Judge Rejects Nichols Motion to Throw Out Case

McALESTER, Okla. – A judge denied a motion Wednesday to dismiss the state murder case against Oklahoma City bombing (search) conspirator Terry Nichols (search), saying there was no basis for claims that evidence important to his defense was withheld.

"This motion to dismiss is laced with melodrama but no substance," Judge Steven Taylor said. "Most of the claimed new evidence is not new at all."

Nichols' attorneys alleged in the motion, filed last week, that the state was withholding evidence that there were other suspects in the Oklahoma City bombing who have never been charged, including members of a white supremacist robbery gang and residents of Elohim City, a white supremacist enclave in northeastern Oklahoma.

"These are not new theories and this is not new evidence," Taylor said.

Documents Nichols' attorneys claim were withheld from them included a Secret Service document describing security video footage of the attack. A Secret Service agent had testified that this document exists, but said it was based on unverified information and the government knows of no videotape.

"There is no such videotape," Taylor said. "These claims serve no purpose in this litigation."

Taylor's ruling came before more testimony from the prosecution's star witness, Michael Fortier.

If Nichols' attorneys want to enter evidence about alternative suspects in the bombing, they may do so as long as they show such people made overt acts to further the bomb plot, Taylor said. He said no such showing has been made.

Taylor also said attorneys may enter evidence about people who accompanied McVeigh at key points before the bombing.

On cross-examination Wednesday, Fortier said he never spoke to Nichols about a plot to bomb the Oklahoma City federal building, the government siege at the Branch Davidian compound in Waco, Texas, or any anti-government views. Prosecutors say the Oklahoma City bombing was a twisted attempt to avenge the deaths of about 80 people in that siege.

In testimony Tuesday, Fortier, who is serving a 12-year sentence for knowing about the bomb plot and not telling authorities, said Nichols stole explosives and committed a robbery to help pull off the Oklahoma City bombing.

He testified for more than five hours about his contact with Nichols and Timothy McVeigh, his former Army buddies.

Fortier, 35, said McVeigh and Nichols burglarized a Kansas rock quarry near Nichols' home, stealing detonation cord, blasting caps and other explosives that authorities said were used to blow up the Alfred P. Murrah Federal Building.

He said McVeigh told him that Nichols had robbed an Arkansas gun dealer to raise money for the blast, which killed 168 people on April 19, 1995. It was the worst act of domestic terrorism in U.S. history.

"(McVeigh) told me that him and Terry had been making trips to local feed stores to buy ammonium nitrate," Fortier said, referring to the fertilizer that was mixed with racing fuel in the homemade bomb.

Nichols and McVeigh were convicted of federal charges for the deaths of eight federal agents . McVeigh was executed in 2001 and Nichols was sent to prison for life.

Nichols, 49, faces 161 state murder charges for the other victims and a fetus of one of the victims. He could get the death penalty if convicted.

Fortier said he refused to go along with the plot and tried to talk McVeigh out of it. He does not believe the bombing would have happened if he had spoken up to police.

"I didn't think Tim was going to go through with it," Fortier said.

Fortier said he accompanied McVeigh on a trip to Kansas to retrieve weapons that had been stolen from an Arkansas gun dealer when they made a pit stop in Oklahoma City on Dec. 16, 1994.

"He was going to show me the building that they were going to blow up," Fortier said.

"He said it was going to be on the anniversary of Waco," Fortier said, a reference to the April 19, 1993, end of the government siege at the Branch Davidian compound in Waco, Texas, in which about 80 people died.

McVeigh believed "the Murrah building is where the orders for the burning of Waco came from," Fortier said. Prosecutors maintain the bombing was a twisted plot to avenge the deaths at Waco.