The U.S. district judge who presided over both Oklahoma City bombing trials never read a Bureau of Alcohol, Tobacco and Firearms informant’s file that could have provided jurors with important information about others allegedly involved in the bombing of the Alfred P. Murrah Building April 19, 1995.
According to a recently unsealed transcript of a closed-door session between U.S. District Judge Richard P. Matsch, attorneys for the Justice Department and attorneys for Terry Nichols, Matsch admitted that he had received ATF informant Carol Howe’s sensitive informant file months earlier but never read it, in the waning days of Nichols’ trial in Denver, Colo.
The “In Chambers Conference” took place Dec. 8, 1997. Present were Larry Mackey, Sean Connelly, Beth Wilkinson, Geoffrey Mearns, Jaime Orenstein and Aitan Goelman on behalf of the Justice Department; also present were Nichols’ attorneys Michael Tigar, Ronald Woods, Adam Thurschwell, Reid Neureiter and Jane Tigar, the document said.
WorldNetDaily was alerted to the existence of the transcript by The McCurtain Daily Gazette newspaper.
Howe, a paid ATF informant, had reported to her handler, Special Agent Angela Finley, that a plot to stage violence against the U.S. government was being devised by members of a racist community called Elohim City, in northeastern Oklahoma, months before the Murrah attack.
The information was contained in Howe’s ATF informant file, which was kept secret by the agency and maintained by members of the Tulsa ATF office. Every month, Tulsa agents would forward Howe’s information to ATF agents in Dallas.
After the Oklahoma City attack, Finley directed Howe to provide her information to the FBI.
“In an April 21, 1995, interview with the FBI” – just two days after the Murrah attack – “Howe stated that Dennis Mahon had talked to her about targeting federal installations for destruction through bombings, such as the IRS building, the Tulsa federal building and the Oklahoma City federal building,” the McCurtain paper said. “Howe also told the investigators that Mahon, and a German military officer living at the camp, Andreas Strassmeir, had taken three trips to Oklahoma City to case the federal building prior to the blast that destroyed it.”
Howe’s FBI interview took place in Oklahoma City. Finley never disputed Howe’s recollection of her eyewitness statements, and, in a “lead sheet” provided to the bureau, even confirmed the veracity of Howe’s testimony.
Consequently, the FBI “had information from an ATF agent and a confidential informant that persons at Elohim City were involved in a very similar plan” just “48 hours after” the Murrah attack, the newspaper said.
Howe’s information was also substantiated by a number of audio and video tapes made via court-authorized wiretaps, “body wires” and hidden cameras carried and operated by Howe during her extensive visits to Elohim City.
Those others she named as allegedly having been involved in the OKC bombing, however, were never detained or questioned by the FBI or other investigating agencies.
Ironically, however, the FBI eventually arrested Howe for making a bomb threat within weeks after government prosecutors learned that Stephen Jones, the lead attorney for Nichols’ convicted (and recently executed) co-conspirator, Timothy McVeigh, was planning to call Howe to testify in his client’s trial, held earlier in 1997. Matsch was also the judge for McVeigh’s trial.
After Howe’s arrest, Matsch ruled her testimony “irrelevant” to McVeigh’s case and did not allow her to appear for the defense.
Later, after Howe was quickly acquitted by a jury during her trial in Tulsa, the Nichols defense team, believing her credibility was restored, tried to call her to appear on behalf of Nichols. Again, however, Matsch intervened.
“The sensitive nature of what Carol Howe knew and how she came to know it spilled out in the closed-door hearing that took place on the eve of final arguments in the Nichols’ trial,” the McCurtain paper said.
During the closed-door session, Matsch admitted he had never read Howe’s file. According to the transcript:
THE COURT: …Then Carol Howe. That’s a matter that we should discuss, I guess. And we did find that the material that got sent over here under seal from Judge Burrage was still here. I guess it wasn’t designated on the record on appeal. And I directed that it – you be given an opportunity to look at that, and I think someone did.
MR. WOODS: Yes, your Honor. Mr. Thurschwell.
