Sentencing Hearing for Timothy McVeigh: Closing Arguments of the Prosecution

U.S. District Court, Denver, Colorado
June 12, 1997
Beth Wilkinson

May it please the Court, ladies and gentlemen of the jury, it's time. It's time for justice. A little over two years ago, Timothy McVeigh decided that he had no time for justice. He believed that it was his right to murder innocent women, men, and children. He believed that he could take the law into his own hands and declare war on his fellow Americans. He killed without regard to race, creed, color, or age. He destroyed the lives of families in Oklahoma City; also in Orlando, Florida; Fort Worth, Texas; Evergreen, Colorado; and everywhere else in the United States. Without even a nod to justice, he stole the innocence of our children who, like us, never believed that in America an American citizen would kill his own in the name of patriotism. He gave his victims no warning. He scoffed at the concept of due process, and he mocked the lessons that he learned as an Army soldier. He carried out a daytime assault to ensure maximum carnage. By killing all of those babies, those mothers, those fathers, those grandmothers, those "Paw Paws," by killing and destroying so many others, Timothy McVeigh revealed his total disregard for the rights of his fellow citizens, including the most basic, their right to life. But today, despite his total disregard for life, liberty, and justice, we give the defendant what every person in this country deserves: Justice. Timothy McVeigh has been presumed innocent. He's had a public trial, and he has had citizens from his community consider all of the evidence before declaring him guilty beyond a reasonable doubt to every crime charged. Unlike his victims, Timothy McVeigh receives justice. But as you know, justice is not finished. There is one decision that you all must make as the conscience of the community. Justice requires that you consider all of the information presented about this crime and about Mr. McVeigh. And then as Judge Matsch told you during his preliminary remarks, you must make a moral judgment about the worth of a specific life balanced against the societal value of a deserved punishment.

You may recall that during his opening statement, Mr. Hartzler told you that the Government would present so much evidence that your decision on guilt would be a rather easy one. That is not—that is not the case at this stage. Everyone acknowledges that the decision that you are about to make is a difficult one. Weighing the worth of anyone's life is a gut-wrenching task. But you are not alone. The citizens of this country, the community whose conscience you now represent have already determined that the death penalty is appropriate in certain cases. Congress has passed laws, and the death—for the death penalty and developed rules like those that govern the sentencing hearing that we just experienced.

And Judge Matsch will instruct you on the law. He will tell you the aggravating and mitigating circumstances that you are to consider, and the statute will provide you a framework for making your decision. And each and every one of you told us during voir dire that you believed that the death penalty was appropriate, a just punishment in certain circumstances. Now it is time for you to set aside your emotions, be them sympathy, compassion, or fear, and make a decision about Timothy McVeigh based on the facts. In his opening statement, Mr. Burr reminded you that the sentencing decision of life or death could only be based on the facts, and we agree. This trial is not a place for revenge, anger, or fear. It is for justice; it is time for justice, and justice demands that you deal with the facts. 168 people, including a baby that was only four months old and a man as old as 73, are dead. There would not be enough seats in this courtroom if we could bring them all back today. Those are the facts, and Timothy McVeigh is responsible for those facts. 19 children under the age of five were brutally murdered and ripped from the arms of their parents. Those are the facts, and Timothy McVeigh is responsible for those facts.

Eight law enforcement agents who proudly served their country were assassinated for doing their jobs. Those are the facts, and Timothy McVeigh is responsible for those facts. Over 500 people were injured, the walking wounded. And those people, including little P. J. Allen, carry around horrific injuries, scars, and painful memories that will haunt them forever. Timothy McVeigh did that. Timothy McVeigh drove a truck bomb packed with explosives to the Alfred P. Murrah Building. As he watched his unexpecting victims go into the building, he detonated an enormous bomb in the most bloody domestic terrorist act in the history of our country. There is no doubt that is a fact. Clint Seidl was afraid that the man who killed his father—that killed his mother, excuse me, was after him and his father. Little five-year-old David Westberry wanted to die so he could go to heaven to be with his "Paw Paw." And Special Agent Donald Leonard of the Secret Service will never see his son graduate from college, nor will Agent Leonard's son ever see the proud smile of a father when he could have seen his son receive his college diploma. Those are the facts, and Timothy McVeigh is responsible for those facts.

... Take a moment before we review the evidence and the information you received during the penalty case and look at Timothy McVeigh. Look into the eyes of a coward and tell him you will have courage. Tell him you will speak with one unified voice as the moral conscience of the community and tell him he is no patriot. He is a traitor and he deserves to die. There are many reasons why the defendant should be punished with the ultimate sanction that our community has reserved for only the most heinous of crimes. Those reasons set out as aggravating factors may be weighed against the mitigation that the defense has presented. ... I would like to review the information that you've received during the penalty hearing that proves beyond any doubt that the defendant's crimes were so despicable and the consequences of his murders so horrific that the only just sentence is a sentence of death.

