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PREFACE TO THE NEW EDITION
Only a few weeks before Timothy McVeigh's scheduled execution, a new book was released with all the attendant hype and promotion and the demonizing media-driven sensationalism that have characterized the Oklahoma City bombing case since the first images of Tim McVeigh were telecast to the nation on April 21, 1995. Written by two Buffalo, New York police reporters and based on seventy-five hours of interviews with the condemned man, American Terrorist: Timothy McVeigh and the Oklahoma City Bombing purported to contain Tim's last and full confession—"complete, candid and no-holds-barred." And so it did, in a way. It was also Tim's final, but very vintage manipulation—of the world and of himself, his last-ditch effort to grab the microphone of history and transmit a heroic and very simple message: "Look at what one determined man can do." Unfortunately, Tim's last "confession" was untrue. But it also, as I shall explain, liberated me from the strictures our legal system imposes on any lawyer, and which is called attorney-client privilege. I am now, for better and for worse, free to tell all. I was Tim McVeigh's lead defender, an Oklahoma lawyer, court-appointed. I fought for two years to defend him against the grand jury's indictment—defend him, that is, not only against his Department of Justice prosecutors and in the court of public opinion, but, as I shall also explain, against himself. After the sentencing phase of the trial in 1997, I resigned from the case. Tim was incarcerated in the maximum security federal prison in Florence, Colorado, to prepare his appeals and await his fate, and I went home to Enid, Oklahoma, to pick up the tattered pieces of my law practice and to write a book about the case. The first edition of this book, Others Unknown, came out in the fall of 1998. I wrote that manuscript with one arm tied behind my back. As my collaborator and I put it early: "Under the rules of attorney-client privilege, almost none of my conversations with Tim McVeigh—neither their actual words nor their substance—can be divulged in this book. I can't tell you if McVeigh told me he actually drove the Ryder truck to Oklahoma City and set off the bomb or bombs, or if he helped the person or persons who did, or if he had any knowledge of it. Moreover, I can't tell you whether or not I believe the things he told me, or if I sometimes did and sometimes didn't. I can't even tell you if I ever put questions like these to him. In other words, if you, the reader, are reading this book to find out whether Tim McVeigh confessed to me, then I suggest you stop reading—right now—and let us go our separate ways." All this is now changed. I am now able to answer all these questions to the best of my ability. Attorney-client privilege has been waived, and it is Tim McVeigh, himself, who waived it. The law on the subject is quite clear and unequivocal. While I have included in an appendix a more sustained legal argument on the matter, it can be reduced as follows: "The privilege is waived when a client attacks his attorney's competence in giving legal advice, puts in issue that advice and ascribes a course of action to his attorney that raises the specter of ineffectiveness or incompetence." So wrote the Eight Circuit Court of Appeals in 1974, a unanimous opinion that has been upheld countless times since by the courts and the various state bar associations. Even the U.S. Supreme Court had noted as long ago as 1888: "It has been established law for more than one hundred years that a client who waives the privilege by leveling charges against his attorney cannot insist that his attorney remain silent." Tim McVeigh attacked my conduct of his defense. He did so most vehemently in April 2000 when his then-lawyers filed a motion for a new trial, based on a blistering all-out, fifty page attack on my competence that not only painted its wild allegations with the widest possible brush but impugned my integrity. The specific charges had one common denominator: that my over-riding goal, in conducting the case, had not been to defend and protect my client but to gather material for the book I was going to write about the case. I was ready then to respond in court, but in the fall of 2000, Judge Richard G. Matsch not only denied the motion but declined to even hold a hearing on McVeigh's claims. They were, he determined, without merit. Before the Tenth Circuit Court of Appeals could agree with him, McVeigh directed his lawyers to dismiss the appeal, suggesting that not even he truly believed it. And there the matter might have rested, had it not been for American Terrorist, the book, which gives new voice and widespread publicity to the same allegations. But since McVeigh, in dismissing the appeal, had deprived me of any chance to refute the allegations in testimony or cross-examination, he left me with no choice other than to put my response in writing. Nor has it been possible for me to answer his allegations simply, one by one. Rather it is in the context of a two-year process, when McVeigh himself, by his contradictions and obfuscations, thwarted the defense's efforts, that I must and do respond. In addition, I cannot in all conscience leave the last word on this most terrible and most human tragedy to Tim McVeigh, its self-styled perpetrator, or to the two journalists who in American Terrorist have served as his messenger. If the main thrust and narrative of my own book remain the same—it still tells the story of why our own Department of Justice fought so long and so hard to keep so many of the facts of the Oklahoma bombing from ever being aired—I have now filled in the blanks. Tim McVeigh and his chief prosecutor, Joe Harzler, who publicly stated that he wanted to send Tim to hell, had one thing in common to which they held with an unshakeable tenacity. Both