The move, intended to show that the defense sympathized with the victims, was emblematic of Jones’s tactics to date - shocking, dramatic and questionable in its effectiveness. Jones’s biggest test will come as he starts presenting his client’s side . The government plans to rest by midweek, which means a case everyone thought would wind up in August could be over by the end of June. Jones has been as shocked as anyone at the speed with which the prosecution laid out its damning evidence against McV eigh. The defense team has often seemed unprepared and on the ropes, while prosecutors have hardly stumbled since opening statements began April 24. ““I think the jury is persuaded of the prosecution’s case,’’ says Oklahoma defense attorney J. W. Coyle, who represented McVeigh in the days after his arrest. ““It will be difficult for the defense to catch up.’’ Indeed, many lawyers think Jones will have scored a victory if he obtains a life sentence for his client instead of the death penalty prosecutors seek.
Jones’s lackluster performance inside the courtroom has contrasted sharply with his somewhat more successful pretrial efforts to present McVeigh as an intelligent, even affable boy next door through a series of ““exclusive’’ interviews, including a NEWSWEEK cover story, and carefully timed leaks. His most serious blunder was when he attempted to refute a Dallas Morning News report that McVeigh had confessed. Jones said the story was a hoax but later backed down and claimed the document was faked a s part of a convoluted defense strategy.
His slick spinning raised expectations that, once in court, the 56-year-old Jones might have the potential to be much more than just a politically well-connected country lawyer from Enid, Okla., who won a once-in-a-lifetime court-appointed assignme nt. Jones himself appeared supremely confident in the national spotlight, seeming to relish the chance to join the privileged pantheon of celebrity consiglieri like Johnnie Cochran or F. Lee Bailey.
Once the trial started, however, spin mattered less than substance. Judge Richard Matsch, determined to avoid an O.J.-like circus, has clamped down on media access, leaving Jones to battle for his client in front of the only audience that really ma tters - the jury. And in court, defense lawyers following the case say, Jones and his team have already made several costly errors that may have inadvertently buttressed the prosecution’s claims that McVeigh bombed the building in retribution for the 199 3 raid on the Branch Davidian compound near Waco, Texas. On April 29, Lori Fortier, whose husband, Michael, was an army buddy of McVeigh’s, testified that McVeigh told her he picked the Alfred P. Murrah Federal Building because it was an ““easy’’ target and he thought federal agents involved in Waco worked there. On cross-examination, Jones tried to make Fortier crack by reminding her that - if her testimony was true - she could have stopped the bombing by picking up the telephone and reporting McVeigh’ s actions to the Feds. The ploy worked on one level; Fortier choked up on the stand. But Jones’s line of questioning also implied that if she could have stopped the bombing by turning McVeigh in, then his client must be guilty.
A week later, on May 6, ATF agent Luke Franey testified about his horrific experience when he was trapped and injured on the Murrah building’s ninth floor after the blast. On cross-examination, Jones tried to imply that Franey was exaggerating. Cri ticizing a victim - even a tough federal agent - is a very risky venture, but Jones went one step further. He had Franey confirm that two of the ATF agents who worked in the Murrah building had indeed been at Waco, again reinforcing the prosecution’s the ory.
Moments like these help explain why legal experts are cutting Jones very little slack at this stage in the case. ““Out of the 125 witnesses we’ve heard, there have been around 10 substantive cross-examinations,’’ says Denver lawyer Andrew Cohen. "” Out of those 10, maybe one or two cross-examinations have actually been successful … I expected a little more from Stephen Jones.''
Jones himself downplays his critics. ““I’m in the midst of a trial, and I don’t have the time, much less the interest, to respond to armchair defense strategists and Monday-morning quarterbacks who don’t have the responsibility, much less the knowl edge, of this case that I have,’’ he told NEWSWEEK. And, to be fair, Jones has had some successes. On May 8, he unveiled a blistering cross-examination of Eric McGown, a young Kansas motel worker whom Jones forced to contradict himself several times, lea ving jurors with the impression that McVeigh might have had two Ryder trucks. But the overall point - that there may have been two trucks - does not exonerate McVeigh.
Jones may be counting on some new evidence to sway jurors. During cross-examination of the Fortiers, he did not play any of the highly damaging FBI wiretap recordings of the couple from the days before they became cooperating witnesses. The tapes c ontain numerous vulgar con-versations where an intoxicated Michael Fortier slurs through some of the many lies he now says he told about McVeigh’s involvement in the blast. Nor did Jones play a CNN video of a disheveled Fortier declaring McVeigh’s innoce nce to millions of viewers. NEWSWEEK has learned, however, that Jones will play these tapes later in the case in an attempt to damage the Fortiers’ credibility shortly before the jurors begin deliberating.
Another key part of his defense will be criticizing the credibility of the FBI crime lab; though it is not clear if Judge Matsch will allow Jones to put the FBI on trial O.J. style. A big question is how much of the far-flung international-conspira cy theories Jones has been spreading will actually be admissible in court. Jones has crisscrossed the globe - traveling to the Middle East, Asia and Europe at taxpayer’s expense - in what appears to have been a futile attempt to connect foreign terrorist s to the bombing.
As the trial proceeds, there’s some indication that Jones’s client may be feeling the strain. Months ago, when McVeigh attended pretrial proceedings, he was an unusually affable defendant, constantly making animated conversation with his lawyers. H e was so effusive, in fact, that many survivors were offended by his behavior. McVeigh still comes to court wearing a plain or plaid open-collar shirt and khaki pants. But the ear-to-ear grins are gone - replaced by blank stares, furrowed brows and an oc casional flush of the face. This new persona may be part of a defense strategy to manage McVeigh’s demeanor in front of the jury. Or it could be that McVeigh has begun to hear the quiet shuffle of death’s footsteps outside his cellblock door.
