Prosecuting Terrorism

Before 9/11, Timothy McVeigh and Terry Nichols were the most notorious terrorists in the U.S. Larry Mackey prosecuted both of them

Published in 2005 Indiana Super Lawyers — March 2005

Like many Americans, Larry Mackey watched in disbelief on April 19, 1995, as live television covered the aftermath of a devastating explosion that ripped through the Alfred P. Murrah Federal Building in Oklahoma City. It was simply unthinkable — 149 adults and 19 children killed and some 500 others injured by what would prove to be a 7,000-pound homemade truck bomb detonated in broad daylight.
 
Unlike most Americans, Mackey experienced added trauma and nervousness. As an assistant U.S. attorney in Indianapolis, he worked for the federal government, spending his days in the Federal Courts Building and the Minton-Capehart Building, both in the Hoosier capital. Uncertain whether there would be more federal targets, government employees were on edge.
 
In the next few days, however, a startling reality began to emerge. The attack had been orchestrated and carried out not by foreign terrorists committing mass murder in the name of anti-American hatred, but by Americans themselves. The names of Timothy McVeigh and Terry Nichols quickly became known — and infamous — in the public consciousness.
 
With friends and other federal employees — and all Americans, really — Mackey had to confront the same puzzling question. How could two clean-cut young men, one a decorated Gulf War veteran, commit such a despicable assault?
 
Other questions arose. How many other people knew about or participated in the conspiracy? While one of the largest teams of investigators ever assembled hoped to find the answers, Mackey, 45 at the time, had his own caseload to worry about. With 16 years experience as a government prosecutor, he usually received the most complex criminal cases spilling across the southern district of Indiana.
 
His biggest case thus far had been one of the district’s most celebrated, the successful prosecution of a respected Indianapolis judge for bribery and extortion in connection with his oversight of a struggling insurance company. Starting with a few newspaper articles, Mackey had supervised the piecing together of a damning web of evidence. It was the sort of thing he was good at, collecting and fitting together small pieces of evidentiary jigsaw puzzles so juries had a clear and convincing view of the crime.
 
The same methodical approach also resulted in a prison term in the embezzlement case of a politically connected labor executive. If criminal attorneys once underestimated the soft-spoken Mackey because he seemed shy and self-effacing, they since have learned otherwise. “Larry is very bright and probably a workaholic,” says long-time defense attorney Forrest Bowman. One other quality impresses Bowman. “I found his word to be good.”
 
Whatever strengths or weaknesses Mackey had, he was only one of dozens of Department of Justice attorneys who responded in early summer when a teletype solicited volunteers for the team that would prosecute McVeigh and Nichols. As it happened, Mackey knew the man who would head the effort, Joseph Hartzler, who had been a top assistant U.S. attorney in Chicago.
 
In June, Hartzler telephoned Mackey. “I want you to come out and manage the grand jury,” Hartzler told him. “You will not have to try the Oklahoma City bombing case,” he assured. Still hoping to convince Mackey, Hartzler made another prediction. “You’ll be home by Christmas.”
 
Both of Hartzler’s predictions were wrong.
 
Mackey was about to embark on a three-year odyssey that put him in the forefront of the prosecution and, in fact, made him the pivotal figure in that historic trial.
 
 
It is no exaggeration to say that the game of golf helped put Mackey in the spotlight for one of the most publicized prosecutions of modern times.
 
Born in Evansville in 1950, one of six children of a truck mechanic, Mackey spent much of his boyhood just over the wrong side of the tracks, near a housing project dominated by a gang called the Thunderbirds. No one in his family had ever been to college. “I was the classic kid who performed well in school and got valuable mentoring from teachers,” Mackey says.
 
At age 10, Mackey started caddying at the Evansville Country Club. Every weekend and most summer vacation days, he got up at 5 a.m. to walk and hitchhike from his neighborhood to the exclusive club. There he often caddied two eighteen-rounds a day – sometimes more – earning anywhere from $3.75 to $7 a day. “I literally was at the club whenever the doors were open,” Mackey recalls.
 
Sometimes he carried two bags during the same round. He caddied for six years and worked two years in the pro shop. “He used the income over the years to help the family buy food, clothing, school books and other necessities for himself and his siblings,” says childhood friend Ron Mayer, an Evansville engineer. “I never once heard him complain.”
 
The dedication and drudgery paid off the rest of his life. Mackey remembers, “At the club, I had positive role models who took an interest in a kid from across the tracks. They bred the notion in me that hard work can produce positive results.” At the country club, he caddied for the late Ted Lockyear, the dean of local lawyers, “and he took a personal interest in me.”
 
The idea of becoming a lawyer appealed to Mackey. “Good lawyering was equated with doing good, with doing justice, as an instrument of positive social change. As a youngster from the projects, it had a strong emotional appeal. I believed in that then, as I do today.”
 
At Evansville Central High School, Mackey was president of his junior and senior classes. He was named student of the year and graduated with virtually all A’s. Once again, golf helped carry him to the future. A scholarship awarded through a program for caddies, named after golfer Chick Evans, enabled him to become the first member of his family to go to college.
 
In 1968, Mackey went to Indiana University in Bloomington. “If anything, I came to college thinking it was not a God-given right but my responsibility to work hard. And I did. I probably spent too much time in the library.” He was never particularly comfortable on the big campus. In 1970, he transferred to the University of Evansville, and worked part time at the country club pro shop to help pay bills.
 
