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McVeigh execution rescheduled for June 11

John Ashcroft
Ashcroft delays McVeigh's execution amid revelations that FBI documents were not given to the defense.  

WASHINGTON (CNN) -- U.S. Attorney General John Ashcroft Friday delayed the execution of Oklahoma City bomber Timothy McVeigh for one month, until June 11, because the FBI failed to provide his trial defense with more than 3,100 pages of documents from its investigation.

Ashcroft said he did not expect anything in the files of FBI witness interview notes, photographs and tapes to contradict the verdict against the decorated Army veteran, who was sentenced to die for the 1995 truck bombing of the Oklahoma City federal building that killed 168 people.

But he said questions posed by the withholding of the documents were serious and that it was his duty to "protect the integrity of the system of justice."

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The Execution of Timothy McVeigh
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"I know many Americans will question why the execution of someone who is clearly guilty of such a heinous crime should be delayed. I understand the victims and victims' family members await justice," he said.

"But if any questions or doubts remain about this case, it would cast a permanent cloud over justice, diminishing its value and questioning its integrity," he said.

McVeigh's death by lethal injection had been scheduled for 7 a.m. local time Wednesday at the U.S. Penitentiary in Terre Haute, Indiana. On Friday he visited with one of his attorneys to discuss his options in light of the newly disclosed documents.

The one-month delay was granted "to allow his attorneys ample and adequate time to review these documents and to take any action they might deem appropriate in that interval," Ashcroft said. He said he had asked the Justice Department's inspector general to investigate why the FBI failed to turn over the documents.

In Oklahoma City, families of some of the 168 people killed in the April 19, 1995, truck bombing of the Murrah Federal Building expressed dismay at the sudden turn of events.

"Extending this more just adds to the pain, it adds to the fury as far as I'm concerned," said Kristi McCarthy, who lost her father in the bombing.

Jim Denny, whose two children were badly wounded but survived the terrorist attack, said, "It's amazing that the same system he [McVeigh] says is cruel to people and doesn't work is the system that probably is going to let him live a little while longer."

A statement also was also expected from the lead investigator for the FBI into the bombing on why the materials, including some 3,000 pages of FBI forms on witness interviews and other documents, were withheld.

In a related development, Terry Nichols, who is serving a life prison sentence for conspiring to build the bomb and helping McVeigh plan the attack, plans to appeal to the U.S. Supreme Court to intervene in his case because of the new disclosures. His previous bid for a new trial was rebuffed both by the trial court and appeals courts.

Ashcroft stopped short of pointedly criticizing the FBI, but he said he was acting "to assure the American people that they have a right to have confidence in our processes."

The McVeigh Documents

WHAT THE FBI WITHHELD:

• About 3,100 pages of documents and pieces of evidence including FBI reports of investigations, known as "Form 302s" and "inserts," and physical evidence, such as photographs, written correspondence and audio and videotapes.

• Former McVeigh prosecutor Patrick Ryan told CNN that about 1 billion documents were analyzed during the case, so the missing documents are about three out of every 1 million documents in the case.

THE GOVERNMENT'S RESPONSIBILITY:

• In the 1963 decision Brady v. U.S., the U.S. Supreme Court held that due process forbids a prosecutor from suppressing "evidence favorable to an accused upon request where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."

• In its letter to McVeigh's attorneys, the Justice Department said it did not believe that any of the documents are "Brady material bearing on the federal convictions or sentences of Timothy McVeigh or Terry Nichols" or "that anything in the materials makes even a prima facie showing of either man's actual innocence. "

• McVeigh attorney Nathan Chambers called the discovery of the documents "a cause for great concern." He said he does not know "what's in the box, what's going to be disclosed, if there is going to be further investigation required."

POSSIBLE REMEDIES:

• Chambers said McVeigh is considering a number of legal options.

• The evidence could be grounds for an appeal even though McVeigh has waived his appeals in the past.

• McVeigh's attorneys cannot file an appeal on his behalf without his consent because he has not been proven to be mentally incompetent.

