Judge Restricts McVeigh Penalty Case Testimony

DENVER â€”  The federal judge in the Oklahoma City bombing case warned Tuesday that he will not preside over a public “lynchingâ€� and severely limited much of the emotional testimony from victims that prosecutors had hoped to use in their effort to put Timothy J. McVeigh to death.

But Judge Richard P. Matsch also restricted some of the defense team’s plans to contend that fatal federal sieges near Waco, Texas, and at Ruby Ridge, Idaho, upset many Americans and that McVeigh was caught up in hysteria that the federal government was overstepping its authority.

“We’re not going to try what actually happened at Waco or Ruby Ridge or those kinds of things,� Matsch said. “Those events have already been the subject of trials.�

In setting the guidelines for the trial’s penalty phase, which opens today, after McVeigh was found guilty Monday of plotting and carrying out the bombing, Matsch told prosecutors that while he will allow relatives of the 168 people killed in the explosion or those injured to take the witness stand, he will not let them express their desire for revenge.

He also ruled he will not permit into evidence pictures of the victims and their family members gathered at weddings, Christmas celebrations or other joyous occasions, or testimony about the funerals for loved ones killed in the April 19, 1995, blast at the Alfred P. Murrah Federal Building.

Nor did he agree to the government’s request to show certain videotapes of victims, including one home-made movie of a typical day at the federal credit union before it was destroyed in the explosion.

“A penalty phase hearing cannot be turned into some kind of lynching,� Matsch said. “This cannot become a matter of such emotional testimony which would inflame or incite the passions of the jury . . . as to whether the defendant should be put to death.�

He also ruled that McVeigh would not put himself at legal risk if he decides to testify in his own behalf and in the process effectively admits culpability in the bombing.

For example, McVeigh could try to show how his decision to bomb the Murrah building was influenced by outside factors, such as the Waco siege, in which more than 80 members of the Branch Davidian religious cult perished, and the Ruby Ridge standoff, in which the wife and son of a right-wing extremist were killed.

If McVeigh testifies, Matsch said, his statements would not necessarily jeopardize his legal appeals for a new trial and, if he should be granted one, his bid for an acquittal.

“I’m not going to require that any defendant, and certainly not Mr. McVeigh, make a choice between an appeal and the opportunity to testify at his sentencing hearing,� the judge ruled.

McVeigh, 29, was found guilty on all 11 counts in a federal indictment in the bombing case. The verdict by seven men and five women set the stage for the penalty phase of the trial.

Jurors are to return today to begin hearing testimony and reviewing evidence on whether McVeigh should die by lethal injection or spend the rest of his life in prison without the possibility of parole.

Anything short of a unanimous verdict to put McVeigh to death will automatically result in the life sentence. By law, Matsch is bound by the jury’s decision.

The judge said he will question the jurors to make sure they still believe--as each indicated during the jury selection process--that they can sentence McVeigh to death if they decide that is the appropriate punishment. Those who cannot will be replaced by alternates.

With the stakes so high, the trial’s sentencing phase is expected to be highly combative.

For prosecutors, a life sentence would be a significant failure, given that both President Clinton and Atty. Gen. Janet Reno had vowed in the immediate aftermath of the Oklahoma City bombing that those responsible for it would be executed.

For McVeigh’s lawyers, sparing his life would be a major victory, especially in view of the relatively spare defense they were able to mount on his behalf.

Both sides are expected to take three to four days in presenting their arguments in the sentencing phase. The government, which goes first, plans to call about 40-45 witnesses, the majority of them bombing survivors or relatives of the dead and injured.

They also intend to elicit testimony from rescue workers, physicians and others in presenting a full picture of the horror and continuing pain and anguish from the morning of the bombing.

“We are not trying to inflame the jury or put on a lynching in any way,� said assistant prosecutor Sean Connelly. “We’re not looking to inflame the jury, but to help them make a reasoned moral judgment.�

He also denied the defense team’s argument that prosecutors want to turn Matsch’s courtroom into a symposium for relatives to give eulogies to the dead. “But we do intend to offer an objective story regarding the understanding of the victims and the victims’ backgrounds,� Connelly said.

Among the witnesses, he said, will be a 10-year-old boy who will read a brief statement he wrote concerning the loss of his mother. Another will be a woman who volunteered to work a crisis hotline to counsel victims. Yet another will be a citizen who was moved to buy savings bonds for family members of the dead.

Matsch said he will not allow testimony that McVeigh purposely planned to kill the 19 children who were among the bombing’s victims because “there’s not enough proof� that he knew that the Murrah building contained a day-care center.

But he will allow testimony that suggests some of the victims were not killed instantaneously, and instead died painfully as gravel and other debris from the falling nine-story structure filled their lungs.

The defense has about 75 names on its witness list, but is not expected to call them all. McVeigh’s lawyers plan to continue with their strategy of bringing in experts to testify about the anger with which some right-wing groups reacted to the Waco and Ruby Ridge incidents. But how far the defense will get before Matsch limits the testimony remains to be seen.

It is also expected the lawyers will stress that before he soured on his government, McVeigh was an Army veteran who was decorated for his service in the Gulf War.

“They will use his background, his lack of a criminal record, his hopefully stellar military career, friends, family, co-workers, people who know Timothy McVeigh� in a bid to portray him in the most sympathetic light possible, said Lisa Kemler, an Alexandria, Va., defense attorney.

Gerald Lefcourt, a New York defense lawyer, said the defense lawyers could try to delve deeply into McVeigh’s psyche.

“If they say he did it,� Lefcourt said, “they could always have him testify about what was going through his mind, and have psychiatrists testify as to his mental state.�

Times staff writer Dina Bass contributed to this story.

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

Next Step Begins Today

* Penalty phase: Jurors begin hearing evidence today. Prosecutors expected to call victims’ relatives and survivors. Defense will call McVeigh’s relatives, possibly McVeigh.

* Sentencing: McVeigh faces death by injection, life without parole or lesser sentence determined by the judge.

* Death penalty: Execution date may be set no sooner than 60 days after sentencing.

* Appeals: Defense almost certainly will appeal to the 10th U.S. Circuit Court.

****

WHAT IF . . .

If the jury cannot unanimously agree . . . the judge can impose a sentence of up to life in prison without parole.

If the jury decides McVeigh should be executed . . . the judge cannot overrule that.

If the jury decides McVeigh should be execute . . . the president has sole authority to grant last-minute clemency.