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CNN BREAKING NEWS

FBI Unearths Unseen Files on McVeigh

Aired May 10, 2001 - 19:11   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
WILLOW BAY, CNN ANCHOR: We're going to go now to Susan Candiotti, who is on the telephone. She has some breaking news for us from Washington.

Go ahead, Susan.

SUSAN CANDIOTTI, CNN CORRESPONDENT: Willow, as you may have already heard, it turns out that the FBI has said, according to sources familiar with the investigation, discovered through one of its archivists, regarding the Timothy McVeigh Investigation and trial, that they had additional information collected from various FBI field offices around the United States that were involved in the investigation, that some of that information never made it into the hands of defense attorneys for now-convicted Oklahoma City bomber, Timothy McVeigh.

The FBI admits now that it found some original items. However, sources familiar with that information insist that in it there is -- quote -- "nothing of major significance." Sources maintain that the information is redundant, and used as an example people who, for example, more than one person who saw -- alleged to have seen Timothy McVeigh in a particular location, for example.

Or giving another example: FBI agents who took notes and filled out a form, which is then filled out summarizing the information to the defense. But in some instances the original notes had not been turned over. Once this was discovered, the FBI notified the justice department lawyer in charge of this, and in turn, the information was passed on to Timothy McVeigh's defense attorneys.

So far we have no information, no reaction from Timothy McVeigh's lead attorney, Rob Nigh, in Oklahoma. As to whether he will file anything with the court -- so far nothing has been filed -- to see whether he can be granted a stay of execution based on this new information.

BAY: So, Susan, it seems -- it appears, from what you're telling us, as if the FBI detailed some of this information, but did they detail any reasons why it never made it to McVeigh's defense attorneys?

CANDIOTTI: The explanation is more or less that it was an oversight. In many instances -- that they had the information but sometimes, for example, the example that I gave you, notes that were never turned over. But they took the notes and made a summary of the notes, and those were turned over to the defense attorneys.

But oftentimes in a trial, unless the defense has reason to suspect information from these summaries -- unless they question them, then they don't normally request from the court to ask for the original notes of an FBI agent. That's just one example.

Now the question is whether there's any -- could be any exculpatory evidence contained in information that the defense attorneys have never seen. That, apparently is what is being decided now by the defense attorneys. and they must decide, in effect, but they have to have agreement from their client, Timothy McVeigh, as to whether they want -- whether he wants his attorneys to move -- to attempt to get a stay of execution.

BAY: Susan, did you -- do you have any sense as to why this is just coming to light right now? Any sense of the timing of this?

CANDIOTTI: The timing is all very recent. The letter to the defense attorneys just went out yesterday, and evidently it has been within recent days or weeks. And it would appear, according to one of the sources that I spoke with, that it was in the exercise of putting together all of the case files on this particular McVeigh trial and collecting all the information from all the field offices to archive it. That's when the discovery was made.

BAY: So it was during the process of basically pulling all this together and making a catalog of it that these original items, as the FBI is calling them, were unearthed.

CANDIOTTI: That's what sources say. That's correct.

BAY: And that normally a defense attorney would accept the summaries, and if not, then choose to ask for those original items?

CANDIOTTI: That's correct. Under normal circumstances, defense attorneys work from summaries. But remember, Willow, that's just one example of this information that authorities defend as being redundant information. That's just one thing. There are other items as well.

That was turned over now to the defense attorneys and we do not have access -- do not yet have information on what some of that other information, alleged evidence, might be. So until we can talk to the defense attorneys about this to find out how they attempt to pursue this information, well, at that time we'll know more.

BAY: Susan Candiotti, thank you for bringing us this news. And of course, you'll keep us posted should more details come in. We're going to go now to our senior legal analyst, Greta Van Susteren.

Greta, Susan just told us that the FBI has said that there are -- what they called -- "original items" that have been discovered in the process of collecting and documenting all of the details of this case that they have unearthed. Does this tell us anymore? Does this add another piece to this puzzle?

