For weeks after the Oklahoma City bombing, John Doe No. 2 was the talk of the nation. Two-and-a-half years later, he is once again.
The nationwide search for the man the FBI at one time thought conspired with suspect Timothy McVeigh to blow up the the Murrah Federal Building turned up nothing. But the defense team in the Terry Nichols trial is making John Doe No. 2 a major part of its case, as it hopes to cast doubt on whether the government investigated all possible conspirators in the Oklahoma City bombing.
At best, the defense hopes jurors decide the government has the wrong man in Mr. Nichols. At the least, it may hope to save Nichols's life by instilling doubts as to whether Nichols was as integral to the plot as the prosecution maintains. In either case, the legal tack has many people asking if Mr. McVeigh was indeed a part of a larger conspiracy, and to what extent Nichols might have been involved.
Laying the groundwork
In the opening days of defense testimony, lawyers for Nichols called dozens of witnesses - including a nurse, a grocery-store cashier, a waitress at Denny's, a medical-records worker, and a Ryder truck-rental shop employee - who said they saw Mr. McVeigh with someone other than Nichols prior to the April 19, 1995, bombing. Most accounts were of a dark-complexioned man, possibly Hispanic, who was several inches shorter than McVeigh and of medium build.
Other witnesses describe yet a another man with McVeigh, who looked nothing like either Nichols or the second character. And while the possible existence of other co-conspirators doesn't get Nichols off the hook, it's clearly in his favor that no witness can place him with McVeigh as the bomb plot was being carried out.
"Nobody ever says they saw Nichols with McVeigh. I think that's effective for the defense," says Daniel Recht, a criminal-defense lawyer in Denver and past president of the Colorado Criminal Defense Bar. "They have a parade of witnesses who say they saw McVeigh with others, and the government doesn't have an explanation for who these people are."
The swarthy man frequently described as accompanying McVeigh, the defense suggests, is really John Doe No. 2. The government, however, counters that accounts of the second bombing suspect are all just a case of mistaken identity. Moreover, prosecutors imply that witness testimony about this man is akin to "Elvis sightings." While people may genuinely believe they saw McVeigh with someone who resembles FBI sketches of John Doe No. 2, they are simply confused.
Prosecutors also point to discrepancies between different witnesses' accounts of the elusive suspect, and to inconsistencies with what witnesses told FBI agents on different occasions. Under cross-examination, most witnesses acknowledged that their memories are somewhat foggy on the details of what they saw nearly three years ago.
Does John Doe No. 2 really matter?
Yet even if jurors believe that one or more others did aid McVeigh, that wouldn't bear on Nichols's culpability under the law, experts say. They agree that the government has constructed a strong case of circumstantial evidence against Nichols, and for a guilty verdict, the prosecutors need only prove that Nichols took steps to advance the bomb plot.
"If someone else was with McVeigh, so what?" says William Pizzi, a University of Colorado criminal law professor and a former federal prosecutor. "There probably was someone else - but that does not exculpate Nichols. Based on the prosecution case, Nichols was up to his ears in this plot. As long as you can show that he was a probable conspirator with McVeigh, he's liable."
Government evidence suggests Nichols purchased thousands of pounds of ammonium nitrate fertilizer, a key bomb ingredient, and stockpiled it in storage lockers rented under false names. Prosecutors also claim he robbed an Arkansas gun dealer to help finance the plot and broke into a Kansas quarry to steal explosives.
Damaging evidence also includes a letter Nichols wrote urging McVeigh to "go for it," and telephone records showing that the two spoke frequently in the months preceding the bombing - even though Nichols claims by then he had parted ways with McVeigh.
The existence of other conspirators simply can't explain away such evidence, says David Lane, a Denver criminal defense attorney who specializes in death-penalty cases.
"Bringing on a John Doe No. 2 through John Doe No. 32 doesn't mean that Terry Nichols didn't do what the prosecution says he did," he says.