who is alleged to have been Timothy McVeigh, placed an order for Chinese food at the Hunam Palace Restaurant in Junction City, Kansas, on April 15, 1995. D.E. 2166 at 13. The telephone call to the restaurant allegedly originated from room # 25 at the Dreamland Motel which was the room allegedly occupied by a guest who claimed to be Timothy James McVeigh.

The restaurtant [sic] dispatched a delivery driver, Jeff Davis, to deliver the order to room # 25 at the Dreamland Motel. Davis has been interviewed several times by the FBI and has consistently maintained that the person he delivered the food to was not Timothy McVeigh. See D.E. 2482 at 10, Exhibit "P." Davis has described the person to whom he delivered the food order as having hair that was "unkept." Timothy McVeigh, a decorated Gulf War veteran, keeps his hair short and neat. Davis recalled that the person at the Dreamland had a very slight overbite. Timothy McVeigh does not have an overbite. Davis recalled that the person at the Dreamland had a regional accent, possibly from Oklahoma, Kansas or Missouri. Timothy McVeigh was born and raised in New York. Davis has stated to the FBI point blank that the person he saw and heard at the Dreamland Motel four days before the bombing of the Murrah Building was not Timothy McVeigh. In addition, although the government contends that Timothy McVeigh occupied room # 25 at the Dreamland Motel, his fingerprints were not found in the room. D.E. 2482 (Exhibit "GG").

In addition, there is evidence that a Ryder truck was seen at the Dreamland Motel-only it was seen on Easter Sunday, April 16, 1995, by at least four witnesses, Eric and Lea McGown, David King, and King's mother--one day prior to Monday, April 17, 1995, the date the government alleges that Timothy McVeigh and John Doe 2, using the name "Robert Kling," rented a Ryder truck from Elliott's Body Shop. D.E. 2191 at 36-37. The date is indelible in the memory of Lea McGown, the manager of the Dreamland Motel, because she leaves her hotel only twice a year--at Christmas and Easter. April 16, 1995 was Easter Sunday. Id. None of the individuals have been interviewed by the Defendant, but several have been interviewed by the media and their statements are a matter of public record.

D. Frederick Schlender.

The government alleges that Terry Nichols and Timothy McVeigh purchased two tons of ammonium nitrate fertilizer from a farm cooperative in McPherson, Kansas. See Indictment at 3, 4. The government's theory is that the 4,000 lbs. of ammonium nitrate purchased at the McPherson Co-Op was used as a component of the bomb that destroyed the Murrah Building. See D.E. 2166 at 9 (Hersely Grand Jury at 45). Two separate purchases are alleged--one on September 30, 1994 and another on October 18, 1994. See Indictment at 34.

Frederick Schlender was employed at the McPherson Co-Op during the time of the purchases of the ammonium nitrate. See F. Schlender Grand Jury Transcripts at 6-9. No employee at the Co-Op is able to describe the individuals who made the September 30, 1994, purchase. In his interviews with the FBI and in his testimony in open court, Schlender was able to recall the two men who made the purchase on October 18, 1994, as well as the vehicle used to transport the ammonuim [sic] nitrate. D.E. 3263 at 606 07.

He recalled that the purchase was made by two men driving a pickup truck with a red trailer hitched on the back. Although he gave a description of the pickup truck that was inconsistent with the truck owned at the time by Terry Nichols, and neither Defendant owned or used a red trailer, he was able to recall that the driver of the truck may have been Terry Nichols, but stated unequivocally that neither the driver nor the passenger was Timothy McVeigh. D.E. 3263 at 613, 659. The witness testified to the same facts at an open court hearing.

The government claims to have a receipt with Tim McVeigh's fingerprints on it. This receipt allegedly is for the purchase of ammonium nitrate. Leaving aside the question that it is highly debated whether the bomb in fact was made of ammonium nitrate, since clearly Mr. McVeigh was not present when the ammonium nitrate was purchased, it is possible it was purchased by Terry Nichols for innocent reasons (the government has evidence that Terry Nichols packaged ammonium nitrate in small bags and sold them at gun shows) and that Mr. McVeigh, an acknowledged friend of Mr. Nichols, may have in fact innocently touched or handled the receipt.

E. Legal Significance of the Existence of "Others Unknown."

Even if, for purposes of this Petition, one assumes that Terry Nichols was involved in the planning and/or commission of this crime, there are possibly as many as four others still unknown. The identities of these persons may be the difference between a conviction and an acquittal in this case, are literally a matter of life and death, are not explained by the government, and the defense believes that, in light of the massive federal resources devoted to this case by the government, the government possesses information which would shed light on the identities of these persons. But Absent a direct court order compelling the government and its agencies to produce the information to the defense, the truth will never be known. The bureaucratic instinct for self-preservation and the institutional pressures for a neat and tidy conviction in this case ensure that, in the absence of coercion from this Court, information vital to the defense will simply never see the light of day.

[CONTINUED IN PART EIGHT]

[8] The government has claimed below, and will undoubtedly assert here, that it has provided "unprecedented discovery" and gone far beyond what the rules and case law require. That claim is hollow and empty. Chief Judge David Russell of the Western Judicial District, before the return of the Indictment, attempted to schedule a discovery conference in order to facilitate the orderly flow of discovery, but the government refused to attend. The defense was willing to attend. Upon the return of the Indictment, the standing orders of the Federal Judges in the Western Judicial District, where the case was pending, were blithely ignored. The dear mandate of former Chief Judge Daugherty's orders, which are precedent in the Western District and found at United States v. Penix, 516 30 F. Supp. 248, 255 (W.D. Okla. 1981) were ignored.