Death delayed to erase doubt

Ashcroft stays McVeigh execution as more files from FBI come to light

Kevin Flynn, News Staff Writer

Published May 12, 2001 at midnight

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Timothy McVeigh gained at least 26 days of life on Friday.

Attorney General John Ashcroft delayed his execution, which had been set for Wednesday, until June 11.

The case was thrown into disarray Thursday when the FBI admitted that it had discovered more than 3,000 pages of evidence that it should have turned over to McVeigh's attorneys.

"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. "But if any questions or doubts remain about this case, it would cast a permanent cloud over justice."

Ashcroft said he wants justice to be carried out fairly "for the victims and for our nation."

McVeigh, 33, has admitted bombing the Alfred P. Murrah Federal Building in Oklahoma City on April 19, 1995, killing 168 people and injuring hundreds more.

He said he viewed the deaths of 19 children in a day-care center as "collateral damage," necessary to make his point about government corruption.

McVeigh's attorneys said Friday that he may use the reprieve to take "a fresh look" at his decision late last year to stop fighting his execution.

At the same time, Ashcroft ordered the Justice Department's inspector general to investigate what he called the FBI's failure to comply with disclosure rules in McVeigh's 1997 Denver trial.

The Justice Department's last-minute disclosure might help Terry Nichols, according to his attorney, Michael Tigar. Nichols is serving life in prison for conspiracy, although he was acquitted of taking part in the actual bombing and of murder.

Jurors said they acquitted Nichols of murder because of testimony pointing to unknown accomplices who might have been involved.

Tigar said Friday that he plans to file an appeal with the U.S. Supreme Court asking for a new trial for Nichols.

"Terry Nichols was acquitted of most of the charges against him," Tigar told CNN. "He's got a real defense here."

Much of the new information stems from the early days of the investigation and the search for others who may have been involved.

Jones said McVeigh was probably elated by the document glitch.

"There is egg on the face of the FBI this morning," Jones said.

Ashcroft noted that the withheld material normally wouldn't be available to criminal defendants. But in McVeigh's case, a special agreement had broadened the scope of so-called "discovery" material.

One of McVeigh's attorneys, Rob Nigh of Tulsa, flew overnight to Indiana to meet with McVeigh, who is in the death unit of the Terre Haute Federal Penitentiary.

McVeigh is taking "a fresh look" at his options, Nigh said, adding that it's too early for the legal team to decide what it will do.

McVeigh, who ended his appeals and sought the execution, could decide not to act on the disclosure.

"He had said his good-byes to his family and to friends," Nigh said.

"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. And, quite frankly, he's distressed with the impact that it will have on others."

Denver attorneys Nathan Chambers and John Richilano, who worked with Nigh on McVeigh's unsuccessful appeals, are going over the volumes of paperwork.

"We don't know yet what's in them," Chambers said during a news conference outside his LoDo office. "We've just scratched the surface."

He said McVeigh will be advised of their contents, and then he will decide what to do "when he can do so on an informed basis."

Chambers blasted the FBI.

"This is the FBI's most important investigation, maybe ever. In a case of this magnitude, the fact that the FBI has these documents for six years and does not release them until six days before his execution, it's astounding."

President Bush said that the delayed execution will prolong the anguish of the victims and others awaiting McVeigh's execution, which would be the first federal death penalty in 38 years.

"But we owe it to our country to make sure people who face the death penalty are treated fairly," Bush said.

The discovery of the documents was shrouded in generalities from the FBI and Justice Department.

The FBI's Danny Defenbaugh, who was in charge of the case and now heads the FBI's Dallas office, said the bureau began archiving all the case documents in December.

At some point, comparisons with other databases turned up extra documents from field offices that hadn't been given to prosecutors -- which meant that they could not have been given to defense lawyers.

Defenbaugh said he notified his superiors of the problem Tuesday.

But Lori Bailey, spokeswoman in the Dallas FBI office, said agents became aware of the problem as early as January.

None of the withheld documents come from the Denver FBI office. Most of them, 446, came from the Los Angeles FBI office. There were 218 pages from the Salt Lake City office, 179 from Buffalo, near McVeigh's hometown, and 26 from Paris, France, among the 46 cities listed.

A letter from Sean Connelly, who was on the prosecution team and is now in the Denver U.S. attorney's office, says that most of the material relates to agents' search for "others unknown."

Oklahoma Gov. Frank Keating, a former FBI agent, said the situation is an "unforgivable screw-up," but not likely an intentional hiding of information.

The FBI admitted during the McVeigh trial that it didn't run checks on about 1,100 of the fingerprints lifted during the investigation, including 23 from the Kansas motel where McVeigh stayed in the days before the bombing.

In addition, whether the new evidence would have changed McVeigh's conviction isn't the only issue. Because federal capital punishment trials have a separate penalty phase, attorneys must consider whether the new material might have persuaded one of 12 jurors to hold out against the death penalty.

The delay of the execution from Wednesday to June 11 was accepted with stoicism by many of the victims in Oklahoma City and elsewhere. They had been steeling themselves for the final act in the McVeigh case and now must wait another month.

"He admitted his guilt," said Peggy Broxterman, mother of a man who was killed. "That's it, get it over with. I really don't care what they do. He's going to die, so why prolong it?"

But others said the delay only postpones the inevitable, and they're willing to wait to ensure it is done properly.

"It's too sensitive of a case to make any kind of a mistake, and I don't want a cloud hanging over this execution in any way," said Marsha Kight, whose daughter died in the blast.

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