A Tale of Two Bombing Trials

Associated Press

When Timothy McVeigh detonated a bomb on the back of a truck outside the Alfred P. Murrah Federal Building in Oklahoma City, Dzhokhar Tsarnaev was a toddler living in Kyrgyzstan. It wouldn’t be until 18 years later to the day that Tsarnaev would climb out of a boat in a Watertown backyard, bloody, with his hands up, surrounded by federal agents and police officers.

The 2013 Boston Marathon attack was the worst bombing on American soil since Oklahoma City, and like McVeigh, Tsarnaev is charged capitally for an act of domestic terrorism. Tsarnaev’s attorneys—led by famed San Diego defense lawyer Judy Clarke—are aware of the parallels. McVeigh’s case has been referenced in numerous motions leading up to Tsarnaev’s trial, from issues surrounding discovery of evidence to the location of the trial. His legal team maintains that the trial should be moved out of Boston for fear of a biased jury. “Here, as in McVeigh, the strong emotional and community response evidenced in the pretrial publicity demonstrates that potential jurors from the Eastern Division of the District of Massachusetts can only be presumed to feel a personal stake in the outcome,” his attorneys wrote in a petition. McVeigh’s case was successfully moved to Denver, Colorado, but Tsarnaev’s motions to move the case were unsuccessful.

Despite these attempts, the trial is underway. Last week, more than 1,300 residents were called to the jury pool where they answered a 28-page questionnaire and marked a still-sealed list of potential witnesses. On January 15, a select number of potential jurors are due to return for the oral interview portion of jury selection.

For more on what to expect from a high-profile bombing trial, we spoke to McVeigh’s criminal defense attorney, Stephen Jones. Here, Jones shares his thoughts on the similarities and differences between the two cases, and more.

What else is similar about these two cases, and what’s different?

There are significant differences, but there are certainly are some parallels. The principle difference is that in Mr. McVeigh’s case, in the Oklahoma City bombing, you had 168 people killed and about 503 hospitalized, you had about 200 buildings destroyed, and probably about $800 million worth of uninsured coverage. Plus, with the large amount of injuries and deaths you had throughout the state, there was almost complete identification in some way or the other with the victims, usually a personal identification opposed to just simply experiencing it on media. Plus, the circumstance of where it took place, on an ordinary workday in Oklahoma City, which certainly is a less metropolitan city than Boston. In Mr. McVeigh’s case he, of course, had codefendants whereas in [Tsarnaev’s] case there is only one defendant. Those are some of the major differences.

In terms of the similarities, there are a great deal. You had a strong identification with the victims, which the demonization of Mr. McVeigh and the demonization of the young man in Boston … is basically complete, even though the number of fatalities in Boston is very small compared to Oklahoma City, but some of those are very dramatic. In fact, one could argue that the fewer number of fatalities really accentuates those that were killed, not to mention those who lost a leg.

Are you surprised that Tsarnaev’s trial is being held in Boston? Why do you think Tsarnaev’s attorneys lost their motions to move the case where you succeeded with McVeigh?

Well, change of venue motions are rarely granted anymore. I think that in the 60s and the early 70s, judges, particularly state courts, were much more willing to grant a change of venue within the same state.

The federal courts, in my opinion, engage in a fiction. The fiction is—and some sincerely believe it, but I think nevertheless it’s a fiction—that once the juror takes an oath as a juror that their personally and character sort of changes and now they recognize this tremendous responsibility on them. I’ve not found that to be true.

What I’ve found is that the more notorious the case is, or the greater the publicity, jurors campaign to be on the jury so they can be a part of history, and that was certainly the case in Mr. McVeigh’s jury. I think that’s an unfortunate development. Judges like to believe, and law has certain fictions—one of those fictions is that if you can seat a jury, then you don’t need a change of venue because you were able to seat 12 people that met the qualifications. The problem with that analysis is that in a high-profile case that’s carried in the newspaper and on the media, jurors that want to serve and view themselves for the ego and status as wanting to serve. They know how to answer the questions so that at least they’re not automatically disqualified.

Sometimes that works in reverse. We used to say that if you had a jury that was a death penalty qualified and they were going to be sequestered then you would be surprised how many people were absolutely opposed to the death penalty because nobody wanted to be locked up for a week in some motel room.

Do you think the potential for a biased jury here in Boston will make grounds for Tsarnaev’s attorneys to appeal once the case is over?

If he is convicted and given a life sentence, it may not be of his interest to appeal it. If he’s convicted and given the death sentence, then most assuredly they will appeal it.

