The Annals of Unsolved Crime

by Edward Jay Epstein

  SOLVED OR UNSOLVED?

  CHAPTER 30

  THE OKLAHOMA CITY BOMBING

  At 9:02 a.m. Central Standard Time on April 19, 1995, a huge truck bomb destroyed a large part of the Alfred P. Murrah Federal Building in Oklahoma City, damaging more than 300 other buildings and killing 168 people, including nineteen children at a day-care center. The building, which housed fourteen government agencies, including the DEA, the Alcohol, Tobacco, and Firearms Agency (ATF), and U.S. Army recruitment offices, was a symbol of the power of the U.S. government. The truck bomb was a massive device, containing over 5,000 pounds of ammonium nitrate, 165 gallons of nitromethane, and over 100 pounds of Tovex explosives, with a sophisticated dual-fuse ignition device, packed into a truck rented from Ryder under a false name. More than a dozen witnesses recalled seeing the truck driven through Oklahoma City that morning, and at 8:57 a.m it was recorded by CCTV cameras approaching the Murrah building. It was then parked under the day-care center in the building, locked, and vacated minutes before it detonated. The bombing was the deadliest terror attack America had experienced before the 9/11 assault and, understandably, caused a public outcry for justice.

  The first conspirator arrested was Timothy McVeigh, a twenty-seven-year-old Army veteran, who had been awarded the Bronze Star during the first Gulf War. As the evidence clearly showed, McVeigh had driven the truck bomb to Oklahoma City and detonated it. The second conspirator arrested was Terry Nichols, a forty-year-old farmer who had befriended McVeigh in the Army and who had helped him prepare and arm the truck bomb.

  Both McVeigh and Nichols were found guilty of a conspiracy to use a weapon of mass destruction. McVeigh was sentenced to death and executed on June 11, 2001. Nichols was sentenced to life imprisonment with no possibility of parole. The only other person charged was Michael Fortier, who pleaded guilty to not warning authorities of the attack. Since he was not involved in the attack itself and cooperated with authorities, he was sentenced to only twelve years and then released into the witness-protection program.

  There is no doubt that McVeigh, Nichols, and Fortier were guilty. Their convictions, however, do not settle the question of who else, if anyone, was involved in this act of organized terrorism. A decade after the execution of McVeigh, investigative journalists Andrew Gumbel and Roger Charles, sorting through more than 18,000 FBI witness interviews for their book Oklahoma City, found holes in the investigation that left open the possibility of a wider conspiracy. A major gap proceeds from the fact that no fewer than twenty-four witnesses said that they saw McVeigh, just before and after the crime, while he was either driving the truck or in the truck rental office, with an unidentified man who could not have been either Nichols or Fortier. This man’s fingerprints may have been among the more than 1,000 unidentified latent fingerprints found in the investigation, but that was not established, because, through an inexplicable investigation failure, the FBI did not attempt to match these unknown prints to the computerized FBI database or even to perform a comparison among them to see how many belonged to the same people. Since neither McVeigh nor Nichols had the military training necessary to build the complex bomb that was used, the existence of another conspirator might have provided some explanation of how the bomb was designed, built, and rigged.

  One reason this gap was not plugged, as the ATF and FBI documents unearthed by Gumbel and Charles show, is that there had been enormous pressure from the federal prosecutors to cut off the investigation. The prosecutors’ case against McVeigh and Nichols—who were tried separately—would not necessarily be strengthened by an increased numbers of conspirators. So, once Fortier had agreed to testify against McVeigh and Nichols, the prosecutors had no need to call many of the eyewitnesses to testify. Yet, even though convictions were obtained, the legal process failed to answer several key questions: How many conspirators were involved, and who, if anyone, was behind McVeigh and Nichols?

  On this score, there are three theories worth considering. First, there is the theory of the prosecution: that McVeigh and Nichols, acting by themselves, planned, financed, built, and detonated the truck bomb. In this view, all twenty-four eyewitnesses are mistaken and it is a closed case. Second, there is the theory advanced by Gumbel and Charles in their well-researched book that McVeigh and Nichols were in league with right-wing activists. Their investigation found that McVeigh and Nichols were in contact with dozens of members of militias, armed religious sects, White Supremacist groups, and neo-Nazi cabals that robbed banks and sold drugs to buy guns. They also dealt with individuals at a gun show who were involved in bomb-making. They therefore conclude that the mystery man in the truck came from a right-wing group that was involved in the plot.

