McVeigh Closing Arguments Draft as of May 2001
Copyright 2001 by Robert M. Beattie Jr., All Rights Reserved.
THIS DOCUMENT WAS WRITTEN FOR A UNIVERSITY CLASSROOM EXERCISE. THE MOOT-JURY EXERCISE / MOOT-TRIAL OF TIMOTHY J. MCVEIGH IS SCHEDULED TO FIRST BE CONDUCTED 13-14 JULY 2001 AT PITTSBURG STATE UNIVERSITY, PITTSBURG, KANSAS.
THIS IS A "CLOSING ARGUMENT" BY THE "DEFENSE ATTORNEY," WHO IS THE COURSE INSTRUCTOR. A "CLOSING ARGUMENT" BY THE "PROSECUTING ATTORNEY" IS ALSO WRITTEN BY THE SAME INSTRUCTOR. TO SIMULATE REAL JURY DUTY, BOTH ARGUMENTS ARE INTENDED TO BE PROVOCATIVE.
NO INFERENCE SHOULD BE MADE THAT ANY PARTICULAR ARGUMENT OR ASSERTION IN EITHER PROSECUTION OR DEFENSE CLOSING ARGUMENTS REFLECT THE VIEWS OF THE UNIVERSITY, THE INSTRUCTOR, OR THE STUDENTS.
Written closing argument of defense attorney for the Timothy J. McVeigh moot-jury exercise. Verbal delivery may be altered to account for fresh material. Mr. McVeigh is charged with treason under State law (as was John Brown) in the criminal indictment. --
"The mass of men serve the state thus, not as men mainly, but as machines, with their bodies. They are the standing army, and the militia, jailors, constables, posse comitatus, etc. In most cases there is no free exercise whatever of the judgment or of the moral sense; but they put themselves on a level with wood and earth and stones; and wooden men can perhaps be manufactured that will serve the purposes as well. Such command no more respect than men of straw or a lump of dirt. They have the same sort of worth only as horses and dogs. Yet such as these even are commonly esteemed good citizens. Others – as most legislators, politicians, lawyers, ministers, and office-holders – serve the state chiefly with their heads; and, as they rarely make any moral distinctions, they are as likely to serve the Devil, without intending it, as God. A very few, as heroes, patriots, martyrs, reformers in the great sense, and MEN, serve the state with their consciences also, and so necessarily resist it for the most part; and they are commonly treated as enemies by it."
Your Honor, Mr. Prosecutor, Ladies and gentlemen of the jury, the words I have just spoken are from one of the greatest Americans, a man named Henry David Thoreau. He wrote them in a work he titled "Civil Disobedience." He was speaking at the time of a great conflict in the era of the American Civil War. He was talking about those heroes who fought for freedom, even in the face of ridicule and opposition by the very people he was trying to set free. He was talking about people who engaged in various forms of civil disobedience. He was talking about people like John Brown [show photo of John Steuart Curry wall mural on second floor rotunda of Kansas State Capitol, http://www.washburn.edu/cas/art/cyoho/archive/AroundTopeka/capitol/Curry1.jpg], of whom Thoreau said:
"When I think of him, and his six sons, and his son-in-law, not to enumerate the others, enlisted for this fight, proceeding coolly, reverently, humanely to work, for months, if not years, without expecting any reward but a good conscience, while almost all America stood ranked on the other side, -- I say again, that it affects me as a sublime spectacle."
Thoreau wanted to know why all the rest, who also opposed slavery, did not join John Brown. It’s a good question. But it is one with an easy answer. In the course of this trial you have learned several things. You know that almost everyone in almost every society is a conformist. People go along with the crowd. Surveys show that our absolute greatest fear, even more than death, is public speaking. And why is that? Because public speaking risks public ridicule. According to anthropologist Dorothy Billings, ridicule is the most powerful social force in any culture.
Timothy McVeigh is a man who took such risks. He took a path few will risk. He spoke his mind both with words and with deeds. He was a decorated hero of the Gulf War. He was a military veteran. No one can take that history away, though the revisionists try.
