- The Washington Times - Friday, May 18, 2001

Oklahoma officials now fear the bungled release of FBI documents that caused postponement of Timothy McVeighs execution could destroy the states last chance to sentence Terry Nichols to death for 160 murders the federal prosecution did not cover.
To dramatize their desperation, Oklahoma County prosecutors this week subpoenaed FBI agents to deliver "any and all … newly discovered" files at a special hearing Wednesday in the county jail basement in Oklahoma City.
Federal officials consider the subpoena unenforceable, but they clearly felt the pressure when District Judge Ray Dean Linder scheduled the special hearing after a telephone conference with attorneys on both sides.
Judge Linder postponed another hearing, scheduled for Monday, that is required as a first step in any Oklahoma state trial. He has set no new date for Nichols next round of legal action.
It was the third time the state prosecution has been delayed. The first two delays involved disqualification of the original judge last summer and removal, in the fall, of a prosecutor accused of violating a gag order.
"State discovery laws make it imperative that we deliver these materials to the defendant in a timely manner. Failure to do so jeopardizes the legal rights of … the state to prosecute the defendant for the deaths of 160 citizens of Oklahoma," Assistant District Attorney Sandra Elliott said in a letter sent to Attorney General John Ashcroft, President Bush and the states congressional delegation.
Miss Elliotts letter said U.S. attorneys in Oklahoma City and Denver told state officials the papers would not be made available until at least today because the federal officials, "did not like the manner in which the materials were indexed."
She wrote: "Later still we were told that we may not be getting the materials at all, but we would get a firm answer by Friday [after they reviewed the papers] 'to determine the impact of the materials on the validity of the convictions in the federal trials."
Neither Miss Elliott nor First Assistant District Attorney John Jacobsen would discuss the dilemma yesterday.
"Were under a gag order," Mr. Jacobsen said in a brief telephone conversation. "We cannot talk about the case, disclose any correspondence, or answer any questions." A previous prosecutor was removed from the case for violating that gag order.
In testimony Wednesday to the House Appropriations Committee, FBI Director Louis J. Freeh said he too was limited by the gag order, but he seemed eager to puncture trial balloons suggesting Nichols may find help in those pages.
"I have been advised that the newly discovered documents will have no bearing on the convictions or sentences of Timothy McVeigh or Terry Nichols," he said, citing a "page by page review" by Justice Department attorneys and FBI agents.
Attorneys for Nichols claim the 3,135 documents disclosed May 10 and another 100 pages turned over Tuesday could affect Nichols trial.
While state prosecutors were left empty-handed, Nichols attorney, John Richilano, received two shipments including one "huge box" and said he is not certain there wont be more.
"Why would I think that this is it? Who knows?" he said.
Neighbors, some of the 700 victims, and survivors of the 168 persons killed in the bombing of the Alfred P. Murrah Federal Building were critical of federal jurors. They faulted the jurors for convicting Nichols, 46, merely of involuntary manslaughter in the deaths of eight federal agents.
Those critics and many other Oklahomans are demanding that Nichols be executed — especially for the deaths of the 19 children who perished on April 19, 1995.
McVeigh, 33, was to have been executed on Wednesday at a federal prison in Terre Haute, Ind. After it was discovered that thousands of FBI documents were withheld, the execution was postponed until June 11.
Defense attorneys insist the wealth of papers mentioning a John Doe No. 2 could have a more direct effect on Nichols than on McVeigh, who denies that any such person exists.
In a letter to the Houston Chronicle early this month, McVeigh renewed criticism of trial attorney Stephen Jones for continuing to insist a ringleader remains at large.
"Does anyone honestly believe that if there was a John Doe #2 (there is not), that Stephen Jones would still be alive?" McVeigh wrote.
In the early days after the bombing, the FBI circulated three sketches purporting to show a John Doe No. 2. The sketches were based on a mechanics recollection of a person who accompanied McVeigh to rent the Ryder truck later packed with explosives and left outside the Murrah building.
FBI agents discount that report, but they have failed to quash suggestions in court and among McVeigh sympathizers that a larger conspiracy is being covered up.


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