- The Washington Times - Friday, June 1, 2001

Oklahoma City bomber Timothy McVeigh yesterday dropped his reputed militaristic stoicism and asked a federal judge for a stay of execution, reversing a "final decision" to abandon all appeals.
Despite assurances to U.S. District Judge Richard P. Matsch before his last appeal deadline passed in early January, McVeighs legal team filed in Denver a sealed request with Judge Matsch charging that the FBI committed "fraud upon the court" by mishandling evidence from the bombing that killed 168 persons.
"The governments false statements that everything had been obtained and produced worked a fraud upon the court and defeated Mr. McVeighs right to a fair trial and sentencing proceeding," said the filing by Nathan Chambers, McVeighs Denver attorney.
At a brief, emergency court session on the request last night, Judge Matsch ordered the government to respond by Monday and prepare for a hearing on the merits Wednesday, less than five full days before the scheduled execution.
Attorney General John Ashcroft vowed again yesterday "to oppose vigorously any attempts by McVeigh to overturn his conviction and sentence or to force a new trial" and said McVeighs admitted guilt is beyond question.
McVeighs legal team asked for time to make fair use of the new evidence, which the government said has no bearing on McVeighs guilt. The 38-page filing had about 16 pages of material redacted and placed under seal.
"He was prepared to die," his attorney Robert Nigh said earlier yesterday outside the federal penitentiary in Terre Haute, Ind., indicating he was moving to keep his client alive long enough to find grounds to overcome legal deadlines on reopening an appeal without proof of innocence.
Fellow McVeigh lawyer Richard Burr said his client is motivated not by self-interest, but by the same concerns about government that led him to bomb the Alfred P. Murrah Federal Building, an act that killed 19 children under age 5.
"He right now thinks the most important thing in his life is to help bring integrity to the criminal-justice system," said Mr. Burr upon emerging with Mr. Nigh from the death-row meeting where they obtained the ex-soldiers approval to ask Judge Matsch to postpone the lethal injection, now scheduled for 7 a.m. on June 11.
Mr. Burr said McVeighs deep concern about federal law-enforcement excesses had overcame his willingness to accept punishment.
"There are still critical documents about this investigation being withheld by the FBI. We must get to the bottom of this," he said. "There is a very long and old doctrine that the Supreme Court has articulated periodically, because it doesnt happen very often, that when a fraud upon the court has been perpetrated by one of the parties to a legal proceeding, any judgment that the court makes is void."
The court papers, filed later, said the FBI may have destroyed some documents and asked the judge to bar government officials from interfering with the defense investigation or revealing details of its filing.
Rather than claiming McVeigh to be innocent, as a new federal law requires in reopening appeals after a deadline, his attorneys talked about sentencing statutes that say "minor participation is a mitigating factor and nonprosecution of equally-culpable participants may be an additional mitigator."
The filing implies that McVeigh may claim he was a minor participant and that others at least equally as guilty were not pursued.
At a Dec. 28 hearing, the judge warned McVeigh that the court no longer possessed absolute power to reopen the case once a January deadline passed.
Prosecutors said that no matter the immediate outcome, McVeigh would eventually be executed.
"If death-penalty crimes were ranked one to 100, this is 100," lead trial prosecutor Pat Ryan said in Oklahoma City. "There has never been anything worse committed on American soil, and Timothy McVeigh is going to get the death penalty at the end of the day."
Mr. Ashcrofts statement, issued yesterday after McVeighs attorneys announced their client would ask for a delay, minimized the relevance of the FBIs withholding of thousands of pages of investigative notes, which led the attorney general to make the unprecedented May 11 decision to delay the execution one month.
"No document in this case creates any doubt about McVeighs guilt or establishes his innocence," Mr. Ashcroft said. "To overturn the jurys verdict or to force a new trial, McVeigh must prove that the documents establish his innocence."
He did not specify which of the admissions of guilt McVeigh has made, but the Justice Department is armed with his oral confession to two reporters who wrote the McVeigh biography, "American Terrorist," and a handwritten confession McVeigh wrote to Fox News clarifying his motives and objectives, the text of which was published May 8 in The Washington Times.
As if to underscore Mr. Ashcrofts pronouncement, his department issued a letter that contradicted former FBI Special Agent Rick Ojedas claim on CBS "60 Minutes II" on Tuesday that his reports were not given to defense attorneys as required.
The letter said one of two cited reports was a Form 302 with evidence serial number D17509, which was produced. The second was said to be from a different unspecified case and not required to be turned over. It was supplied to McVeighs attorneys anyway on Wednesday.
For McVeighs attorneys, yesterdays decision culminated months of trying to persuade him he had worthwhile grounds to appeal and enough chance of success to pursue it.
In the wake of discovering that some 4,000 pages of notes were not handed over, as required by a prosecution agreement, McVeigh, 33, was described as newly interested in appealing.
At a hearing Dec. 28, 2000, Judge Matsch, who also conducted the 1997 trial and passed sentence, carefully quizzed McVeigh about his awareness of the rights he was surrendering.
McVeighs written statement said, "I, Timothy James McVeigh, do hereby advise the court and all parties that I do not wish to pursue any further appeals in this case … . This decision to forgo appeal is done against the advice of my lawyers."
The judge then explained via a two-way television hookup to death row that Congress put time limits on subsequent appeals, and that special court approval for exceptions required persuasive proof that any new evidence was meaningful.
The court "must determine that the petition contains newly discovered evidence that if proven and viewed in light of the evidence as a whole would be sufficient to establish by clear and convincing evidence that no reasonable fact-finder would have found … the defendant guilty of the offense," Judge Matsch explained.
"I understand," McVeigh replied.
"So to put it plainly, you know, youre making a decision here which may be the final decision with regard to your future. Is that your understanding?" Judge Matsch asked then.
"I understand. It is the position I take now and … I can say that I do not foresee changing that decision," McVeigh replied.
Judge Matsch then permitted him to surrender those rights against his attorneys advice, without taking McVeigh up on his offer to undergo a special psychological exam.
"The court finds additionally that there is nothing inherently irrational about a person making a decision to accept the judgment of a court," the judge said.
McVeighs direct appeal of his conviction was rejected by courts all the way to the Supreme Court and a second appeal was lost Oct. 13, when Judge Matsch turned away claims that trial lawyer Stephen Jones, of Enid, Okla., had such a conflict of interest that it undermined McVeighs constitutional right to effective counsel.
Denver lawyers not involved in the case predicted that his legal team would succeed — if only in delaying the inevitable.
"Judge Matsch is not going to let anyone be executed if there are any doubts about the fairness of the procedures. It is just not going to happen," lawyer Scott Robinson told the Denver Post before yesterdays announcement. "Everything points to his granting a stay if the defense asks for it.
"Matsch is going to give them whatever time they need if they can make a reasonable showing … . He is not going to rush them. There is too much at stake here," said Phil Cherner, vice president of the Colorado Criminal Defense Bar.
"This kind of thing is so powerful, its what everybody is terrified of — that theyll kill somebody and then after the fact something pops up."


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