You have learned of Timothy McVeigh’s character. A strong man. A man of unquestioned honesty. He was trusted with the most serious and consequential tasks in every arena of life. In civilian life he worked as a guard, a most trusted position. In public life he worked as a soldier, a most trusted position. He was no coward. He was a dependable leader. Solid. Patriotic. A partisan in the romantic sense.
He was a man in his times, and a man of his times. He stood astride different worlds and realized that the America he loved and defended consisted of many views. But he was deeply saddened that the world of the public America, the official government of superficial men and women more concerned with their own transient comforts and ambitions than with the welfare of others, THAT America was actually doing more harm than good to the common citizen.
He tried to do his duty. He tried to do his duty as a partisan and a patriot and a hero. He tried to do it by talking and by writing and by doing his duty within the context of the official government. What did he find? He found that honest gun owners, who were trying to comply with a myriad of fine-print regulations, were under siege by unaccountable bureaucrats representing the official government, and the common citizen was unconcerned. He found that the government could kill an innocent mother at Ruby Ridge, and the common citizen remained unconcerned. He found that the government could killed 78 women, children, and men on live television, and the common citizen did not rise up in anger. He found that his passion and honesty and clarity were not shared by most citizens. He was an earnest young man who still loved the citizens, but he was disheartened by their inaction.
He suffered undeserved misfortune himself. His mother left him. She abandoned him and his family. Just walked out. Official society did not seem to care about the trauma this caused to those abandoned. In some ways, official society seemed to celebrate it as an act somehow vindicating women’s rights, when what it was was a traumatic abandonment of a family that loved and trusted her. And because official society did not even encourage promise-keeping, let alone penalize people for not keeping their most sacred promises, this act was repeated in a hundred thousand families across the country.
Years later, he suffered more unjust misfortune after he returned home to America a hero of the Gulf War. He was not provided sufficient time to recuperate before being scheduled to take a test in which only the heartiest prevail. He wanted to become a member of elite soldiers, and he would have been a great one. He would have been a model among America’s model soldiers. But he was unfairly handicapped by fatigue and possibly more, possibly Gulf War Syndrome, possibly Post Traumatic Stress Syndrome, though defendant denies that his actions were a consequence of any illness or disease.
So, Timothy McVeigh suffered abandonment, and a sort of social class prejudice, as a child, as a soldier, and as a gun owner. But he did not whine about his misfortune. He learned from it, tried to understand it, and tried to apply the lessons he learned.
One day, he came across a book titled The Turner Diaries. Although the press reports focus only on the race aspects of this book, those of you who have the book will recall that it begins with an officially lawful midnight raid on the protagonist’s home for the purpose of searching for and seizing any guns found on the premises. A new law that required the confiscation of all firearms made otherwise law-abiding citizens felons. The protagonist was mistreated by the invaders and, as a neighbor young couple learned in a separate raid, the people who kept guns would be treated harshly. They were taken outside handcuffed, in their underwear, while their baby was left alone in their home. All faced ten years in federal prison for mere possession of a firearm. Earl Turner, the protagonist of the novel, was a good man, forced against his will into this fight, but he did fight for freedom.
Timothy McVeigh was taken by the message of freedom in this book. Because he talked of freedom and of politics, after the Oklahoma City bombing a paid informer reported Timothy McVeigh as possibly being a participant in the bombing. The FBI investigated and said that McVeigh loved the book, THE TURNER DIARIES, and that the explosion at the Oklahoma City federal building paralleled an explosion described in the book that McVeigh loved. It was on this basis that Timothy McVeigh was held.
We have gone over the physical and circumstantial evidence in some detail. The physical evidence is incomplete, and the inferences that can be drawn from this evidence are many. The prosecution wants you to conclude that one thing is certain, that Timothy McVeigh engaged in treason against the United States, and was heartless enough to murder, MURDER they claim, innocent children, innocent families, and innocent federal officers. For this, they want you to convict Timothy McVeigh, and sentence him to death.
