Other than that, I'm not sure there is a lot to report about Oklahoma's efforts to convict Nichols and have him sentenced to death for his role in the April 19, 1995, bombing that killed 168 people and wounded hundreds more in the Alfred P. Murrah federal building. After nearly a week's worth of testimony from prosecution witnesses, the state murder case against Nichols seems no stronger than was the federal murder case against him brought nearly six years ago. That earlier case, remember, resulted in Nichols being acquitted eight times of first- and second-degree murder.
Some of the government's witnesses, like characters in a "Where Are They Now?" television special, have come back into the spotlight to repeat their stories about what they did and did not see in the months, days and hours before McVeigh blew up the building. Some seem to have altered their stories somewhat. And there are some new cast members in Nichols the Sequel — witnesses who are being relied upon by Oklahoma prosecutors even though there were passed over years ago by the federal attorneys who went after Nichols in Denver.
In the first category, you have people like Eldon Elliott, the poor man who rented the yellow Ryder truck that McVeigh and perhaps Nichols eventually made into a truck-bomb filled with explosives that April. Elliot seems just as sure now as he was during the Denver trial that he rented the truck to McVeigh. And, more importantly for current purposes, he seems just as sure now as he was then that Nichols wasn't with the late bomber. Quarry driller Allen "Bud" Radtke, meanwhile, testified now as then that explosives ultimately used in the bombing were stolen from his business in Kansas at a time when Nichols lived only a few miles away. These are links in the state's circumstantial chain of evidence against Nichols — but they are hardly the coups de grace against him that prosecutors normally would need in a capital case.
In the second category, there is Nichols' ex-wife, Lana Padilla. Although she confirmed that Nichols had left an incriminating letter for McVeigh six months or so before the bombing, she also made it clear that she is testifying for Oklahoma against her wishes. And she repeatedly said that she couldn't remember important parts of the story she had delivered in Denver. "I believe you are being purposely evasive," District Judge Allen McCall eventually told Padilla. "I'm not going to tolerate it much longer." Lost amid this drama was the fact that the letter that prosecutors say links Nichols to McVeigh also has Nichols telling McVeigh: "Your (sic) On Your Own."
And in the final category, as new characters in this saga, fall people like Jerry Knapp and Ruth Hailey and Oklahoma City police Sgt. Mike McPherson. Knapp testified this week that Nichols had inquired during a telephone call in March 1995 about buying a trailer to haul 55-gallon barrels. Hailey told the court that she saw a Ryder truck behind Nichols' home just before the bombing — but her in-court testimony contradicted a written version of it memorialized by the FBI just after the bombing. And Sgt. McPherson testified that the bomb was made of fertilizer, a conclusion that essentially tells the world what the world has known for over eight years. There also were witnesses not used in Denver who told Judge McCall about Nichols' anti-government feelings.
One of the many questions hanging around a state trial for Nichols is whether Oklahoma officials will be able to present a stronger evidentiary case than the federal government did in 1997 with the benefit of what was then the largest criminal investigation in the nation's history. Put another way, has Oklahoma discovered a more direct link between Nichols and the bombing since the first Nichols' trial ended in January 1998 that would warrant the financial and psychological costs of re-trying Nichols and pushing for a death sentence? So far, one week into the preliminary hearing, the answer is a resounding "no."
Now, just because Oklahoma is walking in the footsteps of the feds doesn't mean that Nichols won't be convicted and sentenced to death in a state where people make no bones about what they think ought to happen to him, trial or no. But if Oklahoma can do no better than the feds did and still come away with a death penalty for Nichols it will further strengthen the argument that defense attorneys are sure to make after his trial if, as expected, an Oklahoma jury throws the book at him. That argument posits that Nichols could never receive a fair trial in such a small state so greatly traumatized by the events of April 19, 1995. Incidentally, that's precisely the same argument that a federal judge used in 1996 when he ordered the case transferred from Oklahoma to Colorado in the first place.
By Andrew Cohen