WASHINGTON — THE Oklahoma City bombing was the worst act of domestic terrorism in American history. Now, its prosecution is shaping up to be one of the greatest tests of American jurisprudence.
As early as today, federal prosecutors are expected to formally indict Terry Nichols and Timothy McVeigh in the April 19 bombing, and charge Mr. McVeigh's friend and former roommate, Michael Fortier, with lesser charges in return for his testimony.
The government will contend that McVeigh and Mr. Nichols, aided by as many as three others, conspired to blow up the A.P. Murrah Federal Building, an act that killed 168 people. Prosecutors will portray the bombing as an assault on the federal government itself - designed to destroy federal property, kill federal employees, and undermine the legitimacy of federal law enforcement.
The question is: Can the system that these defendants allegedly tried to destroy provide them with a fair and impartial trial?
Steven Jones, attorney for McVeigh, said in a telephone interview Tuesday that ''the rules of the game favor the government,'' and that from the outset, federal authorities have thrown up roadblocks to trip the defense.
Mr. Jones contends that investigators from the Federal Bureau of Investigation have used their control over the distribution of a $2 million reward to convince some witnesses not to talk to the defense. He says prosecutors used media leaks - like the news that charges might be filed against Terry Nichols's son, Josh - to bully suspects into cooperating.
Jones says it was unfair that a federal judge only allotted funds for three defense-team investigators while the government has hundreds of agents working the case. He argues that federal agents deliberately tried to ''demonize'' his client by parading him in an orange jumpsuit past hissing and booing spectators shortly after his arrest in the bombing.
While federal investigators say the suspects will receive a fair trial, Jones is not alone in his concerns.
Randall Coyne, associate professor of law at the University of Oklahoma, notes that before any suspects had been arrested, President Clinton and Attorney General Janet Reno called on prosecutors to seek the death penalty in the bomb case - an exceedingly rare penalty in federal courts.
According to Professor Coyne, that announcement was a clear violation of Justice Department guidelines. Citing an internal Justice Department memo penned three months before the bombing, Coyne shows that Ms. Reno specified that any decision to seek the death penalty in a federal case should be made by the United States attorney responsible - in this case Patrick Ryan of Oklahoma - only after defense attorneys were allowed to argue against it.
Jones says he was not notified of any death-penalty hearing until July 11, at which point he refused, calling the offer a ''charade.''
''We all know that [US Attorney] Pat Ryan isn't going to overrule the president and the attorney general,'' he says.
Otto Obermaier, a former federal prosecutor now practicing law in New York, says that by seeking the death penalty, federal prosecutors have afforded themselves another procedural advantage. Under federal law, he says, prosecutors have the right in capital cases to remove anyone who objects to the death penalty on ideological grounds. As a result, Mr. Obermaier says, juries in death-penalty cases are already far more likely to vote for death.
Yet, Obermaier cautions that the death penalty mandate could also backfire on federal prosecutors. Juries in capital cases, he says, tend to ''expect more'' from the prosecution.
According to Jones, the greatest test of federal impartiality will be whether a federal judge accepts a defense motion to change the trial's venue from Oklahoma City.
''This is a tight-knit community,'' Jones says, ''and it's hard to find someone who did not lose a friend or relative in the bombing.'' The idea of finding an impartial jury at the scene of the crime, he adds, is far-fetched.
Yet Columbia Law School professor and former federal prosecutor Gerald Lynch says the behavior of prosecutors is not a worthy test of federal impartiality. Federal attorneys, he says, are part of a chain of command that goes all the way to the attorney general and the president and, therefore, is subject to political pressure.
''In some ways, Janet Reno is the prosecutor here,'' Professor Lynch says. ''The prosecutor's role is to do what the people want, and, in this case, Americans want the bombers convicted. It's the judge and the jury that have a pure responsibility to justice.''
But perhaps the biggest hope for the defense is the federal case, which at this point is largely circumstantial. Aside from the testimony of Mr. Fortier, prosecutors have little physical evidence placing McVeigh or Nichols at the scene.
This week, the Oklahoma state medical examiner acknowledged that a severed leg clad in combat boots and military-style fatigues discovered at the bomb site has not yet been identified. Jones suggests it could belong to the real bomber. ''whether that will cast a shadow of a doubt to the jury,'' he says, ''I don't know.''
'The prosecutor's role is to do what the people want, and, in this case, Americans want the bombers convicted.'
- Gerald Lynch