- The Washington Times - Tuesday, June 5, 2001

The Supreme Court yesterday told the Justice Department to answer Oklahoma City bombing conspirator Terry Nichols accusation that FBI agents deliberately withheld evidence affecting him and Timothy J. McVeigh.
The extraordinary action — on the eve of a Denver hearing to decide if McVeighs scheduled June 11 execution should be postponed — sends a powerful message to U.S. District Judge Richard P. Matsch in whose courtroom that decision could be made as early as tomorrow.
The rare order invited Solicitor General Theodore Olson to respond by July 4 to Nichols claims that the FBI deliberately hid evidence from prosecutors and defense alike, which the Justice Department vigorously denies.
Justice spokeswoman Chris J. Watney said yesterday there would be no comment on the order. "We will respond directly to the court," she said.
The courts summer recess likely will have begun by then, which could postpone until fall Nichols request that the court reconsider its own refusal to hear his appeal for a new trial. Supreme Court rules limit such rehearings to cases with "intervening circumstances of a substantial or controlling effect or to other substantial grounds not previously presented."
It took a majority vote by the justices to call for such a response, according to the authoritative "Supreme Court Practice," a law school textbook that says the very few rehearings ever granted almost always were preceded by a request for a response, although the request does not assure approval.
Nichols Oklahoma state trial on 160 counts of homicide also is on hold because of the newly found documents.
Judge Matsch seems certain to take note tomorrow that the justices are seriously pondering Nichols claims, which are similar to McVeighs and are based on the same withholding of about 4,000 pages of documents in 46 field offices.
However, the district judge — who presided at both mens 1997 trials and sentenced McVeigh to death — also is bound by Supreme Court precedents that make McVeigh ineligible for another round of appeals and bar the judge from using the subterfuge of reopening an old appeal, as Justice Department lawyers pointed out in papers filed in Denver yesterday.
Second or "successive" rounds of appeals require a "miscarriage of justice" claim involving true innocence, which McVeighs own lawyers said he cannot make.
The Justice Department relied on a 1998 decision, Calderon v. Thompson, which prohibits a federal court from withdrawing its mandate in order to get around the legal barriers to a "successive" appeal after a prisoner exhausts his legal rights.
"Timothy McVeigh does not, and could not, suggest that he is actually innocent of the charges of which the jury convicted him. He does not, and could not, suggest that the death penalty is unwarranted for his exceptionally aggravated crimes. He does not, and could not, suggest that he has even remotely satisfied the Antiterrorism and Effective Death Penalty Act of 1996," the federal brief says.
"McVeigh voluntarily chose not to appeal, and the time for seeking permission to do so has long since passed," the government brief says.
The Justice Department papers filed in Denver do not mention yesterdays Supreme Court order, but they point out the Supreme Court allows appeals courts to consider new evidence unavailable at trial, such as McVeighs repeated confessions since dropping his appeals in December.
"The only new 'probative evidence comes not from the recently produced documents but from McVeighs own mouth and hand," the government lawyers said in their brief.
On May 11, in papers filed just 15 minutes before the deadline, Nichols asked for a rehearing of the courts refusal to consider giving him a new trial on charges that resulted in a life sentence for conspiracy and eight counts of involuntary manslaughter.
His unsuccessful appeals were based on claims that defense lawyers did not have access to investigative material, long before the FBI disclosed that thousands of pages of its documents were not turned over.

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