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The trial of Timothy McVeigh opened with a media bang last week but has since slowed to a crawl. Over 350 prospective jurors are being put through a long, detailed examination. Sixty-four "death penalty qualified" candidates will survive the first cut before a final panel of 12 will be chosen. The process will likely take several weeks.

McVeigh is charged with murder, conspiracy and terrorism in the April 19, 1995, bombing of an Oklahoma City federal building that killed 168 people and injured more than 500. McVeigh and Terry Nichols, who will be tried later, both face the death penalty if convicted.

Apart from the actual evidence to be presented, two major issues have arisen. First, given all the pre-trial publicity -- including reports of an alleged confession -- can the defendants get a fair trial before an impartial jury? And, secondly, how big a role should victims' rights play in the proceedings?

Salon talked with William Pizzi, a former federal prosecutor and professor of law at the University of Colorado at Boulder. Pizzi has taught criminal law for more than 20 years and is an expert on victims' rights.

Prospective jurors are being questioned on everything from their favorite television shows to what they think of the federal government. At the end of the day, how difficult is it going to be to impanel a fair jury?

I think it's going to be hard. The reports of McVeigh's "confession" are going to have a tremendous impact on a jury. And it's going to make it much harder for the defense to get a hung jury, let alone an acquittal.

Why?

It's very hard to put that kind of information out of your mind. It's inevitable, I think, that jurors, somewhere in the back of their mind, are going to think, "He's already confessed ... he confessed!" It's a big problem for the defense.

Judge Richard Matsch, who is presiding over the trial, has said he believes that if prospective jurors are questioned properly, it's possible to have a fair trial. Which may be why he's allowing both sides to take so long with the questioning.

Sure, and I think the jurors will try very hard to be fair. But based on the empirical studies I've seen, it's very hard for jurors to put damaging information of that kind out of their minds, no matter how hard they try.

What empirical studies?

Social science studies that compare juries that have heard incriminating though inadmissible evidence with those that have not. The studies show that juries which know of inadmissible evidence, even though they are told to disregard it, are affected in their verdicts.

And we don't even know if McVeigh's "confession," published by the Dallas Morning News, then Playboy, then Newsweek, is real or not. What's your speculation?

I have no idea. Maybe someone hacked into the computer -- a disgruntled employee, a cleaning person. It could have been an accident, information wrongly transmitted, a complete mistake. Unfortunately for the defense, it's water over the dam.

Apart from the "confession," as a former federal prosecutor, how strong do you think the prosecution's case is?

I have to say, I think it's going to be a strong case. First of all, the prosecution has momentum going for it in terms of the horror of the crime. Everyone has seen footage of the crime scene and the enormous devastation. Second, they have an insider, a co-conspirator, (Michael) Fortier, who's going to say, "We went to Kansas City, we used the phone, we stole this and bought that." Fortier's got some credibility problems but I assume they'll have certain pieces of his testimony corroborated so it's not just his word. And I assume he'll be very well prepared. He'll be able to say, "McVeigh was always angry, he did this, he kept telling us, 'Let's do it,'" or whatever.

They also have a certain amount of circumstantial evidence -- the Ryder truck, which they'll be able to say McVeigh rented, or at least was there when it was rented.

The prosecution had a pretty strong case in the O.J. Simpson trial, including DNA. Look what happened to that.

Yes, but this time you have a judge who's going to control the courtroom. The lawyers are not going to get the kind of leeway you had in the Simpson case.

The same thing was said about Judge Lance Ito. Judge Richard Matsch has a very good reputation, but why will he have any more success with a high-profile trial than Judge Ito?

Partly because he's a federal judge, and federal judges tend to control trials much more. They keep lawyers on a tighter leash, for one thing.

Why is that?

Federal judges are lifetime appointees, unlike many state judges, who have to run for office. They're at the pinnacle of the profession, intellectually confident, and they're used to big cases.

So what can the defense do?

They'll need to put the prosecution on the defensive, just like they did in the Simpson case. They'll attack the FBI lab work as atrocious. They'll say, "Don't trust the authorities."

Which definitely worked in the Simpson case.

Yes, but I'm betting the FBI agents who will testify will come across better. But who knows? It could turn out one of them is another Mark Fuhrman -- although it's less likely.

So you think McVeigh will be convicted.

Yes, that's my feeling. Of course there are uncertainties. You could get someone on the jury who has an ax to grind, or a juror whom you couldn't even convince that Elvis is dead. And this is a death penalty case.

Advocates of victims rights are said to have something of a breakthrough with this case. The trial won't be televised, but victims' relatives will be able to watch from either the U.S. District Court in Denver or via a special closed-circuit feed in a "virtual" courtroom in Oklahoma City. How big an impact will this have on the trial?

I don't think it means a great deal for the trial itself. I did think that Judge Matsch's original ruling that the relatives couldn't watch any of the trial if they were going to testify during the penalty phase was way too broad. I mean, what could they say during the sentencing phase? They'll talk about their loved ones and I really don't think that's going to be influenced by what happens during the trial.

