McVeigh evidence withheld by FBI

Defense lawyers eye delay of execution

May 11, 2001|By NEW YORK TIMES NEWS SERVICE

WASHINGTON - The FBI has discovered thousands of pages of interview reports and other materials about the Oklahoma City bombing that the government failed to turn over to defense lawyers for Timothy J. McVeigh, Justice Department officials said yesterday.

In response, McVeigh's lawyers said they are weighing whether to seek a delay in the execution of the convicted bomber that is scheduled for Wednesday.

The documents were found by FBI archivists in Oklahoma City as they canvassed the agency's 56 field offices in a final search of records related to the deadly bombing case in anticipation of McVeigh's execution, law enforcement officials said. Lawyers for McVeigh and for Terry L. Nichols, the other defendant convicted in the bombing, were legally entitled to review the records as they prepared for trial.

In a statement last night, federal prosecutors sounded embarrassed and acknowledged that the materials should have been turned over to McVeigh's lawyers. But they said they had concluded that the documents were not material to the case and gave no indication that McVeigh was wrongly convicted in the deadly bombing of the Alfred P. Murrah Federal Building in 1995 that killed 168 people and injured scores of others.

Still, the disclosure cast a cloud of uncertainty over the first federal execution since 1963, disrupting what had been a seamlessly methodical march by federal prison officials in Washington and Terre Haute, Ind., toward the execution by lethal injection.

Justice Department spokesman Mindy Tucker said: "On Tuesday, May 8, the Department of Justice notified Timothy McVeigh's attorney of a number of FBI documents that should have been provided to them during the discovery phase of the trial. 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."

Nathan D. Chambers, McVeigh's lawyer, said he has not yet been able to thoroughly review the several thousand pages of documents, which arrived at his Denver offices yesterday.

"We have a lot of work to do, including legal research, document review and a discussion with my client of what we have," he said.

Chambers said he spoke with McVeigh about the materials yesterday afternoon. But the lawyer said that he did not know whether McVeigh would pursue any new legal options or seek to renew appeals of his death sentence. Any decision would ultimately be made by his client, with his advice, Chambers said.

"Mr. McVeigh will consider all his options," Chambers said. "Habitually and customarily, he reviews issues thoughtfully and carefully. I expect him to do that in this circumstance."

He called the FBI's handling of the documents "troubling."

"Here we are, six years after the bombing, and less than a week before a scheduled execution," Chambers said. "I'm frankly astonished that these documents have just appeared at this late date." Copies of the materials also were sent to lawyers for Nichols, who were studying the documents.

Justice Department officials asked McVeigh's lawyers to notify them if they believe that any of the documents create reasonable doubt about their client's guilt. McVeigh, who was convicted in 1997 and subsequently waived further appeals, confessed to the bombing in a recent book.

Justice Department officials said last night that they had not received any notice that the lawyers would seek to postpone McVeigh's execution; neither had they determined whether they might themselves ask for a delay in order to explain the belated document handover to a judge.

The documents consist primarily of what are known in the FBI as "302s," reports filed by agents about their interviews, but also include photographs, written correspondence and tapes, which had not been shared with the defense during the discovery period before McVeigh's trial.

Law enforcement officials privately blamed the FBI's antiquated computer system for failing to turn up the documents. Because of the unusual nature of the McVeigh case, they said, FBI officials ordered a final manual search for documents.

Experts said the documents may ultimately cause little more than a brief flurry of legal activity.

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