McVeigh Execution Stayed; Review of FBI Is Ordered

Atty. Gen. John Ashcroft on Friday postponed the execution of Timothy J. McVeigh until next month, and defense attorneys for the convicted Oklahoma City bomber said he now is seriously considering dropping his wish to die because of newly discovered FBI files in his case.

“He is willing to take a fresh look and evaluate the information,” said lead defense attorney Rob Nigh, emerging from a three-hour meeting with his client on death row in Terre Haute, Ind. “Mr. McVeigh is very resilient. He is capable of evaluating new information and making a decision based upon that information.”

McVeigh’s attorneys expressed anger with the federal government, saying the blunder raises concerns about the FBI’s ability to handle major cases and provides a strong argument for a moratorium on all federal executions.

In Washington, Ashcroft’s decision to reschedule the execution for June 11 was praised by President Bush but criticized by many of the victims in Oklahoma City, who contend it is time for McVeigh to give his life for the 168 killed at the Alfred P. Murrah Federal Building.

The president said that, rather than being angry because the FBI never turned over more than 3,000 pages of documents in the case, McVeigh should instead be thankful that his rights are being protected by the U.S. judicial system--even as he stands in the shadow of death’s door.

“He should say he’s lucky to be in America, is what he should say,” Bush declared in a White House news conference shortly after Ashcroft announced the delay at the nearby Justice Department. “That this is a country who will bend over backwards to make sure that his constitutional rights are guaranteed. . . . Mr. McVeigh is lucky to be in a country like this.”

To the victims, however, including many among the more than 500 injured, and the relatives of those who died, the last-minute delay of the execution--which had been planned for Wednesday--seemed like yet another roadblock in their six-year journey of grief.

“We needed this death penalty,” said Aren Almon Kok, the mother of the 1-year-old girl whose lifeless body in the arms of a firefighter was memorialized in a searing photograph shot after the April 19, 1995, bombing.

“For someone to make this mistake, to find these files less than a week before he dies, is unbelievably unfair.”

Ashcroft ordered an internal review of why the files did not turn up until just this week in the FBI’s Dallas field office, where the material was being collected from other FBI offices around the nation.

As that work begins, the head of the Dallas office, Danny Defenbaugh, who helped oversee the so-called OKBOMB Task Force investigation, provided new details about the foul-up.

In a statement released by FBI headquarters here, Defenbaugh noted that the bombing investigation “was one of the most labor-intensive efforts in FBI history.” Millions of records were produced, including 23,290 pieces of evidence and more than 238,000 photographs, and more than 28,000 interviews were conducted.

The task force and FBI Director Louis J. Freeh requested that all FBI offices forward all materials to the task force, he said.

“On numerous occasions, commencing in the fall of 1995, we sought and obtained numerous assurances from FBI field offices and legal attaches that diligent searches for documents had taken place and that all matters relating to the investigation had been made available,” Defenbaugh said.

The materials were then to be turned over to federal prosecutors and, under a 1996 agreement with the defense teams for McVeigh and co-conspirator Terry L. Nichols, shared with the other side in preparation for the 1997 trials.

In December, Defenbaugh said, the FBI “initiated procedures” to archive all of the material.

“Over the course of the last several months, the FBI exercised due diligence to ensure that all records created as a result of the investigation were logged into and compared with each of 26 databases which serve as a repository for information,” he said.

“During this process, it was determined that some of the materials from various FBI field offices were not a part of the investigative database. Moreover, this was the first time the OKBOMB Task Force had seen these materials, and none were used in the government’s case.”

Defenbaugh said he alerted “senior FBI officials at headquarters” on Tuesday that “the archiving process had turned up these materials.”

On Wednesday, prosecutors notified the judge who sentenced McVeigh to death, as well as the two defense teams, and the defense lawyers received copies of the 3,135 pages of new material Thursday.

Prosecutors argue that the material is irrelevant to McVeigh’s guilt or innocence and that it primarily consists of papers generated in the first days after the bombing, before McVeigh’s name became publicly known.

