THEY SAID HE SAID ...

By Howard Chua-Eoan

The words were cold and willful. In July 1995, at the El Reno Federal Correctional Institution in Oklahoma, Timothy McVeigh reportedly sat down with a member of his defense team and was asked, Why didn't you bomb the Alfred P. Murrah Federal Building at night, when fewer people would be killed? The prisoner looked his interlocutor in the eye and said, "That would not have gotten the point across to the government. We needed a body count to make our point."

That rendition of motive, reported Friday by the Dallas Morning News, sent chills through survivors and the kin of the 168 people killed in the April 19, 1995, blast. The words, purportedly gleaned from defense interviews with McVeigh between July and December 1995, also sent McVeigh's lead attorney, Stephen Jones, into damage control in Denver, Colorado, where jury selection is set to begin on March 31. For 30 minutes he complained about the Morning News story in the court of U.S. District Judge Richard Matsch, and then launched into a diatribe against the paper in a press conference. Jones claimed the daily was practicing "the most irresponsible form of journalism" and was the victim of a hoax by a "person [who] has it in" for the paper. He relayed his client's reaction as, "Well, there's a practical joke every week." Later, Jones told TIME the disclosure was "very clever. We can't deny it, and we can't admit it." The protestations came even as defense and prosecution said the revelations would have no effect on the trial. Still, Jones says he will ask for an inquiry to see if his client's right to a fair trial has been violated.

Meanwhile, the Morning News declared it was standing by its story. The paper's account is almost novelistic in detail. The bomb, McVeigh allegedly said, was built with 5,400 lbs. of ammonium nitrate fertilizer--600 lbs. more than the government estimate--mixed with high-grade racing fuel. Total cost: $540 for the fertilizer, $3,000 for the fuel. The summer before the bombing, McVeigh was noted as saying he had an affair with the wife of Terry Nichols, the former Army buddy who would become his accused co-conspirator. The paper did not indicate whether Nichols found out. Still, according to the notes, Nichols helped build the bomb and carried out a McVeigh plan to finance it by breaking into an Arkansas gun dealer's house to steal weapons (later sold for cash). According to the newspaper's account, McVeigh "insisted that he was the one who drove the Ryder truck" to the federal building, denying reports that someone else may have carried out the actual delivery of the bomb.

Jones, who has hinted at a strategy of casting suspicion on plotters still at large, told TIME that the alleged confession was "a deliberate attempt to protect other conspirators in the case." In 1995 news stories appeared in which McVeigh admits his guilt to unnamed sources. (McVeigh told TIME in March 1996 that "I've said I'm not guilty.") Still, even if the Dallas notes are authentic, they are covered by attorney-client privilege, and will probably never be entered as evidence. (The privilege protects confidential communications made by a client to a lawyer.) As for Jones, even if he knew, he is not obligated to tell the court of his client's guilt. Says Susan Estrich, professor of criminal law at the University of Southern California: "Most lawyers will tell you they encourage their clients to tell them the truth so they won't be blindsided. It's very hard to defend someone who is lying to you." On the other hand, defense lawyers cannot knowingly encourage their clients to lie on the stand without being liable to charges of suborning perjury. And if it is discovered that an attorney on either side leaked the document, that lawyer could be disbarred. Says former O.J. Simpson defense lawyer Carl Douglas: "There have been a series of leaks in this case, and I don't think they're coincidental."

Jury-pool contamination is the biggest problem created by the Morning News story. Says Gerald Shargel, a defense lawyer in New York City: "There's a potential for grave damage here. There's apparently no witness that puts McVeigh in Oklahoma City on the morning of the bombing." Says Peter Arenella, a law professor at the University of California, Los Angeles: "Just a report of this is extremely prejudicial to McVeigh's right to a fair trial. Even if the press reports all its caveats, the people still remember this news." When he spoke to TIME in March 1996, McVeigh said he looked forward to taking the stand. Why? "So that the jurors know me, and not what they've read." He can test that conviction when he gets to trial.

--Reported by Patrick E. Cole/Los Angeles, Andrea Sachs/New York and Richard Woodbury/Denver

With reporting by PATRICK E. COLE/LOS ANGELES, ANDREA SACHS/NEW YORK AND RICHARD WOODBURY/DENVER