Execution decision in McVeigh's hands
TH defense attorney says it could be months, years before bomber put to death
By Karin Grunden
Tribune-Star
It took the attorney general's order to stop Timothy McVeigh from dying by lethal injection today.
But the fate of McVeigh's June 11 execution date is most likely up to the Oklahoma City bomber himself, a Terre Haute defense attorney said Tuesday.
"Right now it's all in the hands of McVeigh," said William G. Smock, who has 28 years of state and federal court experience, including death penalty cases.
McVeigh, 33, was convicted of the April 19, 1995, bombing of the Alfred P. Murrah federal building, which killed 168 people. In December, the federal death row inmate asked for his appeals to end.
Less than a week before his May 16 scheduled execution date, the FBI revealed that thousands of pages of investigatory documents were never turned over to McVeigh's defense team. A court order had required that such evidence be turned over prior to McVeigh's 1997 trial.
On Friday, Attorney General John Ashcroft announced a delay in the execution, setting a new date of June 11.
Smock said he would be shocked if McVeigh's execution takes place next month - unless the death row inmate tells his lawyers he doesn't care about these newly discovered documents, and that he still wants to die.
However, if McVeigh doesn't want to be executed in June, it could mean a significant delay in the case, Smock said.
"It wouldn't surprise me, if McVeigh really wanted to fight it, that we're talking quite a few months or even several years," before the execution, he said.
McVeigh's attorneys could file a petition asking the original trial judge, an appeals court or even the Supreme Court for a new trial or sentencing based on more than 3,000 pages of FBI evidence that surfaced last week. A hearing likely would follow the request.
"If he gives his consent to his lawyers to pursue this, even to schedule a hearing and get all the parties there ... and to have the hearing, it's hard to concede that could be done by June 11, probably not even scheduled by June 11, the way courts work," Smock said.
If McVeigh's attorneys file a petition for a new trial, they also might ask for additional time - 60 to 90 days - to prepare for the hearing, a request that Smock believes probably would be granted - further delaying the case.
Richard Burr of Houston, who was on McVeigh's original defense team and is assisting with the new developments, said it's too early to know what steps McVeigh or his attorneys might take.
The analysis of the 700 witness interview reports turned over by the FBI last week is under way, Burr said Tuesday. According to Reuters news agency, seven additional documents have been forwarded to McVeigh's defense.
"It's not anywhere close to completion," Burr said of the review of the new evidence. "We've just got to roll up our sleeves and work."
Until the attorneys know what the documents disclose, it's impossible to know what will happen next in the case, Burr said.
While Burr declined to speculate how long McVeigh's case could be drawn out by these developments, he did indicate that if "something of interest" is discovered in the documents "I'm sure there'll have to be some investigation done."
At that point, finding and interviewing the witnesses would consume even more time than reading the documents, he said.
No matter what's discovered in the documents, Smock believes a judge would allow for an evidentiary hearing if McVeigh's attorneys request one, especially considering the circumstances in the case.
"It's going to be tough for a judge just to summarily say, 'Oh, there's nothing to this.' Because, sort of the credibility of the government's on the line here," the Terre Haute attorney said.
At the time of the hearing, the burden would be on the defense to show the newly discovered evidence could have affected the outcome of the first trial had it been introduced, Smock said.
"It's really pretty tough standard to meet," he said.
The judge's options will be either to deny the defense's request or grant a new trial or sentencing.
It's unlikely that a new trial would be ordered, Smock believes.
And in the end, he isn't sure that any of the documents will make a difference in McVeigh's case.
"To be frank ... it's going be difficult to get [the conviction] reversed on these grounds," Smock said. "Percentage-wise, if you just looked at how often these types of petitions are successful, the odds are definitely against McVeigh. There's no doubt about that."
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