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Judge Denies Defense Motions On Witnesses in McVeigh Case

By Tom Kenworthy
The Washington Post
DENVER

The federal judge presiding over the Oklahoma City bombing case Thursday denied motions by attorneys for Timothy J. McVeigh to exclude critical eyewitness testimony linking McVeigh to the rental of the Ryder truck used in the 1995 explosion that killed 168 people.

The ruling by U.S. District Judge Richard P. Matsch represents a significant victory for government prosecutors, who will rely to a great extent on a web of circumstantial evidence when the case against McVeigh goes to trial on March 31. A loss Thursday would have ripped a large whole in that web.

After two days of testimony, Matsch rejected defense arguments that identifications of McVeigh by eyewitnesses in Junction City, Kan., and elsewhere had been tainted by massive publicity and government manipulation, including the widely broadcast pictures of McVeigh leaving a county jail after his arrest.

"The bottom line is I do not find there is such suggestibility or impermissible influence," Matsch said from the bench. "This is the test, really: Would it be unreasonable for a fair-minded jury to believe their testimony?"

Prosecutors hailed Matsch's ruling as an important victory but maintained their case would have been strong enough to survive an adverse ruling. "It's a vindication of the government's techniques," Assistant U.S. Attorney Scott Mendeloff said. "It reflects very favorably on the approach we've taken."

Stephen Jones, the lead attorney for McVeigh, conceded the ruling was a setback to the defense, but said the motion to exclude the testimony was an "uphill battle" that still gave him an important tactical advantage. The two days of hearings, Jones said, gave the defense an invaluable sneak preview of key government testimony by both FBI investigators and eyewitnesses who had refused to meet with the defense.

"I'll take my acorns where I can find them," Jones said. "I found a few over the last few days."

The most important testimony that Matsch allowed to proceed will come from two employees of Elliott's Body Shop in Junction City, the Ryder outlet where McVeigh allegedly rented the bomb vehicle on April 17, 1995. McVeigh's attorneys argued that the identifications by rental outlet owner Eldon Elliott and mechanic Tom Kessinger had been unduly influenced by publicity and coaching by government investigators.

Other witnesses who also will be allowed to testify include a man who asserts he saw McVeigh refuel the truck north of Oklahoma City in the early hours of April 19; a racing-fuel salesman who says McVeigh inquired about purchasing highly explosive chemicals in the fall of 1994; a Kansas farmer who says he saw McVeigh and co-defendant Terry L. Nichols together that fall shortly before Nichols allegedly purchased 4,000 pounds of ammonium-nitrate fertilizer; and the farm-store manager who allegedly sold the fertilizer used in the massive bomb.

Nichols is to be tried separately after conclusion of the McVeigh case.

Attorneys for McVeigh and Nichols also previewed what is likely to be a pillar of their defense. They argued that procedures at the FBI crime lab in Washington were so sloppy as to invalidate testing of bomb residues found at the scene of the explosion and on McVeigh's clothing and personal effects.

The attorneys said a recent Justice Department investigation that found instances of sloppy evidence handling and lax procedures will aid their defense. "The government should be required to prove their methods are reliable," said McVeigh attorney Rob Nigh in urging Matsch to hold a pretrial hearing into the lab's procedures.

However, prosecutor Beth Wilkinson said the government's explosive-residue experts are world-renowned for their expertise. Notwithstanding any problems at the FBI lab, she said, "there is no evidence these items themselves were contaminated."