ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Saturday, October 26, 1996 TAG: 9610280067
SECTION: NATIONAL/INTERNATIONAL PAGE: A-1 EDITION: METRO
DATELINE: THE WASHINGTON POST
The judge in the Oklahoma City bombing case Friday ordered separate trials for the two men accused of the crime, saying a joint trial would be unfair.
The ruling was a significant victory for the defense, which had argued in hearings this month that a jury would not be able to weigh the evidence separately against Timothy McVeigh and Terry Nichols if the men were tried together. The central issue was incriminating statements Nichols made to the FBI two days after the April 19, 1995, bombing of the Alfred P. Murrah Federal Building in which 168 people were killed.
The judge also ruled that McVeigh be tried first, but did not set dates for the trials. Attorneys said they did not expect either trial this year.
The government had strongly opposed severance, arguing that it would be costly to conduct two trials and that it would be difficult to find a second, untainted jury. The government also clearly believed that its case against Nichols would be stronger if the men were tried together since Nichols was not in Oklahoma City on the day the two-ton bomb exploded.
Friday, though, federal prosecutor Larry Mackey said, ``I honestly don't think the ruling will have much impact'' on the outcome.
While prosecutors maintain that most of the evidence against the men is identical, only McVeigh has been directly linked to the Ryder truck that may have carried the bomb that destroyed the Murrah building. The case against Nichols probably will focus on phone records showing that the men talked continually in the days leading up to the explosion, as well as Nichols' statements to the FBI.
The decision by U.S. District Judge Richard Matsch on Friday turned on those statements, in which Nichols denied his involvement in the crime but told investigators he had picked up McVeigh in Oklahoma City a few days before the blast; that during the drive back to Kansas, McVeigh told him ``something big'' was going to happen; and that he had cleaned out a storage locker for McVeigh the day after the blast.
``If these statements ... are taken as true, they tend to incriminate Timothy McVeigh,'' Matsch wrote. ''There can be no effective separation of Terry Nichols' explanations for his conduct from what he reportedly said Timothy McVeigh told him.''
Matsch said that as a result of what Nichols told the FBI in nine hours of questioning, ``Timothy McVeigh will be profoundly prejudiced by a joint trial.''
McVeigh's attorneys had maintained that allowing the statements in a joint trial would violate McVeigh's rights since his attorneys would not be able to cross-examine Nichols unless he chose to take the stand in his own defense. Legal experts said it was unlikely that Nichols - or McVeigh - would have testified in a joint trial.
The judge agreed Friday, writing that if tried jointly, McVeigh's attorneys ``cannot question Terry Nichols or cross-examine the FBI agents on what they say Terry Nichols said.''
Relatives of the victims said they were disappointed that justice might be delayed.
``If this is what they call swift justice, I hate to see it when it's slow,'' said Kathleen Treanor, who lost her 4-year-old daughter and her in-laws in the blast.
LENGTH: Medium: 67 lines ILLUSTRATION: PHOTO: AP. A guard looks over a cluster of red balloons left atby CNBthe bomb site in Oklahoma City by the mother of one of the victims.
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