But I ask you to consider the following in your deliberations. First, I want you to doubt that the evidence supports the prosecution’s claims. There are descriptions of the men – TWO men – who reportedly left a truck in front of the Murrah Building, only one of which superficially resembles Timothy McVeigh. You have studied the work of social scientists Dr. Elizabeth Loftus, Dr. Gary Wells, Dr. Brian Cutler, and Dr. Stephen Penrod on the topic of mistaken eyewitness identification.
In their book MISTAKEN IDENTIFICATION, after hundreds of experiments Drs. Cutler and Penrod reported that trained witnesses (bank tellers, etc.) who report positive, certain identifications, are wrong 36% of the time. Typical store clerks, who may or may not have received eyewitness training, were only accurate 8% of the time, comparable to chance, to random guessing.
Consider these findings in concert with the findings on the malleability of memory by Dr. Elizabeth Loftus. You’ll recall the famous "Lost in the Mall" study. Twenty-five percent of all subjects who initially completely denied that an event occurred will, starting in one week, after only the most elementary suggestion and reinforcement, completely agree that they participated in an event that never took place.
And I refresh your memory on the findings by Dr. Solomon Asch on conformity to obviously erroneous opinion. Recall the famous "Identify the two lines of equal length" study. Four of five subjects will, at least once, with absolutely no pressure -- other than that all the others in a group agree (all the other members of the group are experimenter confederates) -- that two lines of obviously quite different lengths are in-fact identical in length. Over a third of all subjects will ALWAYS agree with the group, no matter how ridiculous their conclusions.
Knowing as much social science as you do, it is difficult for me to believe that on this flimsy circumstantial evidence you can find beyond a reasonable doubt that Timothy McVeigh matches the conflicting descriptions of a man who was in the exploding truck.
More, the news media initially reported that it was an LP gas truck that exploded in downtown Wichita that day. I heard news reporters speculating on the criminal charges and civil lawsuit against the truck company that was responsible for this calamity. Later, it was believed that this was the work of Mid-Eastern terrorists, and Arabic men were detained in airports. That night a US congressman called for air-strikes against known mid-east terrorist groups. That first day and into the second day, their were many calls for reprisals, but none against law-abiding gun owners. Not yet.
But now, the government and the news media want you to believe that Timothy McVeigh, with the help of unknown others, built a bomb for the purpose of starting a revolution against the government of the United States of America. TIMOTHY MCVEIGH IS A DECORATED WAR HERO! He is sworn to protect America from all enemies, foreign and domestic. They threatened to try his sister with treason and see that she received the death sentence. He is here today because he has tried to protect those he loved.
The evidence the government proffered against Tim is primarily circumstantial, although Mr. McVeigh has since explained his purposes. The prosecution has tried to inflame your passions so that you will convict whoever is accused by showing you horrifying evidence of the children who died. But there is conflicting evidence as to whether Timothy McVeigh knew that children would be in the Murrah building.
Let’s look at some of this circumstantial evidence a little more. If you accept that Timothy McVeigh was somehow involved with this explosion, can you conclude from this circumstantial evidence that beyond a reasonable doubt his intent, his state of mind, was malicious? Was his intent unpatriotic? Was it treason? Was his action against the American people, who are by law as well as by political theory the true sovereigns of America? Or was his state of mind selfless? Was his act against a symbol, the Murrah Building, and not against the majority people who were inside?
Earl Turner, the protagonist of the Turner Diaries novel, was a simple patriotic soldier in a great American revolutionary war. Bit-by-bit American government had taken our freedoms. We would have reacted strongly had the government tried to take our freedoms all at once. But since it was done little-by-little, each citizen went along to go along. When I was a student at law school, Washburn University of Topeka, Kansas, I was taught that each time the U.S. Supreme Court takes away a freedom, a right, they write in the text of their legal opinion that they are not taking away any freedom or right. I was also taught the same thing in political science courses with respect to the legislature’s statutory enactments. But, like you, Timothy McVeigh learned the difference between semantic representations of reality and reality itself. The map is not the territory. The thing is not the thing named. The stated aspirations of policy and the way programs are executed are two different things, sometimes quite deliberately the opposite things.