  Finally, there is an Islamic-terrorist theory. Since Nichols made many trips to Cebu City in the Philippines in 1994, where his Filipino wife was attending Southwestern University, it has been suggested that he may have had contact with Islamic extremist groups based there, including Abu Sayyaf, an affiliate of al-Qaeda. For example, Stephen Jones, one of the trial attorneys for McVeigh, claimed to have evidence that Nichols attended a meeting with the Islamic terrorist Ramzi Yousef, who in November 1994 was on the same campus of Southwestern University as Nichols’ wife. It was Yousef who had organized the first attack of the World Trade Center in New York in 1993, using the same modus operandi as was used in Oklahoma City—a truck bomb in the parking lot. In November 1994, when Nichols came to Cebu City, Yousef was in the final stages of the so-called “Bojinka plot.” This scheme to plant twelve bombs on twelve American planes that would simultaneously detonate on January 21, 1995, was aborted in the Philippines in early January by police who arrested Yousef’s co-conspirator Abdul Hakim Murad. In what may have been a coincidence, Nichols meanwhile flew back to America on one of the targeted flights of Northwest Airlines. About four months later, after the bomb went off in Oklahoma City, Murad made statements from prison, verbally and in writing, claiming responsibility for it. Aside from this prison bluster, and the fact that they were both in the same city in November 1994, the only actual evidence cited in this theory is Yousef’s phone records from the months before he detonated the first World Trade Center bomb in 1993, which showed calls placed to a close neighbor of Nichols’ in-laws in New York.

  My own assessment of the evidence is that there was another conspirator involved in the plot. Although eyewitness testimony is notoriously unreliable, I find it difficult to accept the prosecution theory that all the eyewitnesses’ identifications of a fourth man are wrong. Even though the FBI investigation collected a vast amount of data, including thirteen million hotel and motel records, none of it precludes the possibility that McVeigh and Nichols had help. The al-Qaeda theory, as intriguing as it is, lacks a smoking gun. In addition, if Nichols had such information, I find it difficult to believe that he would not have used it to bargain with prosecutors to avoid a life sentence. The most plausible theory, in my view, is that McVeigh received assistance from the right-wing activists with whom he was known to be in contact.

  Even in what was then the most deadly terrorist attack in American history, there can be no doubt that as the McVeigh trial approached, there was enormous pressure put on the FBI not to pursue leads that could be used by the defense team to advance doubts with the jury. The fact that the investigation was cut off before a fourth conspirator could be located demonstrates that the need for prosecutors to bring high-profile cases to trial can result, as it did in this case, in an unsolved mystery.

  CHAPTER 31

  THE O. J. SIMPSON NULLIFICATION

  Evidence is, by its very nature, controvertible. Nowhere is this proposition better illustrated than in the murder trial of O. J. Simpson. Late in the evening of June 12, 1994, Simpson’s ex-wife, Nicole Simpson Brown, and her friend Ronald Goldman were brutally stabbed to death outside Nicole’s condominium on Bundy Drive in Los Angeles.

  Since Orenthal James Simpson, better known as O. J., one of America’s all-time great football heroes, had threatene
d her with violence on previous occasions, and had left Los Angeles immediately after the bloodbath, he became a suspect in the double homicide, and he agreed to voluntarily surrender to the Los Angeles police on June 17.

  After he had retired from professional football, O. J. Simpson had remained in the public eye as a movie actor, television-show host, and product endorser, which made his surrender a media event. More than one thousand reporters had gathered at police headquarters to witness his agreed-upon surrender. When Simpson failed to arrive, they became fixated on the pursuit of his Ford Bronco in which a passenger had warned on his cell phone that Simpson was suicidal and holding a loaded gun to his head. As a convoy of police cars slowly trailed the Bronco on the throughways, one network after another canceled its schedule to carry the strange chase from helicopters live on television. By the time Simpson returned home, surrendered to waiting police, and was handcuffed, USA Today reported that it was already “the most publicized crime in history.”