GRETA VAN SUSTEREN, CNN LEGAL ANALYST: Well, let me put myself in the shoes of the lawyers on behalf of Timothy McVeigh. Even if I couldn't get to Terra Haute in the next 24 or 48 hours to find out exactly what he wants me to do, what would I do as a defense lawyer? Say: "Oh, well, so what, I didn't look at these original documents. I'll just let it go"?

I mean, he can't do that. These defense lawyers have to look at these documents. They have to be satisfied themselves that this would not have in any way impaired the verdict against their client. So these lawyers have to go through these documents. They cannot accept the judgment of the justice department saying that these documents are not material. They have an affirmative obligation of a first-hand investigation of these documents. It's hugely important to the defense.

It may turn out that they are totally irrelevant, but at this juncture, these lawyers have absolutely no choice be to make sure they pour over every single word of every document, because they cannot let their client go to a lethal injection having looked the other way.

BAY: But, Greta, I'm curious. Susan described a scenario in which defense attorneys will oftentimes rely on these summaries without asking for the original items. Is that the case?

VAN SUSTEREN: That is indeed true sometimes, Willow. But when your client is about four days away from dying and you have a mechanism by which you can save your client, relying on government summaries is not a practice that any defense lawyer would encourage who is worth his salt. But indeed, there are cases in which you rely on summaries. I mean, even in trials both sides agree to summaries, oftentimes, to present to a jury for consideration.

But believe me, on the eve of something so final as a lethal injection, and knowing these defense lawyers -- I know how hard these prosecutors worked on these cases, which is perhaps why I come to this story with no sense that anyone did anything sinister -- these prosecutors did a really good job. And knowing these defense lawyers, I suspect these defense lawyers are going to pour through every single document by themselves.

BAY: And knowing what we do about how this happened, that these original items were unearthed during the process of, as I gather, creating some sort of archive for this case -- is that a typical process? And do things from time to time turn up as a result of this process?

VAN SUSTEREN: Well, this is a bigger case than almost any criminal case I've seen, and when these documents show up -- and the prosecution in a routine case says, you know, they just showed up. I mean, even, look at the billing records for Hillary Rodham Clinton when they showed up at the -- in the family residence at the White House, the Republicans in the city were rolling their eyes. You know, when documents suddenly surface out of nowhere. So, I mean people are always suspicious.

But sometimes documents do just sort of surface. And I can tell you that in a case as important as this, the prosecutors want to be extremely careful that they complied with all the rules. But the truth is that when you have a case this large, things like this can happen. Now, we don't know if it was an accident, we don't know if it was deliberate, but when you have so many documents it does not surprise me that it happens. And you know, at least, from a legal standpoint is that I'm delighted to see the Justice Department and the FBI turn them over a couple days before the execution. I would have rather seen it done a couple years ago though.

BAY: Greta, at this point, obviously the defense attorneys are trying to get some sense if what this information is but they also, as you have pointed out, they also will be consulting with their client. But at this point does it matter that Timothy McVeigh has already made it clear that he wants to and is prepared to die?

VAN SUSTEREN: It doesn't right now. Here's one scenario. The lawyers know that the ultimate decision is made by the client, Timothy McVeigh. But they also know they want to have time to talk to him. They won't just fly out there tonight, because they have not seen the documents themselves.

So, it would not be unusual for them to go to the judge and say, Judge, we have not spoken to our client. We can not let our client die Wednesday, 7:00 a.m. Indiana time by lethal injection until we have gone through these documents. We would like a chance to go through these documents. Then we will take the information we have, and maybe the documents to our client in Indiana.

We will consult with him. And at that time he will give us marching orders, whether or not we should seek some sort of order or whether or not we should simply ignore it and the judge can then reset an execution date. That would not be an unusual scenario.

BAY: Greta Van Susteren, thank you very much. As CNN learns more we will bring it to you and MONEYLINE will continue right after this.

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