publicly professed that Tim McVeigh was primarily responsible for the bombing and the 168 deaths that occurred in Oklahoma City on April 19, 1995. Both wanted desperately to say that McVeigh was solely responsible, but they couldn't quite get there. Either way, both were wrong. And either way, both knew they were wrong. Tim McVeigh wanted to believe it in part because, as he once told me, "If no one else is arrested or convicted, then the revolution can continue." He was convinced that in fifty years he would be seen as a hero, not unlike the men who had lived and died for our independence in the Revolutionary War. Tim could and did cite the Declaration of Independence from memory. He honestly believed that one day a statue commemorating him would be erected on the Mall in Washington, D.C. between the U.S. Capitol Building and the Washington Monument. He consistently describes himself not as a martyr but as a patriot. He also wanted the limelight, the credit. All the credit. He saw himself as the avenger. The old Chevy Geo he drove, until it gave out a few months before the bombing, he called the "Road Warrior." He wanted to go down in history as the one who had struck by stealth at the heart of government and had wreaked destruction and loss of life on an unimagined and unprecedented level. As for the loss of life, he viewed it as "collateral damage." Innocent civilians are killed in every war, he told me, and April 19, 1995, in Oklahoma City—the 220th anniversary of the Battle of Concord as well as the second anniversary of the Battle of Waco—was but another day in the ongoing struggle. Tim McVeigh wasn't dumb—not in the slightest—although it infuriated him when people thought he was. He could be very friendly, and he was intelligent, also manipulative, also cunning. From the first day I met him, on May 8, 1995, he worked purposefully to secure his place in history and, through his lies, to protect others who would survive his death. He used whatever tools he found to this end. He even tried to use me, and sometimes he succeeded. I will cite but one example among many. On May 17, 1995—that is, less than a month after the bombing and nine days after I had met Tim—a two-column front-page story by Pam Belluck appeared in the New York Times that began: "Timothy J. McVeigh has claimed responsibility for the Oklahoma City bombing, according to two people who have talked with him in jail since his arrest." The story became an international sensation. It was picked up almost everywhere over the next forty-eight hours. What's more, it was dead-on accurate. Most people, of course, assumed that McVeigh had confided what he'd done to fellow prisoners, who had then passed it on to the media, and neither the Times nor the defense saw fit to correct them. But the truth was that the source of the "jailhouse confession" was Tim McVeigh, who instructed me to talk to the New York Times on a background basis for reasons I will detail later. The two people who had talked with Tim in jail were none other than myself and an associate. Unfortunately, the authors of American Terrorist believed Tim when he told them, four years later, that I leaked the story because I "craved the nationwide publicity the case had brought me." The truth is that I did so because my client ordered me to. I have sitting before me now, as I write, a handwritten, two-page memo, signed and initialed "TJM" next to every paragraph, expressly authorizing me to "talk off the record and on background to NY Times," regarding, among other items, Tim's responsibility for the bombing. [The document is reproduced in the book.] As to why Tim wanted this, that is another story, one I can now tell. And I will in due course. Joe Harzler was different. Hard to like. Even his own colleagues kept their distance from him, and some actively disliked him. But he had an almost impossible task. The Department of Justice had evidence, very early, that others besides McVeigh and Terry Nichols had participated in the bombing. It should be remembered that the indictment they asked the grand jury for, and got, was against Timothy McVeigh, Terry Nichols, and Others Unknown, which became the title of this book. Soon after Harzler came into the case, he was stuck with "others unknown." He had James Nichols, Terry's brother, at the head of a list of suspects for the bombing and possibly enough evidence to indict him, but not enough admissible evidence to convict. He had Michael and Lori Fortier, active members of the conspiracy, but they were allowed to plea bargain. Another conspirator was dead before McVeigh was even arrested, and two or three others got lost in the mists of time and possibly a flawed investigation. And he—Hartzler—was stuck with John Doe #2. Early in the case, the elusive John Doe #2 was the subject of a national manhunt. For a while, the government thought they had him identified in the person of a GI, one Todd Bunting, but Todd Bunting, it turned out, had an ironclad alibi for the two key days in which witnesses claimed to have identified him. As I shall relate, not only did the government abandon Todd Bunting as a suspect, but a year and a half later, at a pre-trial hearing before Judge Matsch, they used him as "proof" that John Doe #2 had never existed! Another suspect also had a name—Robert Jacquez—but the government could never find him. Subsequently the hapless Hartzler was left defending the proposition that there were no other conspirators besides Nichols and McVeigh, and, to a lesser extent, the Fortiers. In other words, the way the prosecution's case evolved, "others unknown" had been a mistake. Others unknown had never existed. As I will now make clear, there was indeed a John Doe #2. I knew it from an unimpeachable source. Tim McVeigh. But just as Joe Harzler is stuck with John Doe #2, at least in the eyes of history, so was I stuck with my client. As