... [Y]ou will see that you have to make four decisions. The first is to determine whether the defendant intended his crimes. Most of these issues you've already dealt with during the guilt phase.

Once you find that the defendant intended to commit his crimes, you'll be asked to review the statutory aggravating factors, which I will discuss with you in a minute. If you find that the Government has proved one of those factors, which we submit you will have no problem doing, you can then move on to the nonstatutory aggravating factors. After that, you will look at the defense's mitigation factors. There are numerous factors listed there. But most importantly, after finding whether all of those factors exist, you must weigh the importance of each factor.

Now, you will receive no guidance about how one factor weighs or the import of one factor versus another. But I'd like to give you just one example. One of the mitigation factors for Mr. McVeigh is that he had no criminal record, and of course we don't dispute that. But when put on the scales of justice next to 168 dead people, that factor—that mitigation factor of no criminal record is a mere pebble compared to the pounds of death and destruction that Mr. McVeigh caused. The first aggravating factor that you'll need to consider is whether Mr. McVeigh engaged in substantial planning and premeditation. During his opening statement for this phase, Mr. Ryan reviewed some of the evidence that you heard during the trial, and I don't want to repeat that for you, but I do want to remind you of one thing. When Timothy McVeigh and Terry Nichols obtained the bomb components and hid them in storage sheds, they waited. Timothy McVeigh laid in wait for his innocent victims. He waited months and months, while little children—like Elijah and Aaron Coverdale—went to America's Kids, the day-care center in the Murrah Building. Perhaps there's nothing more painfully poignant than the name of the day-care center in this case, America's Kids. Timothy McVeigh and Terry Nichols waited for those children and those government workers and for those citizens to go to Social Security Administration before he killed them on April 19, 1995.

And what mitigation evidence have you heard in contrast to the Government's evidence? The defense has suggested that Timothy McVeigh may have plotted and planned an act of domestic terrorism because he was angry about Waco. He thought the government had acted improperly, and he believed that the government had killed innocent women and children. But instead of doing what many patriotic Americans did—question their government, write to their congressmen, protest the Department of Justice—Timothy McVeigh turned around and killed and maimed hundreds of innocent men, women, and children himself.

But of course, we know that Timothy McVeigh had been predicting an uprising by the people against the government long before Waco happened. He told Sergeant Rodriguez that part of the reason he opposed gun control was because he didn't want the government to know who had registered or who had possessed weapons if there was an uprising.

And where did he learn this? Well, one place was in The Turner Diaries, because that was a major theme of that novel. That was the same book that Timothy McVeigh carried with him everywhere he went. In fact, you heard that he even carried it to field maneuvers way back in 1990. So it wasn't just Timothy McVeigh's outrage over Waco that caused him to kill innocent victims, but a long-held belief that any form of gun control would put citizens at risk and justify a bloody confrontation with the government. He believed that violence and terrorism were legitimate tools to use against a democratically elected government that he disagreed with. Even if you accept the mitigation information about Waco and Timothy McVeigh's misperceptions about the siege, what in the world did Tevin Garrett have to do with Waco? He and Blake Kennedy and many of the other babies who died in the Murrah Building were not even born when Waco occurred. What type of mitigation is it to speak out against an alleged government misconduct by murdering little babies? ... How could there ever be a reason to kill men, women, and children whose only mistake was to be in a federal building on April 19, 1995? You know that Timothy McVeigh planned and waited to execute his deadly crime on the anniversary of Waco, so there can be no doubt that there was substantial planning and premeditation involved in this crime, and on the other side of the scale is the defendant's pathetic explanation of his anger towards the government. You should dismiss his attempts to blame the government for his own monstrous conduct. He and he alone is responsible for his crimes, and no perception or misperception about Waco, no matter how strongly felt, mitigates the death and destruction, the injury and the ever-lasting pain he has caused.

