McVeigh Lawyers Looking for Stay

Federal law enforcement officials revealed Thursday that they had found about 3,000 pages of FBI materials that had been mislaid in the Oklahoma City bombing case, and defense attorneys for Timothy J. McVeigh immediately said they hope to win a stay of his execution scheduled in just five days.

Authorities in Washington said the files were found recently in the FBI’s Dallas field office, where documents in the largest federal case in history were being collected as part of a government archival project.

They said the matter was immediately brought to the attention of attorneys for McVeigh and his convicted co-conspirator, Terry L. Nichols.

But they also insisted that the materials were irrelevant to the case and offered no suggestion that McVeigh or Nichols might be innocent in the worst mass murder in the United States.

Nevertheless, defense attorney Richard Burr said in an interview Thursday evening that the defense team expects the Department of Justice to “step up to the plate” and postpone the execution, now planned for 7 a.m. local time Wednesday at the federal prison in Terre Haute, Ind.

Federal prosecutors, however, gave no indication that they would delay the execution, which has been planned for months and is to mark the first time in 38 years that the federal government has put a prisoner to death.

But Burr argued that there was a pretrial order in the bombing case mandating that all FBI witness statements be turned over to the defense teams. Because of that, Burr said, “the onus is on the Department of Justice to correct their mistake.”

If the prosecution refuses to delay the execution, he added, the defense will ask U.S. District Judge Richard P. Matsch in Denver, who sentenced McVeigh to die, for a stay of execution.

“We don’t know what’s all in there yet, whether it would be helpful to the defense or not,” Burr said, adding that the defense teams have not come close to fully examining the material, whose existence was first reported by CBS News.

“Three thousand pages is a lot to look through,” Burr said. “There may be something in there that could have been helpful to the defense at trial.”

McVeigh’s Permission Needed to Seek Stay

About 18,000 FBI witness statements were taken in the case, and Burr said that many of them “suggested others might have been involved.”

“And there may be things like that here,” he said. “But it takes time to review them. That’s a pretty arduous task. You could do a read-through and then determine whether anything struck you as useful. Then you would have to do some investigation on your own. You might want to talk to some of these witnesses.”

But to seek a stay on their own, he said, the defense lawyers would first have to get the permission of McVeigh himself. He earlier signed a waiver dropping all of his legal appeals and has remained steadfast about wishing to proceed with the execution.

If he were to be opposed to seeking a stay, the defense team could still request one. But Burr said that “it would be difficult to get around that waiver if he doesn’t want to.”

Nathan Chambers, another McVeigh attorney who has planned to witness the execution of his client, said, “It’s troubling that less than a week before Mr. McVeigh’s execution, these documents would be produced.”

Asked about the fact that a new book says McVeigh has confessed to the bombing, Chambers said: “Some of these options do have hurdles. If it becomes an issue, the courts will deal with it.”

Another attorney, Stephen Jones of Enid, Okla., the chief defense attorney during the trial, who no longer represents McVeigh, estimated it would take “at minimum a week” to properly review the material but probably much longer.

He also said he would expect Matsch, if asked to grant a stay, to make a decision promptly.

“A stay could very well happen,” Jones predicted. “Judge Matsch is the kind of guy who wouldn’t wait until Tuesday night at midnight to issue a stay. He’s not going to run against the clock. If he’s going to do this, he’s going to do this Friday or Monday.”

James Manspeaker, chief clerk of the federal court in Denver, where the trial was moved because of fears that an impartial jury could not be found in Oklahoma, said no legal pleadings or motions were filed Thursday. But, he added, the judge did receive a copy of the prosecutor’s letter to the defense lawyers.

That two-page letter, released Thursday night by the Department of Justice, said the material in the files is inconsequential to McVeigh’s guilt or innocence.

The letter, signed by assistant prosecutor Sean Connelly and dated Wednesday, said Connelly learned of the new files only the day before from FBI officials in Dallas who helped head up the so-called OKBOMB investigation.

“The belated discovery of additional such materials came after an FBI archivist requested that all OKBOMB-related materials be sent to the Oklahoma City office for archiving,” Connelly wrote. “These materials consist of FBI reports of investigation [such as witness statements, known as FBI 302s] and physical evidence, such as photographs, written correspondence and tapes.”

The material had been gathered by the FBI from all around the nation--from Albany, N.Y., to Albuquerque to Anchorage to Miami. About 445 documents came from Los Angeles.

Despite the high volume, Connelly wrote that the material dealt with information gathered in the first two days of the bombing--before McVeigh was arrested or publicly identified as a suspect--and that much of it pertained to FBI artist sketches of suspects then identified as John Doe No. 1 and John Doe No. 2.

“We do not believe anything being produced” could help McVeigh or Nichols win a new trial, Connelly wrote.

“Similarly, we do not believe anything in the materials makes even a prima facie showing of either man’s actual innocence. Many of the materials are similar to [FBI] lead sheets in that they involve interviews and information regarding persons whom at one time were thought to resemble the sketches.

“Nonetheless,” he conceded, “many of the materials--in particular, the FBI 302s and inserts--should have been reproduced under the reciprocal discovery agreement.

“We are producing the materials now so you can make your own determinations.”

In a separate statement from the Department of Justice, chief spokeswoman Mindy Tucker agreed that the materials “should have been provided” to the defense teams before their separate trials in 1997.

She added: “While the department is confident the documents do not in any way create any reasonable doubt about McVeigh’s guilt and do not contradict his repeated confessions of guilt, the department is concerned that McVeigh’s attorneys were not able to review them at the appropriate time.”

The April 19, 1995, bombing of the Alfred P. Murrah Federal Building took 168 lives and injured more than 500 people. No federal criminal investigation has come close to matching it in scope and intensity, making it all the more remarkable that these materials were overlooked.

Furthermore, the slip-up comes after a similar embarrassment involving the FBI’s investigation of the 1993 siege near Waco, Texas. In that matter, a tape purporting to show previously undetected gunfire surfaced long after the FBI had closed its investigation.

In Oklahoma, Gov. Frank Keating said many of the citizens there are bewildered about the latest development, especially since they are hoping the execution will bring some closure to their grief.

“There is a question mark all over these proceedings now. It’s stunned disbelief,” the governor said. “And this causes all of us, at least in this state, real concern.”

Nichols was given life with no parole in the bombing, but state officials in Oklahoma now hope to retry him on death penalty charges.

“I am studying the ramifications of this revelation very closely,” said John M. Richilano, his federal appeals lawyer. “It’s deeply disturbing.”

‘I’m Appalled’ by FBI Error, Relative Says

News of the misplaced FBI material caught survivors of the blast and victims’ families by surprise.

“Shocked is a mild word, considering this situation,” said Kathleen Treanor, who lost her 4-year-old daughter and in-laws in the bombing. “I’m appalled. The FBI knew from the very beginning that this was a huge case. How could they have possibly made a mistake this huge?

“I don’t think this should be up to McVeigh. This is not his world anymore. When he set the fuse, he gave up all his rights, in my book.”

Paul Heath, who was hurt in the blast that destroyed the building, said he was convinced the FBI files wouldn’t affect the case.

“It would be a bigger problem for me if he wasn’t given a fair trial,” he said.

McVeigh juror Doug Carr, 45, also was unimpressed by the potential new evidence.

“The prosecution proved everything to me,” he said. “If there was something left out that’s in those files, I don’t think it was that significant.”

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