Remember, in Europe during World War II, when Anne Frank was arrested and executed, everything that the government did was lawful. The arresting officer was a good police officer and he had absolutely no reason to question his orders. He was told that the people he arrested were lawbreakers. The people who imprisoned Anne Frank were told that she was a lawbreaker. And the people who executed Anne Frank were told she was guilty of a crime that merited death. They were obedient. They did not question authority.
But those who see clearly do question authority. But their questions are not made in the senseless way television personalities question their "guests" for the purpose of melodramatic entertainment. Nor in the way that hired advocates question witnesses at trial. But Henry David Thoreau wrote of those heroes who question authority for the purpose of aiding their understanding, of discerning the causes of behavior that leads to tyranny, and of planning their course of action to fight it.
In our American Declaration of Independence, Thomas Jefferson wrote: "All experience hath shewn that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed." Most people will suffer the torments of the devil before they will change the status quo. In fact, as you’ve learned from the studies on conformity, most people are eagerly seeking to conform to the status quo as quickly as possible, no matter what the cost. The entire "fashion" and "style" and advertising industry depends on the fundamental psychological principle of conformity. And as you learned from our brief review of the findings of cultural anthropology [including culture, cults, and sub-cults], Americans are the most conformist people in the world – just remember how we observed at the beginning of the school year that the majority of you conformed to the latest fashions, the same shoes, same eyeglass frames, same hairstyles – while at the same time Americans deceive themselves by claiming to be the most independent and free people in the history of the planet.
That is why Thoreau wrote that heroes, patriots, and reformers who serve the state with their consciences are generally treated as enemies by it.
Let’s look at this in slightly different contexts. What if Timothy McVeigh did perform this act, but it was as a soldier? Would it have been a war crime? In my opinion, it would not. American soldiers in the Gulf War buried people alive, but that was an act of war, not a war crime. American soldiers incinerated civilian non-combatants, children, who just happened to be recently born in Baghdad. The soldiers who killed them were not tried as war criminals. Acts that otherwise are criminal, are, in time of war, legal.
If Timothy McVeigh is executed, his killing will not be illegal. The executioner will not be tried for murder. One may legally kill people, if such killing is done lawfully. Had Timothy McVeigh been a soldier acting under orders, and participated in events killing 168 and causing 500 other casualties, his act would not be murder.
And even when soldiers do commit murders in time of war, they are often praised as American heroes, rather than condemned as villains. Lt. William Calley did murder 22 children, women, and few very old men at My Lai 4 in Viet Nam. The jurors who unanimously convicted him beyond a reasonable doubt were all experienced Viet Nam combat officers. Lt. Calley was charged with murdering 109 civilian children, women, and men, but convicted only of 22 murders and the attempted murder of a child. Lt. Calley had shot the child attempting to kill him, but the child lived.
After Lt. Calley was convicted, was he executed? Did he serve hard time? Did he even serve a life sentence? No. The Kansas legislature, our legislature, echoed the sentiments of the majority of Americans and offered a resolution calling for Lt. Calley’s freedom. President Nixon responded by immediately commuting Lt. Calley’s sentence. William Calley has worked in a jewelry store for the past thirty years. Why? Because sometimes people who are seen as villains by some people for their acts are seen as heroes by others.
John Brown wanted to set men free. He believed in the Biblical teaching of being his brother’s keeper. He tried peaceful methods of liberation. He tried words. He tried civil disobedience. He was forced to defend himself when attacked. And, eventually, he was forced to try deeds. When he attacked Harpers Ferry, he tried to start a general revolution to set men free. For his acts, done with the purest and most blameless motives, the government arrested him, convicted him, and executed him.
