THE SMILE OF A KILLER

By Howard Chua-Eoan

In the beginning, during the pretrial proceedings, Timothy McVeigh would try to greet Beth Wilkinson with a smile and a hello, a tactic he used with other people in court. Each time, however, she would shoot back a cold glare. The federal prosecutor would allow no attempts at cordiality to mitigate her mission: to convict McVeigh and get him sentenced to death. Last week, after his defense had presented parental pleas for mercy, Wilkinson's words thundered through the courtroom, demanding the life of the convicted Oklahoma City bomber. "All of us can feel compassion for his parents, but they do not know the Timothy McVeigh who murdered innocent men, women and children. Timothy McVeigh is no longer the sweet kid they want to remember... While Timothy McVeigh has had the benefit of his parents asking for his life, the victims of his crimes had no one... And even if someone had pleaded for them, Timothy McVeigh would have turned a deaf ear." In his chair, McVeigh stared back at Wilkinson. He had long ceased trying to be friendly.

In the end the jurors could not bring themselves to believe he could be friendly. As they checked off the list of mitigating factors his lawyers raised to humanize him and to try to save his life, the seven men and five women, in part if not as a whole, were willing to believe that McVeigh had been a good soldier and teacher and was deeply affected by the events at Waco and Ruby Ridge--but not one felt that McVeigh was a "good and loyal friend," as the official questionnaire worded it. The jurors unanimously sentenced him to death. McVeigh showed no emotion, and as he was led away, he used two fingers to wave to the jury. He turned to his parents and his sister to mouth the words, "It's O.K." "Is he on some kind of medication?" asks Marsha Kight, who lost a daughter in the blast and believes execution is not punishment enough for McVeigh. "Death is easy," she says. "He'll be gone in two minutes."

However, the road to the death chamber may be long, with many potential twists and turns. Sources close to McVeigh's defense have told TIME that his lawyers will file a motion for a new trial with Judge Richard Matsch in Denver, citing Rule 33 of the Federal Rules of Criminal Procedure. While the full details of the motion are still under discussion, the sources say it will be filed by July 7. It will argue that Judge Matsch may have committed several errors, including not allowing the defense to depose witnesses in the Philippines who would point to an international conspiracy and not letting the defense present a former informant, Carol Howe, who was expected to have testified to a wider bombing conspiracy as well. Matsch had ruled that Howe's testimony was irrelevant.

The motion, if it is granted, will provide a new trial for McVeigh. But if Matsch rejects the motion, McVeigh's chief attorney, Stephen Jones, can also appeal the sentence and the conviction to the 10th Circuit Court of Appeals in Denver. The Court of Appeals, unlike the Supreme Court, cannot choose to ignore a request for an appeal.

It can, however, deny the appeal after hearing it. In which case McVeigh can bring his case to the Supreme Court. If the Supreme Court upholds the decision or refuses to hear the case, a defense attorney has, under the 1996 antiterrorism law, only one year to challenge the constitutionality of a client's conviction and sentence at federal-district-court levels, with further motions available all the way to the Court of Appeals. Even if all appeals fail, McVeigh is likely to spend at least five years in prison before his sentence is carried out. In state cases the wait for execution averages 8.6 years. In 1991, David Ronald Chandler became the first person convicted and sentenced to death under an expanded federal capital-punishment statute. Chandler is still alive and unlikely to be executed soon.

But will punishment turn McVeigh into a martyr for fringe antigovernment radicals? The issue caused a furor as the arguments in the penalty phase wound down. In his final speech Jones told the jury, "You have to make the first step to restore domestic tranquillity. You can't do it all. You now know that Oklahoma City started something. Montana, Arizona, Texas, Atlanta: they're all familiar to you"--referring to the Freemen, Vipers and Republic of Texas militia movements in the first three states, as well as to the unknown bombers of the Olympic Park and an abortion clinic in Georgia. Joseph Hartzler, the lead government prosecutor, immediately attacked the statement as "tantamount to almost a terrorist threat." Jones later insisted that he had not said a word about violence. Joe Guastaferro, a Chicago-based jury consultant, believes it may have been an attempt by the defense to create an unstated mitigating factor for the jury to consider. "If Oklahoma was a retaliation for Waco, and the [far right] saw the people at Waco as martyrs, then what's going to be the retaliation for McVeigh?" he asked.

Still, the surprising defense emphasis on Waco in the arguments of the penalty phase may have been instigated by McVeigh himself, perhaps as a reminder to the world of what he considered the instigating holocaust for his crime. McVeigh, according to defense sources, "thoroughly discussed the closing argument" with his lawyers. The defense presented witnesses and tapes about the siege at Waco to explain what it meant to the militia and patriot communities, especially their belief that the U.S. government set the fire that burned down the Branch Davidian compound. The presentation was effective, if counterproductive. It virtually duplicated the prosecution's attempt to portray McVeigh as a fanatic. But it did convince the jurors, as evidenced by their votes on mitigating factors on the sentencing form, that McVeigh was deeply moved by Waco.

Already McVeigh is taking on the shape of a proto-martyr in the eyes of radical elements of the militia movement--that he was not the only bomber, that a larger plot existed in which McVeigh was only a minor pawn. Even as the jury was weighing McVeigh's fate this week, militia faxes were churning reports of seismographic readings that pointed to two distinct explosions, 10 seconds apart, on April 19, 1995. "Incontrovertible scientific evidence exists to refute the single-bomb theory," asserted John Prukop, a Washington State patriot leader.

Other critics of Waco and Ruby Ridge, quick to seize on a fresh cause, claimed that the bombing was somehow a Clinton Administration plot to quell the militia movement. They agree with McVeigh's defense that important evidence was excluded from the trial but think that expert scientific testimony was deliberately banned as well. Sheila Reynolds, an Arizona patriot who runs a fax network, added a new villain to the mix: the trial judge. She charged that Matsch, by banning important testimony, "proved that he was running a tribunal, not a court. He's not a 'constitutional judge.'" Reynolds' Resurrection News & Fax Network feeds dozens of other faxes, and the rumor mongering seems certain to thrive on the World Wide Web. And so, in the face of death, Timothy McVeigh may be on the verge of an entirely different kind of life.

--Reported by Patrick E. Cole and Richard Woodbury/Denver, Sally B. Donnelly/Washington and Charlotte Faltermayer/New York

With reporting by PATRICK E. COLE AND RICHARD WOODBURY/DENVER, SALLY B. DONNELLY/ WASHINGTON AND CHARLOTTE FALTERMAYER/NEW YORK