But defense lawyers want to review the material closely, and possibly conduct their own interviews and other follow-up work. But their task does not end there.

Because McVeigh has confessed to the bombing in letters and a new book, and because he earlier dropped all of his legal appeals and was preparing for death, it will be very difficult for the lawyers to reopen his case.

Stephen Jones, McVeigh’s chief lawyer during his trial, said about the confession: “If Tim had kept his mouth shut, he’d be in the catbird seat this morning.”

Nigh said the 33-year-old former Army soldier was indeed “distressed about this” new development in his case.

“He had said his goodbyes to his family and to his friends. He is distressed that he has had to put these people that he cares about through this process and may only have to put them through it again.”

McVeigh, Nigh said, was even concerned about the disruption the stay would cause for the Bureau of Prisons officials who had been planning the execution, the residents of Terre Haute and even members of the media.

Expressing anger with the federal government, Nigh said the foul-up was a strong argument not only for a stay of execution for McVeigh but also for a moratorium on all federal executions.

“The events of the past three days demonstrate that, even in Mr. McVeigh’s case, the government is not capable of carrying out the death penalty in a fair and just manner,” Nigh said.

But federal officials, while acknowledging the awkwardness of the situation, defended themselves in being forthright in admitting the problem and quickly granting a stay.

“I know many Americans will question why the execution of someone who is clearly guilty of such a heinous crime should be delayed,” Ashcroft said. “I understand that victims and victims’ family members await justice.

“But if any questions or doubts remain about this case, it would cast a permanent cloud over justice, diminishing its value and questioning its integrity. For those victims and for our nation, I want justice to be carried out fairly, and I want a criminal justice system that has the full faith and confidence of the American people. . . . There is no doubt in my mind or in the minds of any individual about the guilt of Timothy McVeigh.”

Pat Ryan, the former U.S. attorney in Oklahoma City who helped prosecute McVeigh and Nichols, said it more succinctly: “People make mistakes.”

In Denver, where McVeigh and Nichols were tried separately on a change of venue, James Manspeaker, chief clerk of the federal court, said no legal papers had been filed. He added that U.S. District Judge Richard P. Matsch, who presided over the two trials, will not say “anything until something is filed, and then he would act on it.”

But many legal observers expect that, regardless of the merit of the new material, the defense lawyers will probably file requests for an even longer stay.

Nigh noted that it would take 30 days to just give the documents a first going-over. If defense investigators then want to do their own work on the new material, they would need even more time.

Likewise, Michael E. Tigar, the chief attorney who represented Nichols, said “it could take 90 days to review it all, and that doesn’t include extra investigative work on the ground.”

The effect of the documents on Nichols, who is serving a life term on conspiracy and involuntary manslaughter charges, was unclear. In an interview on CNN, Tigar said he would file a new appeal for Nichols with the U.S. Supreme Court.

Nathan Chambers, another McVeigh defense lawyer, suggested that it would be unfair to expect the defense not to move quickly for more time, now that the government has kept these new pages from them for so long.

“This is the FBI’s most important investigation, maybe ever, and they hold themselves out as being the premier law enforcement agency in the world,” he said. “If they’re incapable of handling their most important investigation in a manner that instills confidence, we all need to be concerned.”

Victims of the bombing, the worst mass killing in the United States, agreed with McVeigh’s lawyers that the FBI should have produced the missing material long ago.

“It’s like a big old clamp squeezing my gut,” said Dan McKinney, whose wife was killed. “We have to wait 30 more days for something we have waited six years [for].”

But Bush, in his White House remarks, cautioned that the delay does not mean that justice is not being served or that the federal death penalty will not be carried out.

The government, he said, “needs to send a signal to anybody who thinks what Timothy McVeigh did was OK, that in this society we’re not going to tolerate that kind of heinous act.”

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Times staff writer Eric Slater in Terre Haute contributed to this story.