The government's case against Oklahoma City bombing suspects Timothy McVeigh and Terry Lynn Nichols could begin to unravel if a federal judge agrees to toss out crucial evidence against the pair.
In oral arguments set for today, defense attorneys will try to convince US District Judge Richard Matsch that federal investigators violated their clients' constitutional rights in the early stages of the blast investigation. At issue are the admissibility of statements made by Mr. Nichols and items seized from his vehicle and Herington, Kan., property.
"If you suppress all the information in question, it dramatically decreases the likelihood of a successful prosecution of Terry Nichols," says Scott Robinson, a Denver criminal defense attorney. The case against Mr. McVeigh could also be somewhat weakened, he adds.
While legal precedents indicate that Judge Matsch won't throw out relevant evidence, this ruling is being watched closely. Circumstantial evidence is a large part of the government's case - and each piece plays a vital role.
A central question for Matsch is whether statements Nichols made during a nine-hour FBI interrogation were improperly obtained. At a recent hearing in Denver, Michael Tigar - lead attorney for Nichols - pointed a finger at federal agents for questioning Nichols without informing him they'd received a warrant for his arrest.
According to testimony at the hearing, the sequence of events two days after the bombing went like this: Nichols voluntarily came in for questioning at Herington police headquarters, saying he'd heard his name mentioned in news reports. Investigators assured Nichols he was not a suspect in the bombing. Nichols was then asked to sign a Miranda waiver, which spells out the Fifth Amendment privilege against self-incrimination, but he refused to do so. Investigators say Nichols verbally acknowledged that he understood his rights.
Nichols then spoke freely during an interview with FBI agents. Shortly after the interrogation began, however, a warrant for Nichols's arrest was issued. Agents continued the interview without mentioning the warrant, only placing Nichols under arrest when he stopped talking. By this time, seven hours after the warrant was issued, Nichols had made statements that the defense considers damaging.
Mr. Tigar maintains that Nichols might have opted for legal counsel if he'd been informed of the arrest warrant. But one of two FBI agents present during the initial questioning testified that it isn't necessary to immediately arrest someone when a warrant is issued.
Christopher Mueller, a law professor at the University of Colorado, says the law sides with the government on this point. "There's no obligation to tell him about an arrest warrant. It's not unusual for police to question someone without arresting them."
Still, there may be a legitimate issue regarding the Fifth Amendment guarantee against self-incrimination, says Mr. Robinson, a partner at Gerash Robinson & Miranda. "The law says you don't have to execute an arrest warrant. But the question is, would Nichols have asked for counsel if he had been told of the arrest warrant? This is a gray area."
That's not to say the defense is likely to win the suppression motion. "From a common-sense and moral standpoint, it seems like the defense has put together a pretty good case," Robinson says. "But the defense has major obstacles: The legal standards [for suppression] approach the insurmountable."
The defense is also contesting 24 searches of the Nichols property, including one conducted without a warrant. They say seized articles - including military-style ammunition cans and fuel cans - should be disallowed as evidence. Because Nichols was a dealer in military surplus items, the presence of ammunition cans in his garage was not unusual and should not have been the basis for obtaining a search warrant, they say.
McVeigh and Nichols could face death if convicted of the April 19, 1995, bombing of the Oklahoma City federal building. The blast killed 168 people and injured more than 500.