At the time, the prosecution and most of the American people focused only on those who Brown had killed, not on why they died. But, only a year later the Civil War started. After much bloodshed, men were set free. Brown was vindicated only after his death. So this person who stood alone, who was condemned, and who died, is now immortalized in the 2nd floor mural in the Kansas State Capitol Building rotunda, and around the world John Brown is considered a hero.
Consider again this matter from Timothy J. McVeigh’s point of view -- presuming for the purpose of argument that you believe the accused, Timothy McVeigh, participated in some fashion in this event, including that he possibly designed, built, and delivered the bomb himself, as he described to the journalists. Consider that Timothy McVeigh was fearful that he had he stayed in the military he would soon be put in the position of the soldiers and law enforcement officers who arrested and executed Anne Frank. He was fearful that he could be ordered to kill innocent people. He legitimately feared that innocent gun owners would be rousted out of their beds in midnight raids. He feared that he could be ordered to participate in military assaults on church compounds, and participate in the murder of innocent men, women, and children, as happened in Waco. He feared that he could be ordered to murder an innocent expectant mother, such as happened at Ruby Ridge.
If not him, he knew it would be others like him, because it had happened at these earlier times and places. Timothy McVeigh is a well-educated, well-read, thoughtful, intelligent man. That means that he knew that he could disobey an unlawful order, but he knew that most soldiers would not disobey an unlawful order. He knew the Code of Military Conduct at the time of the Oklahoma City bombing.
Article 90, subsection 14c.(2)(a)(I) "An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime."
Under today’s law, the soldier and the police officer may be prosecuted either way. In retrospect, depending on the way the political winds are blowing, if one disobeys an order, one may be guilty of a crime against the State; if one obeys an order, one may be guilty of a war crime against the world. Timothy McVeigh is a man of conscience. He was afraid that someday he may be ordered to arrest innocent American gun owners, or perform other equally abhorrent acts. If he participated in this event in Oklahoma, he did so with blameless political motives. In every revolution there are men of vision and action. Timothy McVeigh is a man of vision and action.
The Oxford educated Rhodes Scholar, Harvard historian Crane Brinton, wrote in The Anatomy of Revolution, his classic evaluation of the English, American, French, and Russian Revolutions, "The first steps in revolution are by no means always clear to the revolutionists themselves, and the transition from agitation to action is not a sudden and definite thing in these four revolutions." [p. 69-70, revised 1965 paperback edition ] But what is common in all these revolutions is a distancing of the government officials from those they govern. In all these places in all these times, including America today, the officials of government, including those functionaries merely working for the leaders of the government, for the most part are living in comparative prosperity and security when compared with the majority of the subject governed people. It is often hard to say in retrospect exactly what led the common people to open revolt. The 1640 calling of the Long Parliament in England, the 1765 Stamp Act in America, 1789 meeting of the Estates-General in France, and the 1917 Women’s Day celebration in Russia are good historical markers, but at the time of their occurrence no one stood up and said "The revolution has begun." Even when signs of revolution are unmistakable, government officials often are blinded by their own self interest and either use propaganda to ignore, or are some genuinely brainwashed by their own rhetoric and unable to competently interpret the evidence, and reassure all that there is no change in the status quo.
The American government and American media appear mostly blind to the signs and signals of revolution in our own country. There is some type of social threshold that, when crossed, triggers growing resentment, leading either to reform or to revolution. Political methods have failed for most people, because it takes a lot of money to hire a lot of lawyers and experts to even have a chance to prevail in court. Timothy McVeigh and many like him unsuccessfully tried political methods. They tried the courts. They tried civil obedience and they tried civil disobedience. They tried and they failed. So, they looked to other, more direct methods. What happens with non-violent direct-action methods? The police put pepper-mace in your eyes, they handcuff you, and they throw you in jail. This has happened to environmentalists,
General George Washington and the other founding patriots were trying to resolve an intractable problem. Diplomacy failed, and it became necessary to use arms. Had General Washington and the other founding patriots been captured by the enemy, if they had been afforded a trial, they would have been tried for treason. Now, there are statues to their patriotism and sacrifice. No matter what you decide here today, in the future there will be statues saluting the memory and effort of a man who history will remember as General Timothy McVeigh.