After graduating in 1972, Mackey took a year off from studies. In 1973, he returned to IU to study law where he earned his J.D. in 1976. He took a job in the public defender’s office in Ottawa, Ill. By then, he had met a pretty, vibrant public defender; she became Ann Mackey in 1977.
 
Living in Springfield, Mackey spent seven years as an assistant federal prosecutor before he and Ann moved to Indianapolis. She joined Sommer & Barnard; he went to work for U.S. attorney John Daniel Tinder in 1986. Mackey worked diligently under Tinder and two successors. Then terrorists struck Oklahoma City.
 
 
The first thing Mackey did after he stepped off the plane in Oklahoma City was to visit the ruined shell of the Murrah building. “I stood there for a long time. There’s nothing like standing at ground zero.”
 
The personal impact of seeing the devastation never really left him. “I felt overwhelmed and incredibly challenged. I was a federal employee, and I was seeing Oklahoma City through the eyes of the families of federal employees. There was an intense emotional connection.”
 
The massive federal investigation had already resulted in preliminary charges against McVeigh, who grew up in the Buffalo, N.Y., area, and Nichols, who was from central Michigan. Using the grand jury, Mackey had to marshal evidence, handle witnesses and participate in such key decisions as cutting a deal for the testimony of Michael Fortier, who knew about the planned bombing and warned no one about it.
 
“We did more than one over-nighter. Honest to God, there was no time off. Literally one day bled into the next. The phones were ringing off the hook. You had a mass of people, all very focused, trying to get to the truth as quickly as possible.”
 
By the time murder and conspiracy indictments were issued against McVeigh and Nichols in August, Mackey’s role already had started to change.
 
“Very early on,” says assistant attorney Hartzler, “we had to present the standard prosecutor’s memo to the Department of Justice listing facts and evidence. As we approached our self-imposed deadline, Larry — I think he’d only been there a month or less — simply assumed responsibility for getting this thing done. He and the case agent stayed up all night long for two solid days producing a 50- to 80-page memo and indictment.
 
“That was a sort of turning point when everybody realized this guy was indispensable. His work ethic so far surpassed everyone else’s, his comprehension of the case and his ability to move from point A to B to Z in a very short time, it was just masterful.”
 
By the end of the year, Mackey recalls, “Joe was talking in terms of an expanded role.” In fact, when the McVeigh case was moved to Denver, Mackey was assigned to be the No. 2 prosecutor at trial. He moved to a Denver hotel in the spring of 1996, and shortly thereafter flew in his wife and two sons to join him.
 
The experience, they all agree, drew them closer together. Son Chris, age 24, is a law student at IU; Allen, 21, is majoring in engineering at Purdue.
 
When McVeigh’s trial started in March 1997, Hartzler opened for the government. Culminating an investigation and prosecution costing an estimated $82 million, Mackey gave the closing argument in late May. In between, bolstered by testimony from Fortier, his wife and McVeigh’s sister, the government presented a strong circumstantial case that McVeigh assembled and triggered the bomb as an act of protest over the government’s role in Waco and the shooting at Ruby Ridge.
 
“He was a very bright guy, well-spoken, and he had his finger on the pulse of the defense,” Mackey says of McVeigh. “There clearly was a deep, inbred seed of suspicion and hatred of the federal government.”
 
The jury deliberated three days before returning guilty verdicts and recommending the death sentence. Mackey never will forget what happened next. 
 
“We came out of the courthouse, we hit the courtyard, and the sidewalks were full of people, traffic had stopped, and people were leaning out the windows, and the team walks out to this thunderous applause.”
 
 
Mackey was ready to return home. Attorney General Janet Reno had other ideas. She asked to meet with Mackey and his wife. Reno convinced them Mackey was the man to serve as the chief prosecutor in the federal trial of Terry Nichols.
 
Once again, Mackey was at the forefront. Nichols’ case started in October 1997 and finished in December. It was not a repeat of the McVeigh prosecution, because Nichols had backed out of the actual bombing. Still, Nichols was convicted and the jury recommended life in prison.
 
When Mackey eventually returned to Indiana, he joined Barnes & Thornburg, where he currently heads up the white-collar crime practice group.
 
Like many volatile, highly publicized cases, the Oklahoma City bombing generated conspiracy theories galore, primarily charges that other guilty people escaped prosecution, or that the government bungled or deliberately withheld evidence to hide its own complicity.
 
In response, Mackey points to American Terrorist by Lou Michel and Dan Herbeck. In numerous interviews with the authors, a defiantly unapologetic McVeigh outlined in detail what he did, when he did it and why he did it. “Besides the overwhelming evidence tested by a jury trial,” Mackey says, “there are Tim McVeigh’s own words. He says ‘I blew it up and here’s why.’”
 
In 2001, McVeigh was executed by lethal injection. “I had a great sense of relief for the victims and felt some measure of justice,” says Mackey. “But I also thought about the pain his death had to bring to his own family, his father. As a father myself, my heart went out to Bill McVeigh. But Bill McVeigh would never do what his son did. Over time, Tim McVeigh quit listening to even his best friends, who said there’s a limit to how you give voice to hatred.”

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