  Although no murder weapon or any eyewitness to the double homicide was found, the police quickly amassed a wealth of incriminating evidence, including a bloody footprint, hairs, and fibers, and, on July 7, they proceeded to indict O. J. Simpson.

  He pleaded “absolutely not guilty,” retaining what the media termed a “dream team” of nine top lawyers, including two world-renowned experts in DNA evidence, to defend him. The televised trial, which began on January 25, 1995, turned on the prosecution’s DNA evidence. To compare samples from those taken at the crime scene with those specimens furnished by Simpson, the prosecution used a technique called “restriction fragment length polymorphism.” It requires the breaking of each DNA sample into pieces via restriction enzymes, then separating them according to their lengths, and comparing these results with the DNA furnished by Simpson. According to the prosecution’s expert witness, police criminologist Dennis Fung, this DNA evidence, including samples taken from the bloody footprints leading away from the bodies, perfectly matched that of O. J. Simpson. If this was true, he could be placed at Nicole Brown Simpson’s townhouse at the time of the murders. But in eight days of cross-examination, defense lawyer Barry Scheck elicited testimony that showed flaws in the process. For example, the police scientist who collected blood samples from Simpson to compare with those from the crime scene carried them around in his lab-coat pocket for nearly a day before handing them over as evidence, raising the possibility of cross-contamination between the samples. Scheck argued that this and other mishandling of the blood samples made it impossible to determine whose DNA was found at the crime scene.

  The prosecution had also relied heavily on seemingly cogent glove evidence. It presented a left leather glove, found at the crime scene, that contained blood that matched that of murder victim Goldman, and a similar right glove that was found in the police search of Simpson’s compound. However, when the prosecutor asked Simpson to try on the left glove in front of the jury, it was much too small to fit on his hand. This mismatch led defense lawyer Johnnie Cochran to argue to the jury, “If it [the glove] doesn’t fit, you must acquit.”

  The dream team of lawyers so effectively impeached the evidence supplied by the police investigation that on October 3, 1995, after only three hours of deliberation, the jury returned a unanimous verdict of not guilty. The one-hundred-and-thirty-five-day trial was over, and O. J. walked out of the court room a free man.

  How could Simpson not be guilty of the double murder? Such a verdict was so much at odds with the narrative that had begun in the media, from the day of the televised car chase fifteen months earlier, that an explanation had to be provided to the public for this apparent contradiction. The theory offered by prosecutors, police, and pundits was “jury nullification,” a doctrine that allows a jury to ignore the evidence and acquit the accused if they believe the law itself is unfair. It can be traced back to runaway slave cases in the early 1800s, when juries in anti-slavery states refused to convict runaway slaves because they believed slavery laws were unfair. As Simpson was being tried for murder, and his legal rights were well represented, intentionally ignoring the evidence—if indeed that is what occurred—would also be a miscarriage of justice on the part of the jurors. In any case, the relatives of Goldman and Nicole Brown Simpson sued O. J. Simpson for wrongful death in civil court, which uses a lower standard of proof than a criminal trial. In February 1997, the jury awarded the plaintiffs $33.5 million—a judgment that literally bankrupted Simpson.

  He was still technically not guilty of the murders, so a confession was needed to remedy the jury verdict and restore the narrative. In 2006, Judith Regan, the editor of ReganBooks, a subsidiary of Rupert Murdoch’s News Corporation, persuaded Simpson to sign his name to a work of fiction that would be called If I Did It: Here’s How It Happened. She offered him a $1.1 million advance, as well as a percent of the profits, at a time when he was desperate for money. The plan was to make the book into a TV special for the Fox television network, also a subsidiary of News Corporation. As Regan explained it, the purpose was to bring “closure” to the case. A ghostwriter, Pablo Fenjves, was hired to write the fictional account of how an O. J.–like character comitted the murders. Before it could be published, word of it leaked to the National Enquirer, causing such a firestorm of charges that O.J Simpson, Regan, and Fox television, were exploiting the crime for profit, that Murdoch fired Judith Regan, canceled the television show, and withdrew the book from publication.

