Documents raise questions about execution
McVeigh lawyer declines to reveal bomber's response
By Suzanne Risley and Karin Grunden
Tribune-Star
Department of Justice officials admitted Thursday that the FBI mistakenly withheld information from McVeigh's defense attorneys during his 1997 trial.
The Justice Department handed thousands of documents over to McVeigh's attorneys Wednesday to view for the first time, less than a week before McVeigh's scheduled execution.
Former McVeigh attorney Richard Burr told the Tribune-Star late Thursday the foul-up amounts to a violation of pre-trial rules on disclosure, and the government should postpone the execution while McVeigh's attorneys examine the documents.
McVeigh is scheduled for execution Wednesday in the U.S. Penitentiary, Terre Haute.
Discovery of the material came after an FBI archivist requested all Oklahoma City-related material, according to a letter dated Wednesday to McVeigh's attorneys. Sean Connelly, special attorney to the U.S. Attorney General, sent the letter. The letter also was delivered to Richard P. Matsch, the judge who presided over McVeigh's trial in Denver.
In the letter, Connelly describes the information as FBI investigation reports "and physical evidence, such as photographs, written correspondence and tapes."
Nathan Chambers, one of McVeigh's attorneys, said Thursday that defense attorneys are considering their options. Chambers said he had spoken to McVeigh about the development but declined to reveal what he said.
"Mr. McVeigh is going to think about it and decide how he wants to proceed," Chambers said.
In his letter, Connelly said that FBI director Louis Freeh and Special Agent in Charge Danny Defenbaugh requested all bombing-related information from each field division before McVeigh's trial and had been assured that all materials were forwarded. Connelly stated that he had learned of the documents on Tuesday.
"While the Department is confident the documents do not in any way create any reasonable doubt about McVeigh's guilt and do not contradict his repeated confessions of guilt, the Department is concerned that McVeigh's attorneys were not able to review them at the appropriate time," read a statement released Thursday evening by the Department of Justice.
"Nonetheless, many of the materials should have been produced under the reciprocal discovery agreement. We are producing the materials now so you can make your own determinations," Connelly stated in his letter.
In "American Terrorist: Timothy McVeigh & the Oklahoma City," a book written by two Buffalo, N.Y., reporters, McVeigh admitted he was responsible for the bombing that killed 168 people in 1995.
Richard Burr, an attorney for McVeigh during his trial and appeals, called the government's failure to turn over the documents an "embarrassment" and a "blunder." Burr continues to assist attorneys Chambers and Robert Nigh Jr. on the McVeigh case, he said.
"It was a false representation to the court," Burr said. "There is no way the defense team can adequately review these between now and next Wednesday."
Some of the documents, which are referred to as 302s, contain thousands of pages of details from interviews with witnesses, Burr said. After FBI agents interviewed potential witnesses, they dictated the notes onto the 302 forms, he said.
Under the pre-trial court's order, the government was required to turn all the 302s over to the defense, he said.
"At the minimum, this is a violation of a pre-trial order," Burr said.
While the documents may not mean anything for McVeigh's defense, their contents could have affected how the case was tried, Burr said. The government should take responsibility and postpone the execution, he said.
Rory Little, an attorney and professor at Hastings College of the Law in San Francisco, said attorneys will have to prove the discovered evidence would have made a difference in the case.
"There's no chance they withheld it intentionally," Little said of the FBI. The discovered documents probably were separated from relevant 302s in the case, Little said.
"It does surprise me they came up now," he said. He predicts the information is "totally irrelevant but you never know."
Burr said the execution date was set by the Bureau of Prisons, not the court.
"It is totally within the power of the attorney general to change the execution date," he said. "It doesn't require a court order to do that."
The Associated Press contributed to this report.
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