'Postponing the inevitable'
Experts: Stay likely
Many in legal profession believe McVeigh still will die
By Howard Greninger
Tribune-Star
The federal judge who sentenced Timothy McVeigh to die will probably delay his June 11 execution, but it's doubtful McVeigh will ultimately escape his death sentence, legal experts said.
Christopher Gambill, a Terre Haute attorney, said the FBI's admission that it failed to disclose more than 4,400 pages of evidence in McVeigh's case will almost certainly warrant a stay of execution and could trigger years of appeals.
"I think this is the start of putting into motion a series of appeal steps to seek to overturn the verdict because he was denied a fair trail," Gambill said. "If that is denied, they can appeal to a higher court and eventually to the Supreme Court."
Judge Richard Matsch, who presided over McVeigh's 1997 trial for the Oklahoma City bombing, has scheduled a hearing for Wednesday in Denver.
In their petition, McVeigh's lawyers argue that the government perpetuated a "fraud upon the court" by withholding the documents and that any judgment of the court should therefore be void.
McVeigh was just six days from his execution last month when the FBI disclosed that it had discovered the additional documents. The news prompted Attorney General John Ashcroft to reschedule the execution for June 11.
To obtain a stay, McVeigh's lawyers must simply demonstrate that they need more time to review the documents, attorneys said.
To get a new trial, a much more difficult standard must be met: Showing that something in the documents prevented McVeigh from receiving a fair trial or cast doubt on his guilt.
Stephen Jones, who represented McVeigh at trial, said Matsch will almost certainly grant a stay of execution. And McVeigh could win a new sentencing if his lawyers can call into question McVeigh's role in the bombing by showing evidence others were involved.
Jones has maintained McVeigh did not act alone -- a claim McVeigh has denied.
"Let's remember the grand jury charged 'McVeigh, Terry Nichols and others unknown to the jury.' If the government withheld evidence of others and if it should turn out that those others are in fact known and the government held that back for one reason or another, they could get the sentencing overturned and resentenced," Jones said.
During a news conference Thursday outside the federal prison in Terre Haute, where McVeigh sits on death row, defense attorney Richard Burr said FBI records show agents collected important information about other suspects but never followed up on it.
Ashcroft, meanwhile, repeatedly has said the documents shed no new light on the case nor do they place McVeigh's guilt in doubt.
He said Thursday that the Department of Justice "is prepared to oppose vigorously" any attempts to overturn McVeigh's conviction and sentence or to force a new trial.
"Based on overwhelming evidence and McVeigh's own repeated admissions, we know that he is responsible for this crime, and we will continue to pursue justice by seeking to carry out the sentence that was determined by a jury," Ashcroft said.
William Smock, a Terre Haute defense attorney, said McVeigh's efforts are "probably just postponing the inevitable."
"The stay of execution is very likely, but getting the sentence or judgment of guilt overturned is very unlikely," Smock said.
A stay is probable because McVeigh's lawyers will need time to conduct their own investigation "regarding issues that may be contained within that evidence given to the defense," he said.
"I think the other reason is, in order to protect the integrity of the judicial system, the judge would want to make sure that on such a high-profile case that no one could make a reasonable argument that the court is not being even-handed in how they deal with this defendant -- no matter how heinous the allegation," Smock said.
Judges tend to step carefully when a death sentence is involved, Smock said. "The judge will want to make sure the person has a full and complete opportunity to render an effective defense," he said.
Jim Cross, a spokesman for the Terre Haute prison, home to the federal government's only execution chamber, said Thursday that despite the recent developments, plans for McVeigh's execution were continuing.
"Until we hear official word from the Department of Justice or the courts, we will proceed," he said.
If McVeigh's execution is postponed, the next death-row inmate set for execution is convicted killer Juan Raul Garza, on June 19. It has been 38 years since the federal government has put a criminal to death.
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