If Timothy McVeigh, on trial before you, was trying to make an intelligent effort to solve an intractable problem, if he was trying to call to arms those who opposed the bureaucrats who put arbitrary limits on our freedoms, as dangerous as it may have been, if he was trying to serve you, was his act treason? Does it merit the death sentence?
John Brown at first tried to eliminate slavery without bloodshed. But just before his execution, the last thing he wrote was a correct forecast: "I, John Brown, am now quite certain that the crimes of this guilty land will never be purged away, but with Blood. I had as I now think vainly flattered myself that without very much bloodshed it might be done." [Louis Ruchames, JOHN BROWN: The Making of a Revolutionary 1969 The Universal Library.]
Timothy McVeigh resides here bloody but unbowed, his head erect, his soul at peace. He thanks whatever gods there be for his unconquerable soul. And he is quite certain that the crimes of this guilty land will not be purged away but with blood. It is up to you jurors to say how much blood is shed. If you do not set Timothy McVeigh free, history will condemn you the way history condemns the United States Supreme Court for the Dred Scott decision that made the American Civil War inevitable.
John Brown was sadly correct, as the blood shed in the Civil War would prove. But John Brown was trying to ultimately SAVE lives, by engaging in a little bloodshed, and thereby avoiding a great deal of bloodshed. In every revolution, there is a man of vision AND action. John Brown was executed after he acted on his vision at Harpers Ferry, Virginia. If you conclude that Timothy McVeigh acted on his vision, should you not also conclude that he did so with motives as pure and decent as John Brown’s? Timothy McVeigh’s entire life up to the point of his first arrest was one of decency, honesty, and service. In his multi-volume biography of Abraham Lincoln, Carl Sandburg wrote that we "would be served by a life of Lincoln stressing the fifty-two years previous to his Presidency. Such a book would imply that if he was what he was during those first fifty-two years of his life it was nearly inevitable that he would be what he proved to be in the last four."
Your jury instructions tell you that you are the conscience of the community. [That was in the real death-penalty instructions.] In your deliberations, let your conscience remind you that Timothy McVeigh was one of those troops you supported in the Gulf War. He fought for your liberty. He was a law-abiding citizen, friend, son, and brother. If he was what he was before April 19, 1995, hasn’t he also been the same man since then?
I ask you to find that in the civil case the evidence does not support a more-probable-than-not finding of wrongful death liability, or that clear-and-convincing-evidence supports a finding of punitive damages against Tim. The battery charge is an intentional tort. Is it believable that Tim McVeigh intended to hurt a particular named person? There is disputed evidence that Mr. McVeigh knew there were children inside the Murrah Building.
And in the criminal case I ask you to conclude that the evidence does not support a beyond-a-reasonable-doubt verdict of guilt of treason, nor does it support beyond-a-reasonable-doubt that the aggravating factors outweigh the mitigating factors in the question of recommending a death sentence against Timothy McVeigh.
The right to jury trial is the only right guaranteed four times in the text of the US constitution and in the constitution of every state. According to the United States Supreme Court in the case of DUNCAN versus LOUISIANA, we have a jury of citizens in criminal trials "to prevent oppression by the government," because without ordinary citizens as the last check and balance on government, the government is unrestrained in its power over the people. Without the jury system, the government can do whatever it wants. This retrial is as if it was the first trial. You can set Timothy McVeigh free so that he may continue his efforts on behalf of freedom. You are not bound by the verdicts of history. You can either rubber stamp and ratify everything the government would do if there were no jury, or you can fulfill and vindicate the constitution and be a voice for a government of, for, and by the people. By acquitting Timothy McVeigh of treason now, you can help your country avoid a great deal of bloodshed later. The choice is up to you.
[SEE DISCLAIMER AT BEGINNING OF CLOSING ARGUMENT.]
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