I do think it has an important symbolic effect, however. It's a way of saying the system cares about victims. Matsch was forced to change his ruling after President Clinton signed the Victims' Rights Clarification Act. I guess you could say it's Congress' way of overruling Judge Matsch on this issue. It's not especially controversial in this case, although normally Congress is not meant to be interfering in an ongoing trial.

Some critics say that this is the thin end of the wedge, that Congress is likely to interfere a lot more.

The victims' rights movement has certainly become very powerful. There's a proposed constitutional amendment in the Senate, backed by Senator (Dianne) Feinstein (D-Calif.) which would give victims the right to be consulted about the handling of the case, the right to be present, and the right to be heard at sentencing.

What chance do you think it has?

At this point, about half of the states, some through constitutional amendments, recognize victims' rights -- the right to restitution, the right to be told if an offender is being paroled, the right to be told about bail or a plea bargain. I don't know if the federal constitutional change will get out of the Senate, but there's certainly pressure at the local level.

Is this a good thing?

Yes. I think there's a tendency for people in the system to see a trial as two-sided. I call it the adversarial mentality: Because we have a prosecutor and a defense attorney, there are only two interests involved, the state and the defendant. But where do the victims fit in? Often they're caught in the middle. I sat in trials in Germany where rape victims have their own attorney. That's unimaginable to American lawyers.

Who are more used to trials as boxing matches.

That's right. And the judge is just a referee who occasionally steps in and says, "Oh, that was a little too low," rather than saying, "I don't just want to see which lawyer is the better fighter, I want to help the jury see the truth."
April 8, 1997

Ros Davidson is a San Francisco freelance journalist.

Can Timothy McVeigh get a fair trial? Join a new discussion starting up in the Headlines section of Table Talk.

it's easy to see why WebTV would be delighted to sell out to Microsoft for $425 million -- aside from the instant wealth for its founders, of course. WebTV didn't have as stellar a Christmas as it hoped, and Microsoft's profoundly powerful marketing muscle and seemingly inexhaustible well of capital amount to an offer few startup technology companies can refuse.

But what is Microsoft getting for its money? It's not the company's current customer base that attracted Bill Gates. WebTV has by most accounts sold something more than 50,000 but probably fewer than 100,000 units of its product -- a $350 box that sits on top of a TV set and feeds Web pages and e-mail onto the TV screen. WebTV designs the technology, but the hardware is actually manufactured and sold by Philips and Sony.

In order to use the WebTV box you've got to subscribe to the WebTV Network, at $20 a month. But WebTV's presumptive subscriber base of between 50,000 and 100,000 (the company won't divulge actual figures) isn't terribly significant to Microsoft, whose own Microsoft Network has more than 2 million members.

Almost certainly, Microsoft decided to buy out WebTV for two reasons -- its valuable technology patents and its track record in producing genuinely usable consumer products. The technology's appeal is obvious: WebTV's proprietary circuitry and software, by reducing flicker and sometimes rearranging layouts and design, really do make Web pages readable and usable on a TV set, something many analysts thought was impossible. As the war between the computer and broadcast industries to control the next wave of digital television accelerates, these kinds of engineering tricks are likely to have a deep impact on how consumers react to the different players' offerings.

But WebTV's market experience is probably even more important to Microsoft than its technical know-how. For all its limitations, WebTV remains unique: It's a consumer Internet access business whose product actually works, now. Unlike virtually any other supplier today -- from big Internet service providers like AT&T and Earthlink to cable Net access providers like @Home and Time Warner's Road Runner -- WebTV lets the technically unversed get real access to the Net without having to hire a consultant to make it all work. Microsoft has always promised user-friendly "plug and play" experiences, but its performance has been so inconsistent that its detractors, sneering at the experience of trying to make a Windows expansion card work, coined the derisive phrase "plug and pray."

What WebTV built -- and Microsoft now owns -- is essentially the same thing that the media were touting a year or so ago as the network computer: a cheap machine to let people get on the Net without plunking down $1,500 for a dauntingly complex computer. As it turned out, the press had gotten the whole network computer story wrong -- most efforts along that line have been intended not for the mass consumer market but for the corporate workplace, where the network computer could solidify central control of computing resources. WebTV is what the press told us the NC was supposed to be: a product that could bring the Web to millions of homes. But WebTV itself apparently wasn't meeting with great marketing success, and that's no doubt one of the areas in which it hopes Microsoft will help out.

Microsoft and WebTV already have one big thing in common: Neither company has any particular allegiance to the "open standards" ideology that built the Net and the Web in the first place. WebTV achieves its foolproof plug-and-play performance in part because it's a closed-system technology -- the WebTV box will only work if you use WebTV as your service provider. When the company was a heroic little start-up, people were willing to give it the benefit of the doubt and not judge this proprietary scheme as a secret plot to take over the Net. Now that WebTV is becoming a division of Microsoft -- a company that has always viewed the Internet as an inconvenient roadblock on the path to its rightful monopoly -- this closed-door strategy is bound to raise lots of hackles.