• The 1996 Antiterrorism and Effective Death Penalty Act sets a high standard for granting an appeal based on newly discovered evidence. The court can only allow an appeal if there is "newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense."

"While the FBI provided volumes of documents, it is now clear that the FBI failed to comply fully," he said.

The prosecutor in McVeigh's 1997 trial, Patrick Ryan, said the FBI's failure to turn over evidence to the defense team was "embarrassing" and "totally unacceptable."

McVeigh's attorney, Rob Nigh, met with his client at the prison in Terre Haute Friday morning to discuss possible options. McVeigh's father, William McVeigh, told CNN, "It all depends on what Timothy wants to do."

McVeigh, 33, a decorated Gulf War Army veteran, admitted in a recently published biography that he was responsible for the bombing. He earlier waived his appeals, telling his attorneys he would rather be put to death than spend his life in prison.

Richard Burr, a death penalty specialist who helped defend McVeigh and is a consultant for his legal team, told CNN Friday a stay would not require a court order because the execution was not court-ordered. The U.S. Bureau of Prisons would make any decision on a delay, he said.

"The government is fully in charge of what happens," Burr said. "It ought to withdraw the execution date ... Its hands are not tied by anything Tim McVeigh wishes. He cannot make them kill him."

Stephen Jones, McVeigh's former trial attorney, predicted the release of the documents would not do anything to exonerate McVeigh.

"There's not much [McVeigh] can accomplish, because unfortunately, against his lawyers' advice, he went public and said, 'I did it,'" Jones told CNN. "Once he says that, then it's kind of hard for him to come back and say, 'Well, these documents may exonerate me,' because he's pulled the rug out from under that argument."

Jones has long contended McVeigh is part of a larger conspiracy and stated his guilt to protect others. "Not everybody is locked up," he told CNN Friday. "There are others still out there."

The U.S. attorney in Denver informed McVeigh's defense team Tuesday of what the FBI called an oversight it only recently discovered -- that investigative documents, including reports on FBI interviews, photographs, letters and tapes were withheld from McVeigh's defense.

The materials included more than 3,100 pages of documents, audiotapes and videotapes.

One source familiar with the case said the mistakenly withheld documents also concern Nichols and Michael Fortier. The source insisted the documents contained no evidence that would have exonerated them.

McVeigh, Nichols and Fortier served together in the Army.

Nichols was convicted of helping to build the bomb and prepare for the attack. He was sentenced to life in prison and still faces state charges.

Fortier, who knew of the bombing plan but did not alert authorities, testified against McVeigh. He is serving a 12-year federal sentence for his role.

The Justice Department said Thursday it had turned over the materials to McVeigh's attorneys and asked to be notified if they believe any of them create doubt about McVeigh's guilt. FBI and Justice Department officials said the materials contained "nothing that could put McVeigh's conviction in jeopardy."

But Burr said a stay was required simply to sort through the various documents. "If there are witnesses the government interviewed who suggest other people were involved or that Tim McVeigh was not involved, those are critical matters that would have to be investigated."

Ryan said prosecutors too would scrutinize the material.

"One of the things that has been said over and over again since yesterday afternoon is that the government failed to turn these materials over to the defense," he said. "The point has not been made that the FBI didn't turn these materials over to the prosecution either. These are not materials we're familiar with either."

Justice Department officials said an FBI archivist discovered the documents --which included some of the original notes of FBI investigators that were never transcribed -- as the materials in the case were compiled, and that it was still unclear how the papers were missed.

Jones said McVeigh was probably elated by the document glitch. "There is egg on the face of the FBI this morning," he said.

CNN Correspondent Charles Bierbauer in Washington, Susan Candiotti and Gina London in Denver and Justice Department Producer Terry Frieden contributed to this report.



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RELATED SITES:
Federal Bureau of Investigation
U.S. Department of Justice
The Bureau of Alcohol, Tobacco and Firearms
Oklahoma State Government
Death Penalty Information Center
US Federal Bureau of Prisons

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