- The Washington Times - Thursday, June 7, 2001

DENVER — The judge in the Oklahoma City bombing trial yesterday refused to delay next weeks execution of Timothy McVeigh, ruling that the thousands of newly released FBI documents related to the case fail to cast any doubt on McVeighs guilt in the deadly 1995 bombing.
"Whatever in time may be disclosed about the possible involvement of others in this bombing, it will not change the fact that Timothy McVeigh was the instrument of death and destruction," said U.S. District Court Judge Richard Matsch after hearing oral arguments yesterday. "For that he was sentenced to death by lethal injection. I find there is no good cause to delay that order."
McVeigh attorney Rob Nigh said he would immediately appeal the order to the 10th U.S. Circuit Court of Appeals, which is across the street from Judge Matschs court.
McVeigh, 33, is scheduled to die Monday by lethal injection at the federal prison in Terre Haute, Ind.
"Of course, we are extremely disappointed in the courts ruling today," Mr. Nigh said in brief remarks before the courthouse here. "If Mr. McVeigh is allowed to be executed five days from now, the integrity of the process will have been destroyed."
The ruling stunned legal experts, many of whom had predicted Judge Matsch would give the defense more time to sift through the 4,000 newly released documents. In a brief filed with the court, defense attorneys said they had already identified in their initial review at least 36 new witnesses whose names they had never heard before.
"What [Judge Matsch] is saying is that the evidence is so overwhelming and the act so horrifying that theres no information [in the documents] that could have overturned the death sentence," said Larry Pozner, a Denver defense lawyer who has followed the case.
Judge Matsch did have harsh words for the FBI, calling the error that led to the recent discovery of 4,000 documents related to the case "shocking" and saying it was "difficult for me to understand how this could have happened."
The FBI released the documents last month, nearly three years after McVeigh was found guilty on murder and conspiracy charges, explaining that they had been misfiled and apologizing for the error. Judge Matsch said he found out about the mistake in a letter from U.S. Attorney Sean Connelly, who argued the governments case yesterday.
"Its a good thing I was in the quiet of judicial chambers and not in the courtroom because my judicial temperament escaped me when I read it," the judge told Mr. Connelly during the two-hour hearing. "It was shocking."
But Judge Matsch ultimately rejected arguments from McVeighs attorneys that the lost files constituted a "fraud upon the court" and pointed to a possible FBI conspiracy to withhold critical evidence from the defense.
The judge said there was "no pattern" to the undisclosed documents, noting that some of them had nothing to do with McVeigh and instead focused on co-conspirator Terry Nichols, and that some repeated information found in other documents already obtained by the defense.
"There has to be drawn a distinction between the integrity of the FBI and the integrity of the adjudicating process," he said. "It is a function of others to hold the FBI accountable … It is not my purpose to try the FBI."
McVeigh has admitted his guilt in the years since the trial, and his attorneys yesterday didnt even try to argue that the FBI documents could prove his innocence. Instead, they claimed that the documents hinted at a broader conspiracy in which McVeigh played only a supporting role, a scenario that could have persuaded a jury to be more lenient with McVeigh.
"There are additional names of new witnesses we had no opportunity to obtain," said Mr. Nigh. The papers "could have resulted in Mr. McVeigh receiving a sentence less than death."
But Judge Matsch called that argument "just not tenable," saying that evidence of McVeighs involvement in the bombing was too strong.
"Whatever role others may have played, there is no question that Timothy McVeigh committed murder and mayhem as charged," he said.
McVeigh was convicted of murder and conspiracy charges in the bombing of the Alfred P. Murrah Federal Building, the deadliest act of terrorism on U.S. soil. On April 19, 1995, McVeigh parked a Ryder truck containing a homemade 4,000-lb. fertilizer bomb in front of the Murrah building and detonated it, killing 168 persons, including 19 children.
McVeigh had declined further appeals, saying he was ready to die, when the FBI documents were discovered six days before his original execution date of May 16. Attorney General John Ashcroft ordered the execution delayed until June 11, but refused to grant a second extension.
Mr. Ashcroft praised yesterdays decision, saying "the ruling of the court in Denver today is a ruling for justice."
Paul Heath, president of the OKC Murrah Building Survivors Association, also backed Judge Matsch. "Lets support the jury and judges decision," he said.
"On Monday, Timothy James McVeigh, the condemned, delusional, suicidal bomber of the Oklahoma City federal building, who showed his real side as a hypocrite by bringing this appeal, will die by lethal injection," said Mr. Heath.
McVeighs appeal to the 10th Circuit Court could come as early as today.

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