The real test of the sincerity of the process is how much voir dire the judge allows and how fair, quite frankly, he is with the defendants. If we got one of the situations where [the judge says] “Well, panels, anything you want to ask?” and you have 30 minutes, that’s not fair. Certainly not in a case like this.

In McVeigh’s case, Judge [Richard] Matsch bent over backwards. I mean there were some people we spent a day with and that was the only person who was questioned that day. Now, as I said, unfortunately the government engaged in very good strategy. They tried to preempt the jurors and ask them the questions that we would ask them and get the right answer framed so they would avoid being challenged for calls.

What strategy do you think Tsarnaev’s attorneys are going to apply during voir dire?

It’s kind of a game in which you see if you can outwit the jurors. You don’t ask them about presumptions of evidence or proof. You can find out more about a juror a prospective juror by asking them, what magazines do you read? Where do you get your news? If they say television, where on television do you get your news? That’s some indication of a person’s political orientation.

Ms. Clarke’s approach and what she’s noted for is persuading the prosecution to not ask for the death penalty. In this case, that was almost a bridge too far. I mean she’s had fabulous success in her cases, but in some of those other cases you had an element of sufficient mental issues.

When you were first building your defense for McVeigh, you tried to argue he was innocent. That argument doesn’t seem to be in the cards for Tsarnaev.

In the final analysis, the government was the lucky recipient of two breaks. One, The Dallas Morning News story where they ran the contents of a defense memo that quoted Mr. McVeigh as saying, “We needed a body account.”

The other way that the government put its case together, which was quite shrewd and quite effective, was to concentrate less on the facts and more on the victims, the emotionalism. Very effective. It started on day one. In many cosmetic ways, the government was very successful in communicating that emotionalism and the sense of loss to the jurors to where they’re sitting there crying during some of the testimony, and what can I do? I mean I could object, but that’s only going to make it harder, more difficult.

McVeigh was eventually convicted and received the death penalty. Was there any way you could have gotten him a plea deal to save his life?

Well there were more than two people involved in the Oklahoma City bombing. At a minimum there were four confessed. That’s a minimum. Michael Fortier, his wife, Laurie, who never served a minute in jail, Tim McVeigh, and Terry Nichols. That’s four. Onto that you can add, in my opinion, James Nichols, he probably was the ringleader of it, possibly the other brother, although I think the evidence is less certain, and then there are enough other witness that place somewhere between three to five other people.

But at the time it was only Mr. McVeigh, and Tim’s determination was that he would not name anybody else. He would die before he named anyone else. He had originally given me permission to meet with Attorney General Reno in which we would discuss the identity of the others, and then three days before [the arranged meeting], Tim McVeigh withdrew the authorization. Tim McVeigh was an interesting person. He was a true terrorist. He wanted to advance the cause of the revolution and he was willing to sacrifice himself to do so.

What argument did you use in the sentencing phase? Clarke is expected to argue Tsarnaev acted under the influence of his older brother, Tamerlan. What other arguments do you think she could use?

There were only two openings that I saw to save his life. The first was to argue that mercy was a greater virtue than justice and to advance that theme, particularly in an area in Denver where we would count on some intervention by the Roman Catholic Church.

The other way was to argue to the jury, well, you found Mr. McVeigh guilty, therefore you must accept the government’s motives as to why he did what he did what he did, and I think that it’s beyond question that the government’s case rested upon Mr. McVeigh’s outrage at the attack on The Branch Davidians. So, let us show you what the attack on the Branch Davidians was. And my hope was that would place him in a way like a modern-day John Brown.

Well, in [Tsarnaev’s] case you have a 19-year-old who was allegedly influenced by his brother. I think it’s possible that some people become so preoccupied with the concept of what is right and what is wrong that it will drive them to violence or there will be a failure of judgment.

Do you think there is a chance that a jury from Eastern Massachusetts might be sympathetic if it turns out Tsarnaev carried out the attack in retribution for the wars in Afghanistan and Iraq?

I’m not sure that’s his motive but assume that’s his motive. If there’s any place in the United States that that argument is going to fall on receptive ears, it’s Eastern Massachusetts.

What was the aftermath of the McVeigh trial like for you?

I took six months off just to sort of rebuild my emotional life. But my office for many years thereafter was in the same building. I live in the same house. I have an office in Oklahoma City on the street level entrance with my name. It’s right around the corner from the Murrow building site. When I’m in Oklahoma City, I walk on the street from the apartment to my office I’m never molested or harassed. I think the people of Oklahoma understand that Tim McVeigh deserved a vigorous defense, and that’s what I tried to give him.

This interview has been condensed.