  But the effort to publish a confession from Simpson continued. A Florida bankruptcy court awarded the rights to the ghostwritten book to the Goldman family, which changed its title, without O. J.’s approval, to If I Did It: Confessions of the Killer. They then effectively dropped the key word “if” by printing it in such minute letters that it actually fitted in the dot over the “I” in the title. So the title appeared to be: I Did It: Confessions of the Killer. In addition to this legerdemain, the book included a chapter by Dominick Dunne implying falsely that Simpson had actually confessed to the crime. The ghostwritten fiction, passed off to the public as a truthful confession by O. J. Simpson, became a huge best-seller in 2007. In the court of public opinion, a confession, albeit a fraudulent one, had finally been extracted from Simpson. On the books of the L.A. police department, the 1994 murders remain, however, unsolved crimes.

  The only viable alternative theory is that another party, possibly one with whom Simpson was acquainted, committed the murders, and O. J. later stumbled on the crime scene and cut himself there. While such a theory could account for the DNA evidence, it does not account for the awareness of guilt that Simpson displayed after the crime, first by fleeing to Chicago, and then, during the car chase, holding a gun to his own head. These actions, in conjunction with the evidence at the trial, convince me that he was the perpetrator. In my view, the jury, which was subjected to unprecedented media exposure, opted to nullify the legal process.

  CHAPTER 32

  BRINGING DOWN DSK

  May 14, 2011, was a fateful day for Dominique Strauss-Kahn, at the time the head of the International Monetary Fund and the odds-on favorite to replace Nicolas Sarkozy as the president of France. By late afternoon, instead of flying to Europe for a meeting with German Chancellor Angela Merkel, he would be imprisoned in New York on a charge of sexual assault. He would then be indicted by a grand jury on seven criminal counts, including attempted rape, sexual assault, and unlawful imprisonment; spend four days in the Rikers Island jail; would be placed under house arrest for over a month; and, two weeks before all the charges were dismissed on August 23, 2011, would be sued for sexual abuse by the alleged victim.

  Strauss-Kahn, better known in France by his initials, “DSK,” had been arrested for allegedly attempting to rape a hotel maid at the Sofitel Hotel in New York. At first, prosecutors assumed that this was a simple case of a lustful master of the universe disregarding the laws of New York State. But they soon learned that things were not as they initially seemed, and they dropped all charges against Straus
s-Kahn.

  After the prosecutors dismissed the charges against Strauss-Kahn, it was revealed that DSK had become a prime target of French intelligence at least two months before the Sofitel incident. French authorities were intercepting communications of his associates, and, as is evident from the hotel’s security cameras, anticipating his arrival at the hotel. This raises the mystery: Did Strauss-Kahn’s political downfall proceed from his own lust, or from the machinations of those out to derail his election? Or was he a victim of both? To reconstruct the elements of this continuing mystery, I have used videos from the hotel’s CCTV cameras, electronic key-swipe records, and cell-phone records. Here is what unfolded.

  The day began normally enough. According to room-service records, a waiter knocked on the door of DSK’s four-room suite shortly after 9:30 a.m. and brought in the breakfast DSK had ordered. It was left for DSK in the dining room on the far side of the living room. But when DSK went through his messages, he discovered that he had a potentially serious problem with one of his BlackBerry cell phones, which he called his IMF BlackBerry. This was the phone he used to send and receive texts and emails, for both personal and IMF business. According to DSK, who I interviewed in Paris in April 2012, he had received a text message that morning from a friend in Paris. She warned him that at least one private email he had recently sent from his BlackBerry to his wife, Anne Sinclair, had been read by his political foes. It is unclear how these foes might have been able to receive this email, but if it had come from DSK’s IMF BlackBerry, he had reason to suspect that he might be under electronic surveillance in New York.

  Since DSK had taken measures to protect his phone a month earlier, the warning that his BlackBerry might have been hacked was all the more alarming. At 10:07 a.m. he called his wife in Paris on his IMF BlackBerry, and in a conversation that lasted about six minutes, he told her that he had a big problem. He asked her to contact a friend, Stéphane Fouks, who could arrange to have both his BlackBerry and iPad examined by one or more experts in such matters. He wanted Fouks and his team to meet him at Charles de Gaulle Airport, where he would make a short stopover en route to Berlin.