Mr. Burr asked you during his opening statement to accept Timothy McVeigh's views as some sort of separate reality. It was not a reality. It was a misguided fantasy. And if Timothy McVeigh's beliefs about Waco justify murder, then every citizen in our community who disagrees with his government can do the same. Our democracy permits those who disagree with the government to speak out. This is the freest country in the world. We feel so strongly that everyone should be able to say their piece that the right to freedom of expression is the very first amendment in our Constitution. But what we do not and what we must not tolerate as a free society is someone trying to impose their political will on the rest of the community through violence and terror. ... Mr. Ryan read to you a few of the chilling passages from The Turner Diaries that show in black and white the consequences of a large truck bomb being used against a building. The killing and maiming of hundreds of occupants of the targeted building, the pain and the suffering of the dead and the survivors, the destruction of the building and the risk to so many others in the area, all of this was known to Timothy McVeigh long before he drove that truck from Kansas to Oklahoma City and lit the fuse in front of the Murrah Building. He knew from reading The Turner Diaries what kind of hell he was going to unleash. One need only consider the size of the bomb, somewhere between 3,000 and 6,000 pounds of explosives, to know that Timothy McVeigh intended to kill people. No one builds a bomb of that size and that force unless they want to kill as many people as possible.

And what does the defense put forth as mitigation? You heard his Army colleagues tell you that he was a good gunner; in other words, a good killer. He could, in the words of Sergeant Daniels, put steel on steel—which is like fire and hit the target, whatever he's aiming at—he's got to be able to hit it fast, quick, and kill. Well, tell that to Baylee Almon, tell that to her mother. Baylee had no steel protecting her in the day-care center. And tell that to Diane Leonard who told you that if her husband could have defended himself, he would have. [McVeigh] told Michael Fortier and his sister Jennifer that federal agents deserved to die for the fire at Waco. But even more obvious than that, he chose the Murrah Building, which he knew contained offices of federal agents, agents he believed were at the Waco siege in 1993. He killed American law enforcement agents for doing their jobs, upholding the law, and protecting our society, for fighting crime, for interdicting drugs, for seizing illegal currency, and for protecting the presidents of the United States. But those eight law enforcement agents, like so many of the other victims in the Murrah Building, were also school teachers, fathers, grandfathers, new wives, former military soldiers, and of course public servants.

Kay Ice spoke to you about her brother, Paul, and she told you what kind of public servant he was as a federal agent. She said, “First and foremost what I want you to know is what a patriot my brother was. He was so proud of being an American ever since he was a little boy. He loved this country. He loved being a Marine. He loved being a government agent.” Those were the kind of public servants that Timothy McVeigh killed. For that type of conduct, [a fellow American killing public servants to serve some twisted political agenda] which is so detrimental to the fabric of our society and the security that we enjoy every day, Congress has said that that should be a specific aggravating factor justifying the death penalty. Here we have proven beyond any doubt, and you should so find during your deliberations.

The fourth factor, the fourth statutory aggravating factor that you need to look at is whether the defendant...caused a grave risk of death to others in committing his crimes. Of course he did. You heard evidence of that at trial, and you heard it during the penalty phase. You saw that many, many people were placed in harm's way and faced a grave risk of death on April 19, 1995. ...

The fifth factor you must consider is whether the defendant caused serious physical and emotional injuries. You saw witness after witness come forward and tell you about the physical and emotional injuries that they and their loved ones suffered. We've already discussed some of the physical injuries, so I want to turn to the emotional injuries that you heard about. ... This factor, this factor alone, is enough when put on the scales of justice to sanction and warrant a sentence of death for Timothy McVeigh.

As the Judge will tell you, you have to decide how to weigh each factor, and of course you have to find one of the statutory factors first. But I submit to you, killing 168 people is enough. This is the crime that the death penalty was designed for. If not 168 people, then how many? Would 20 children have been enough? Would 10 law enforcement agents have been sufficient? Would 25 visitors to the Social Security office have been necessary to warrant the death penalty? The numbers—the number of deaths in this case is so overwhelming that it's difficult to contemplate how the murder of 168 individuals with families and friends, churches, hobbies, volunteer activities, and interests would not be enough in and of itself to warrant the death penalty for the individual responsible no matter how good a neighbor he was, no matter how bright a student, no matter how hard a worker, and especially how angry he was at his government. In contrast to these 168 people, the defense has urged you to consider Timothy McVeigh, and you should. We learned from the witnesses presented by the defense that Timothy McVeigh was brought up in a nice home, with parents that loved him. Timothy McVeigh had good adult role models throughout his youth and friends in school. Both his parents came before you and told you about Timothy McVeigh, but they told you about the Timothy McVeigh they used to know. They told you about Timothy McVeigh as a child. 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. He is an adult who is responsible for his conduct, and he should be held responsible for his actions.

While Timothy McVeigh has had the benefit of his parents asking for his life, the victims of his crimes had no one. There was no Richard Burr to eloquently plead to Timothy McVeigh to save the lives of those people on April 19. Their mothers were not allowed to beg for their lives. And even if someone had pleaded for them, Timothy McVeigh would have turned a deaf ear. You heard that months before the crime he decided to murder all of those people because, in his words, they were part of an evil empire. ...