MR. THURSCHWELL: Thank you.
THE COURT: And Government counsel saw it earlier.
MR. MACKEY: Previously.
THE COURT: Now, what – does this mostly deal with the ATF records?
MR. THURSCHWELL: It’s the ATF file, if I’m not mistaken.
THE COURT: I can’t remember. I don’t believe that I ever saw it, actually. I just sort of handled the custody of it.
On the subject of what Howe specifically discussed with the ATF and FBI, lawyers for Nichols tried to make the case that her testimony would be relevant because of what she reportedly heard Elohim City members say:
MR. THURSCHWELL: Your Honor, she says that Andreas Strassmeier spoke about taking direct action against the federal government, including assassinations and bombings. She says that there was a – Robert Millar, who was the leader of the Elohim City community essentially preached about – let me find my notes – about gaining territory, expanding throughout the Midwest, and then speaks specifically about these states I mentioned before. She would say that Robert Millar traveled to Oklahoma City on a number of occasions during the conspiracy period meeting with other people there.
THE COURT: How does she know that?
MR. THURSCHWELL: I think she actually traveled with him on at least one of those occasions on January 29, 1995, and met with another – what I gather is a right-wing church of some kind, which is the – Elohim City is ostensibly a religious community, also.
Moments later during the session, Matsch began to openly question the necessity of allowing Howe’s testimony.
THE COURT: Well, isn’t all this hearsay?
MR. THURSCHWELL: I don’t believe so, your Honor.
THE COURT: Well, why isn’t it?
MR. THURSCHWELL: She had a direct relationship with Mahon and I believe was a member with him in these groups –
THE COURT: What she’s testifying about is what these people said.
MR. TIGAR: Yes, your Honor; but it’s not offered for the truth.
THE COURT: Well, what is it offered for?
MR. TIGAR: Well, it’s offered to show that these sentiments are expressed at that place at that time, which are “we intend to blow up federal buildings, or we have certain express political beliefs.”
THE COURT: Yes. And I have no problem with the generalized beliefs in the manner that this Alliance – what is his name?
MR. MACKEY: Coffman.
THE COURT: Yeah – Coffman testified to. But when it gets down to specific plans like this, then it’s hearsay in my view because I don’t think that is offered for or can reasonably be contained as being an expression of a state of mind. That’s planning.
MR. TIGAR: Well, Rule 803(3) does say plan, design and so on, your Honor.
THE COURT: Well, that’s where I’m drawing the line.
MR. TIGAR: All right.
THE COURT: Because I don’t think that it’s, you know – I think this is a 403 issue as well.
MR. TIGAR: Well, then is it your Honor’s ruling she could testify about the – her understanding of the political ideology or in the same way that Mr. Coffman did, what Elohim City is about?
THE COURT: That, I think – I think that’s admissible.
Matsch’s ruling gave the Nichols team no room to maneuver, but did allow government lawyers to paint Howe as a white supremacist and racial extremist – which they did during her few minutes on the stand at Nichols’ trial.
Consequently, “as a result of Matsch’s decision, lawyers for Terry Nichols would not be able to open up Howe’s informant file and establish for the jury that she had been recruited by the government after being exposed to the ‘White Power Movement,'” the McCurtain Daily Gazette said.
Also, jurors would not be able to see a copy of the contract Howe signed with the federal government to become an informant – “a contract the ATF entered into with her only after she passed a polygraph examination, establishing her truthfulness and loyalty to the government,” the paper said.
Matsch’s parameters also would not allow jurors to see the more than 200 pages of statements, testimony and handwritten notes Howe supplied the ATF, outlining the Elohim City group’s intentions.
Nichols was eventually found guilty and sentenced to life in prison. However, he has appealed his conviction to the U.S. Supreme Court, and has asked the government to respond to recent revelations that the FBI withheld evidence in the case that there were others involved in the plot.
In Oklahoma City, prosecutors there say they intend bringing Nichols to trial on state murder charges, the paper said. Prosecutors and defense lawyers in the state case have also complained the FBI has not given up all the evidence they have.