Attorneys for convicted terrorist Timothy McVeigh could ask a federal court to delay Wednesdays scheduled execution pending a hearing to determine if the FBI improperly withheld documents that should have been turned over to the defense.
FBI officials told a federal judge yesterday that the bureau had mistakenly withheld more than 3,000 documents from McVeighs attorneys, who last night said they were considering “all options.”
Federal officials said the error was discovered when FBI agents began gathering up evidence in the case to be moved to the bureaus archives.
Justice Department spokeswoman Mindy Tucker said the department had notified McVeighs attorneys that a number of FBI documents that should have been provided to them during the discovery phase of the trial had not been turned over.
“While the department is confident the documents do not in any way create any reasonable doubt about McVeighs guilt and do not contradict his repeated confessions of guilt, the department is concerned that McVeighs attorneys were not able to review them at the appropriate time,” she said.
“The documents have been made available to McVeighs attorneys, and the department has asked for notification if they believe any of the documents create any reasonable doubt about McVeighs guilt,” she said.
In a letter last night to the defense lawyers, Sean Connelly, special attorney to Attorney General John Ashcroft, said the documents included material generated by FBI field offices outside Oklahoma City and consisted of transcripts of sworn statements and interviews of witnesses by FBI agents and other physical evidence, including photographs, written correspondence and tapes.
The material was generated at FBI field offices in at least 30 states and in Paris, as part of a massive FBI investigation known as “OKBOMB.”
Mr. Connelly wrote that FBI Director Louis J. Freeh and Agent Danny Defenbaugh, who headed the Oklahoma City field office, had requested on numerous occasions that the documents be forwarded to Oklahoma City “and had received numerous assurances that all such materials had been forwarded.”
“We do not believe anything produced is Brady material bearing on the federal convictions or sentences of Timothy McVeigh or Terry Nichols,” Mr. Connelly wrote. “Similarly, we do not believe anything in the materials even makes a prima facie showing of either mans actual innocence. … We are producing the materials so you can make your own determinations.”
None of the documents is expected to be favorable to McVeigh or Nichols, according to law enforcement sources.
The FBI, which initiated an internal investigation yesterday to determine how the records were overlooked, referred inquiries in the matter last night to the Justice Department.
McVeighs attorneys, led by Ron Nigh and Nathan Chambers, were given the documents last night and are said to be considering their next move.
The documents were flown to McVeighs Denver defense team on an FBI plane. The papers also were delivered to attorneys for Nichols, who is serving a life sentence for helping plan the bombing.
Mr. Chambers said he had spoken personally with McVeigh about the FBIs failure to turn over the documents. He said McVeigh indicated he would consider the matter and decide on how best to proceed. Mr. Chambers did not elaborate.
“Here we are a full six years after the bombing and less than a week before Mr. McVeighs scheduled execution and these reports mysteriously appear. So its a cause for concern,” he said.
Lawyers and others close to the case noted, however, that McVeigh may not agree to any delay. He already has boasted of his guilt, claimed sole responsibility for the bombing, expressed his willingness to die as scheduled and has refused all appeals.
U.S. District Judge Richard Matsch, who heard the McVeigh case, was not available last night for comment.
A jury in Oklahoma City found McVeigh guilty in the 1995 bombing of the Alfred P. Murrah Federal Building, in which 168 persons were killed. The same jury recommended the death penalty, which Judge Matsch ordered.
McVeigh is scheduled to become the first person executed under federal law since 1963.
He is slated to die by lethal injection at 7 a.m. Wednesday at the federal penitentiary in Terre Haute, Ind.