McVeigh: Delay execution

OKC bomber's lawyers want time to review new papers

Karen Abbott, News Staff Writer

Published June 1, 2001 at midnight

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McVeigh: Delay execution

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Timothy McVeigh's lawyers accused the government of fraud Thursday and asked a Denver judge to delay the admitted Oklahoma City bomber's execution.

"The government's false statements that everything had been obtained and produced worked a fraud upon the court and defeated Mr. McVeigh's right to a fair trial and sentencing proceeding," the lawyers said in a court filing that seeks the postponement.

They said they need time to study the new evidence, interview witnesses they didn't know about and analyze whether the material could have affected McVeigh's conviction and death sentence for the Oklahoma City bombing.

"We need all the time it takes to get ready," defense attorney Christopher Tritico of Houston said outside Denver's federal courthouse.

Denver U.S. District Judge Richard Matsch, who presided over McVeigh's trial, scheduled a hearing on the requested execution delay for 9 a.m. Wednesday -- five days before McVeigh is scheduled to die by injection in a federal prison in Terre Haute.

The judge also made it clear in his courtroom Thursday that he doesn't entirely trust the government to play fair. He instructed a federal prosecutor to make certain federal agents don't interfere with the defense team.

A Colorado jury convicted McVeigh in 1997 of bombing Oklahoma City's Alfred P. Murrah Federal Building on April 19, 1995, killing 168 people and injuring more than 500 others.

Tritico and co-counsel Nathan Chambers of Denver filed the paperwork in Denver's federal court after McVeigh gave the OK Thursday morning to his other defense lawyers, Rob Nigh of Tulsa, Okla., and Richard Burr of Houston. They met with him in the Terre Haute prison for about two hours.

In Denver, the defense also asked Matsch to hold an evidentiary hearing on the government's alleged evidence fraud. Matsch hasn't scheduled one.

The lawyers refused to discuss details of the new evidence or why McVeigh changed his mind and resumed the appeals he dropped months ago.

Among the papers filed Thursday, however, was a "supplement" stating that one more FBI document surfaced the day before -- six days after U.S. Attorney General John Ashcroft called a news conference to promise the American people that everything had been turned over.

The government has been making such promises for years -- including at least 16 times during legal proceedings in the McVeigh case, according to defense lawyers.

The new document was found in a case file unrelated to the McVeigh case, the paperwork said.

So far, nearly 4,500 pages of newly disclosed evidence, plus 11 CDs containing about 16 hours of audio and video recordings, have been given to the defense, the legal papers said.

Chambers said Thursday that the lawyers are convinced that the government still is withholding more evidence.

Ashcroft, who postponed McVeigh's execution from May 16 to June 11 after the disclosure that the FBI had withheld evidence, repeated Thursday that the government will vigorously oppose more delay.

"No document in this creates any doubt about McVeigh's guilt or establishes his innocence," Ashcroft said in a statement. "To overturn the jury's verdict or to force a new trial, McVeigh must prove that the documents establish his innocence."

But defense lawyers said they don't yet know what the documents do or do not establish and need more time to figure that out.

They also cited a court rule that lets judges overturn earlier judgments if some party to a case committed "fraud on the court." They contend the wrongful withholding of government evidence was such a fraud.

Federal prosecutor Sean Connelly of Denver insisted it wasn't.

"We categorically deny that there has been any fraud on the court," he said outside the Denver courthouse Thursday.

But Matsch warned Connelly that he expects the FBI to play fair.

"Looking at the public papers here, of course, there are a lot of accusations about the conduct of that agency and its people," Matsch told Connelly in his courtroom. "So I would like you to follow up . . . to be certain that the people who may be involved recognize what their obligation is."

Connelly protested, saying there was no reason to believe the government would cheat. "We're certainly not going to obstruct justice," he insisted.

But Tritico, worried that government agents might frighten people the defense now wants to interview, reminded Matsch that FBI agents met some defense witnesses at the airport when they arrived in Denver, and that defense lawyers had repeatedly complained about it to the judge.

Matsch remembered. "Well, we stopped it, didn't we?" he asked Tritico.

Matsch told Connelly he had to be sure such things don't happen again. "I have a little experience in life," he said, smiling.

Matsch said witnesses might easily be intimidated by government agents. "If some government agent . . . comes to them and shows them a badge and credentials and says 'I want to talk to you about this,' that could be an influence that could be unfortunate, I think," the judge said.

He refused to sign a formal order that defense lawyers wanted, limiting government conduct, but he told Connelly, "I have to have some assurance that they're not going to see the government go out and interview all these people."

He said government agents must not "shadow investigate" or contact people just after they are interviewed by the defense, demanding to know what they said.

Contact Karen Abbott at (303) 892-5188 or abbottk@RockyMountainNews.com.

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