McVeigh Is Unlikely to Escape Execution

Newly discovered FBI files in the Oklahoma City bombing case appear to offer Timothy J. McVeigh little legal basis for reviving his appeals or any real hope that his death sentence might be overturned, sources close to the case and legal experts said Saturday.

McVeigh’s lawyers have just begun to examine the new documents, and have yet to advise the 33-year-old former Army soldier of his legal options. But a government official who has been briefed on the contents of the more than 3,000 pages of new documents said about 700 pages are witness statements, while the rest include less significant material, such as cover sheets describing what was in a file.

The official, who spoke on condition of anonymity, said the witness statements do not seem to offer any new details on the facts that led to McVeigh’s 1997 conviction.

Even if McVeigh’s lawyers decide the files include evidence they want to pursue, their chances of winning a new trial for their client seem slim, legal experts say.

Federal judges set a very high standard for overturning criminal convictions, even in the face of acknowledged mistakes by prosecutors. Once found guilty, a defendant must prove that a legal mistake caused his wrongful conviction. Proving the government made an error is not enough.

In the case of an admitted mass murderer such as McVeigh, a judge is highly unlikely to reverse his conviction unless powerful new evidence comes to light, said Martin H. Belsky, dean of the University of Tulsa Law School.

“The prospects for his conviction to be overturned are minimal,” Belsky said. “The likelihood is that a month from now, or two months from now, McVeigh will be facing execution.”

McVeigh was to have been executed by lethal injection this Wednesday for the April 19, 1995, truck bombing of the Alfred P. Murrah Federal Building that killed 168 people and injured more than 500. But on Friday, Atty. Gen. John Ashcroft delayed his death until June 11 to allow his defense team to sort through the new boxes of material.

The discovery of the new files less than a week before McVeigh was to be executed has prompted sharp criticism of the FBI. Most of the 3,135 pages of new data were generated in the first days after the bombing, before McVeigh was arrested. McVeigh was arrested within hours of the bombing. And the witness statements deal with information from the public after the FBI circulated sketches of two suspects known then as John Doe No. 1 and John Doe No. 2, the government official said.

John Doe No. 1 was later identified as McVeigh, while the existence of John Doe No. 2, who was thought to be a McVeigh accomplice when he rented the Ryder truck used in the bombing, has never been confirmed. Government officials ultimately concluded he did not exist.

“A lot of this is sightings of John Doe No. 1 and John Doe No. 2,” said the government official, who has been briefed on the material. “And those sightings got ridiculous. Even after McVeigh got caught, and we knocked down the John Doe No. 2 theory, people were still seeing McVeigh and John Doe No. 2 everywhere.”

Another Postponement Probable If Sought

Scott Mendeloff, one of the McVeigh prosecutors who is now in private practice, said there were some 30,000 FBI witness statements in the case, but that “less than 1,000, or maybe only 500, related to the actual testimony we put on at the trial.”

Mendeloff said that because of the seriousness of the case, he believes Ashcroft would grant defense lawyers yet another postponement past the new June 11 execution date if they asked him.

Mendeloff said much depends on McVeigh’s wishes. “This guy loves the spotlight. . . . He would walk into court just beaming. And this already gives him another month of spotlight.”

Stephen Jones, who was the lead defense attorney for McVeigh at his trial but is not involved in the case now, agreed that the new June 11 execution date will probably come and go.

He said that while it is too early to expect the current defense attorneys to have devised a strategy, his would be to ask Ashcroft and, if necessary, U.S. District Judge Richard P. Matsch, who presided over McVeigh’s case, for at least 60 more days to continue evaluating the new material.

“And I think Matsch would probably give them some relief,” Jones said.

Jones speculated that McVeigh is enjoying the embarrassment the file mistake has caused the FBI.

But Jones noted that before the foul-up, McVeigh had waived appeals that could have overturned or delayed his execution date. And Jones said he believes McVeigh’s desire not to spend the rest of his life in prison will determine how he responds to his new legal options.

“McVeigh does have analytical skills, and his concern would be about what is the standard for getting a new trial,” Jones said. “And the standard is whether this new information would change the jury’s verdict.

“Now, it might get him life in prison. But McVeigh would say, ‘I don’t want life.’ So I believe ultimately McVeigh will fold the cards and not pursue this. Because if you look at it down the long road, and McVeigh always looks at things down the long road, it’s hard to say this will go anywhere.”

There is also the question of whether McVeigh, who is headstrong, will take the advice of his lawyers, Rob Nigh of Tulsa, Okla., and Nathan Chambers of Denver.

McVeigh became very embittered over Jones’ work on the case, and last month wrote in a letter to Fox News that “having this experience under my belt, I would recommend that a defendant never trust his/her lawyer, for you can neither count on the attorney-client privilege, nor the ethical integrity of a given attorney.”

Nigh has said McVeigh is eager to see where the new material might lead, but the lawyers are not likely to announce any decisions on how they will proceed until later this week.

Jones said that the prosecution often held back documents that should have been given to the defense before the trial in 1997.

“Getting material was a pain every day,” he recalled. “They’d give us things out of sequence, or we wouldn’t get all of the pages of a certain document, or we might get four pages from one witness, a page at a time over four months. Things were always out of order.”

McVeigh’s new defense team could see the government’s failure to produce the new documents earlier as a violation of the so-called Brady rule, set by the Supreme Court in a 1963 case.

Since the government officially investigates a crime, the raw evidence is in the hands of police and prosecutors, the justices observed. To ensure a fair match, the court ruled prosecutors must turn over to defense lawyers any information--such as interviews, tips or witness names--that points to the innocence of the accused.

That basic principle is now well-established in the law, but in practice, the two sides often differ on how to apply it.

“It’s a very subjective thing,” said E. Lawrence Barcella, a Washington lawyer and former federal prosecutor.

So-called Brady violations regularly fuel appeals in criminal cases. Sometimes on the eve of an execution, defense lawyers argue that police and prosecutors wrongly withheld important evidence years ago.

Overturned Convictions Rare

But rarely do these claims prompt a judge, especially in federal cases, to reverse an earlier conviction, legal experts said.

“It is most common for defense lawyers to say, ‘You did not disclose all you were required to disclose,’ ” said Georgetown University law professor Paul Rothstein. “But I know of no instance where this led to a reversal of a capital case” unless the new evidence pointed to innocence.

McVeigh, in comments following his conviction, confessed to plotting and carrying out the bombing.

Belsky, the Tulsa law dean, agreed that convictions are rarely reversed because prosecutors wrongly withheld evidence. “In the 1970s, it was rather common. But across the country now, you rarely see a Brady violation result in a reversal,” he said.

Ironically, the Justice Department in the McVeigh case tried to avoid such after-the-fact speculation and second-guessing by conspiracy buffs. Before the trial, prosecutors agreed to turn over all investigative files, regardless of whether they were relevant to his guilt or innocence.

However, some FBI field offices, for reasons that remain unclear, failed to get the message.

By its bungling, the government unwittingly played into McVeigh’s hands, said Laurie L. Levenson, a professor at the Loyola Law School in Los Angeles.

“His mind-set was that he wanted to be executed, but he also wanted to make the government look as bad as possible. Now, the government has helped greatly in that endeavor,” she said.

Ashcroft visited President Bush Saturday at the Camp David retreat in Maryland. But administration officials said the visit had been set up before the revelation about the McVeigh files and the White House issued no statement about what they discussed.

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Times staff writer Robert L. Jackson contributed to this story.