Timothy McVeigh murdered more American citizens in one day than were killed in combat in the entire Persian Gulf War. So to call him, as Mr. Burr did in his opening, “the most soldierly among us” is an insult to every man and woman who served in our armed services. Many of you have been in the military, yourselves, or have fathers or mothers who have served.

You know, as Sergeant Hardesty told you, that military service is a privilege, it's not an excuse. Timothy McVeigh knew that a soldier swears to uphold and defend the Constitution. He violated that oath on April 19, 1995, and he lost his right to be called a good soldier. The final factor that you must consider when determining whether Timothy McVeigh should live or die is the severe impact this crime had on the victims. This I must tell you, ladies and gentlemen, must be the understatement of this case. Timothy McVeigh's crimes had a severe impact on the victims. In a little less than two and a half days, with approximately 38 Government witnesses who told you about the effects of Timothy McVeigh's murderous conduct, described for you the pain, the suffering, and the loss, they, as I'm sure you realize, were just a small sampling of the actual persons affected by this crime. We brought you just the tip of the iceberg of the suffering and loss, but we did it not to get your sympathy or to play to your emotions.

The stories that you heard from the witnesses were about individuals, but they were also a representative sample of the pain and the loss felt by people across America. We did not want to bring you those facts, those painful, heart- wrenching facts, but Timothy McVeigh caused all of that, and you are entitled to hear those facts. We presented fathers and mothers, sisters and grandmothers, children and rescue workers, who told you about the difficulties they have suffered from losing their loved ones or from incurring physical and emotional injuries, themselves.

But really, it was the defendant, Timothy McVeigh, who brought you those witnesses. He caused Michael Lenz to lose his wife and his unborn son on April 19. Timothy McVeigh brought emptiness and loss to Evergreen, Colorado, when he killed David Klaus's daughter, forcing Mr. Klaus and his wife to change their wedding anniversary because April 19 is now too filled with sorrow to even contemplate celebration.

Officer Don Browning must live with the haunting memory of the little girl who approached his dog, Gunner, and said, “Please, Mr. Police Dog—please find my friends.” This is a nightmare that Officer Browning will live with for the rest of his life, because he didn't find any of the little girl's friends alive. Kathleen Treanor talked to you about the horror and the loss of not just losing her youngest daughter but also her in-laws, who just happened to be in the Social Security office in April of 1995. Todd McCarthy brought home the reality of trying to raise a son who lost his grandfather in the bombing, the difficulty he will have explaining to his son why his grandfather was killed on April 19. And Sergeant Greg Sohn has dealt with a similar problem, explaining to his blended family of five why their mother will never be at another birthday party. Cindy Ashwood told you that to this day, she still turns around in her chair in her office to try and call her sister, Susan Ferrell, even though she knows she died on April 19.

The enormity of the impact of this crime cannot be overstated. It can barely be comprehended. It is not just the immediate families that have suffered loss; but communities, churches, employers, schools across this country have endured the repercussions of Timothy McVeigh's crimes. You heard Pam Whicher when she told the story of her daughter. Mrs. Whicher, a widow of a Secret Service agent, Alan Whicher, told you about the paper her daughter wrote about the day that changed her life. In that paper, her daughter told of a struggle to deal with her father's murder. She said, "I never knew such a dark, horrible place existed until I had to claw my way out of there." She could have just as well been speaking for the entire nation, which had never before had to endure such monstrous crimes as Timothy McVeigh's. We never knew that such a dark and horrible place could exist in America until Timothy McVeigh sent us there.

In his opening statement to you, Mr. Jones recognized that the bombing at Oklahoma City was seared into the memory of our generation like the attack on Pearl Harbor was to the generation before us. Mr. Jones was right. Like the attack on Pearl Harbor, the bombing in Oklahoma City threatened our sense of security within our own borders; and this threat to our insecurity (sic) came from and was caused by Timothy McVeigh. He betrayed every American. He betrayed his fellow soldiers from the Persian Gulf. He betrayed his family, and he betrayed you. He is a traitor who chose of his own volition to betray his country by murdering as many United States citizens as he could. No person, no government action, no second or third reality that Mr. Burr mentioned, made Timothy McVeigh murder 168 of his own people. As the moral conscience of the community, you must speak on behalf of all Americans who rightly refuse to accept any justification for this horrible crime. It is time for justice. It is time to impose the ultimate sanction on the man responsible for this terror. Serve justice, speak as the moral conscience of the community, and sentence Timothy McVeigh to death.

Beth Wilkinson served as Special Attorney to the United States Attorney General assigned to the prosecution team for the Oklahoma City bombing trials. She is currently co-chair of the Constitution Project’s Death Penalty Initiative, and a partner in the Washington, D.C. office of the law firm of Latham & Watkins.