I told Tim early in the case, "I do not represent your personality, your political views, or your friends or fellow conspirators. I represent you, Tim, and my duty is to protect your legal interests. Until such time as you tell me that you are willing to stand up and plead guilty, then I am required by my oath of office to do and say everything that I can for you, within the limits permitted me by my oath as an attorney, to secure your acquittal." In truth, Judge Matsch would never in a million years have allowed Tim to change his plea to guilty on Tim's terms, even had Tim agreed. But in a confidential memo my associate, Mike Roberts, wrote after a conversation with Tim on December 4, 1996, "Tim has told me he has the following four objectives at trial: 1) that the truth of the bombing come out; 2) that he be acquitted; 3) that he embarrass the government; 4) that after all the evidence is heard, the case remains a mystery." Strange to say, I, Tim's lawyer, knew that these seemingly contradictory objectives were not mutually exclusive. I believed that if the truth came out—the whole truth—then Tim would be acquitted of at least the capital charges, and that his acquittal would indeed embarrass the government, and, finally, that aspects of the case would remain a mystery. The whole truth? Let me phrase it this way. It is very hard for a lawyer in a criminal case to defend a guilty man whom the state can prove is guilty. I know, because I have done it many times. It is just as hard, I would say, to defend an innocent man whom the state can prove is guilty. But to defend a man who claims he is guilty—in unison with the state and the public—when a considerable body of evidence suggests that he is not guilty, that perhaps is the lawyer's greatest challenge of all. The United States v. Timothy J. McVeigh in my judgment falls into the latter category. I set out to find the whole truth. I did so despite the federal government's efforts to conceal it but in the face of my own client's insistence on blocking me at every turn. I did so at great expense—somewhere between $15 and $20 million of taxpayers' money—not because I sought to enrich myself (if so, I failed egregiously) but because I believed with all my heart and mind that my client, no matter how unwilling, no matter how heinous the crime of which he was accused, deserved the best defense I could possibly offer him. The story of Tim's defense—our strategies, our triumphs, our failures—remains substantially as it appeared in the original edition of Others Unknown. What is entirely new is what Tim told us, what we made of it, and how he sought, sometimes successfully, to maintain control of his own destiny. Obviously these new elements cast the entire story in a different light and clarify many of the events I had difficulty with in the original version, in view of the strictures of lawyer-client privilege. One major new piece is the chapter entitled "The Defense of One Known to be Guilty," which reviews in detail all that Tim told us in the very first days of our relationship. Another is the role of the enigmatic James Nichols, Terry Nichols's brother, who came to see me several times in the early days of the case. The full story of the lie-detector test administered to Tim at our insistence on August 31, 1995 is also told for the first time in a chapter entitled "The Polygraph Test." For reasons that will become obvious, I was never able to discuss it before. Also new are the details of confrontations I had with Tim early in 1997, when it became clear that what he had once told his defenders and what he now wanted from us were in full contradiction. We went to trial in the spring of 1997. I now concede, for the first time, that there was sufficient evidence presented to the jury and known to me that painted Tim McVeigh as a member of the conspiracy to bomb and destroy the Alfred P. Murrah Federal Building. But Tim, I resolutely maintain, did not receive a fair trial. More importantly, there remains significant reasonable doubt, in my mind, as to whether he himself committed murder. The jury, needless to say, didn't agree with me, nor did the general public, which appears to have welcomed the verdicts. Nor finally—for reasons that will now become very clear—did Tim. So be it. True to himself, Tim sought to maintain control of his fate to the very end. It was Tim who cut off the appeals process, Tim who asked that a date be set as early as possible for his execution. Once the two Buffalo journalists' book came out, and through their medium he got to proclaim his own version of the truth, there was presumably nothing left for him to do but die. Barring some unforeseen eleventh-hour event, Tim McVeigh will be dead by lethal injection on May 16, 2001, in the federal prison in Terre Haute, Indiana. We already know that the media, ever true to themselves, will have turned the event into a full-fledged carnival. According to a vice-president of CBS News, it already has a name: "Deathwatch." This too may be what Tim wanted, although, much as I shudder to think it, he might well have preferred that the injection itself be witnessed on international TV. Better demonization than oblivion. To borrow from Winston Churchill, the Oklahoma City bombing is a mystery wrapped in an enigma inside a riddle, and so it may always remain. But it is also likely to remain one of the significant events of our troubled times. For this reason above all, now that my former client has made his own last contribution to the historical record, I am compelled to do likewise. Stephen Jones April 2001 |
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PAPERBACKISBN 978-1-58648-098-1 Pub date: 04/27/01 Price: $15.00/22.95 Canada 6-1/8X9-1/4 416 pages American Studies, Biography, History Selling Territory: USCOM Pub history: PublicAffairs hc
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