McVeigh defense ready to wrap it up

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May 27, 1997
Web posted at: 10:57 p.m. EDT (0257 GMT)

DENVER (CNN) -- FBI whistle-blower Fredric Whitehurst on Tuesday contradicted testimony about a truck fragment used as evidence against accused bomber Timothy McVeigh.

Whitehurst, a chemist, said he was "not sure I can agree" that ammonium nitrate crystals were found on the fragment because rain on the day of the bombing would have dissolved them.

Under cross-examination, Whitehurst said he had "no knowledge of any actual contamination of any evidence in this case." He was not assigned to the Oklahoma City bombing case.

Whitehurst's testimony was the strongest the defense has offered from about two dozen witnesses in the three days since it began presenting its case. The defense is expected to rest Wednesday.

"It's really not much to offer in a case of this magnitude," said legal analyst Andrew Cohen. "With so many millions spent in taxpayer dollars on the defense, three days isn't really much. It could send a signal to the jury that they're giving up."

The prosecution rebuttal is expected to take less than a day, followed by closing arguments. The case will go to the jury after U.S. District Judge Richard Matsch instructs the panel. The jurors will be sequestered during deliberations.

McVeigh, 29, is accused of murder and conspiracy in the April 19, 1995, bombing of the Murrah federal building that killed 168 people and injured hundreds. His alleged co-conspirator, Terry Nichols, will be tried later. Both face the death penalty.

Whitehurst admitted he first thought the ammonium nitrate finding by FBI chemist Steven Burmeister was "brilliant." But he said he later changed his mind after considering the rain.

"There's some data missing that I find an enigma -- that the crystal survived in a 100 percent humidity situation," he said. "I don't know how that could have happened."

The prosecution used the truck panel shard evidence in its case. FBI chemist Ron Kelly testified earlier this month that he personally removed it from a parking lot across the street from the scene of the bombing.

"I don't think that at that time Mr. Kelly had the hands-on experience to understand the implications of what he was doing," Whitehurst said. "I think he could make mistakes without realizing it."

Under cross-examination, Whitehurst acknowledged praising Kelly's work in a deposition in December. "Yes, I was very proud of him," he told prosecutor Beth Wilkinson.

The presence of the crystals may be crucial to the prosecution's case because it would indicate the truck bomb was made of ammonium nitrate. The government claims that substance was bought by McVeigh and Nichols from a farm supply cooperative in Kansas in October 1994.

Although Kelly took credit for finding the evidence, Whitehurst said he was told by FBI explosives unit examiner David Williams that "a civilian brought it in. We've got a problem with the chain of custody so we're not going to use it."

Williams, recommended for censure in a Justice Department report that criticized the FBI lab, testified Tuesday that he didn't remember the conversation with Whitehurst.

Whitehurst said his concerns about the crime lab prompted him to conduct contamination tests in its receiving area in May 1995.

He said he found traces of the explosives residue PETN in the lab. PETN was allegedly found on McVeigh's clothing and earplugs. The defense is suggesting the evidence may have been contaminated with PETN in the lab itself.

Whitehurst conceded in cross-examination that the contamination he found in the lab was not at the specific benches where the McVeigh evidence was apparently handled and tested.

In calling Whitehurst, the defense came as close as it may ever get to introducing the findings of the scathing federal report about the lab. Matsch has restricted the introduction of anything but evidence directly related to the bombing.

The report also had harsh words for Whitehurst, whose years of complaints prompted the investigation. Whitehurst worked in the FBI lab analyzing trace evidence from explosive residues from 1987-1994.

It recommended that he be transferred from the lab because his "overstated and incendiary" allegations had poisoned his relations with others. He is suspended with pay while the Justice Department decides whether he will be disciplined.

Next on the stand, British forensic scientist John Lloyd criticized the handling of key McVeigh evidence.

"It is not forensically sound," Lloyd said, explaining that McVeigh's clothes were packed in paper and plastic, both of which can be penetrated by explosive residues. Nylon film bags, metal foil-lined bags or paint cans are preferable, he said.

The defense has tried to show the clothes, in a box placed on the floor of the lab, could have been contaminated with explosive residue from people's feet. Theoretically, it could then have been spread to the table and onto the evidence.

Lloyd agreed with that assessment, saying without controls for contamination, none of the evidence should be trusted.

Matsch did not allow testimony from former ATF informant Carol Howe because it lacked "relevance to McVeigh's case and could confuse or mislead the jury." Howe reportedly has said she turned over recordings and information to authorities four months before the federal building explosion that a bombing could occur in 15 U.S. cities.

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