Ashcroft postpones McVeigh's execution

THE BALTIMORE SUN

WASHINGTON - Attorney General John D. Ashcroft granted Timothy J. McVeigh a stay of execution yesterday until June 11 to allow his attorneys time to sift through thousands of pages of documents the FBI failed to turn over before McVeigh's 1997 trial for the Oklahoma City bombing.

Maintaining that nothing in the documents would contradict the jury's finding of guilt or McVeigh's admission of responsibility, Ashcroft said he nonetheless felt compelled out of respect "for the rule of law" to postpone what would be the first federal execution since 1963.

"If any questions or doubts remain about this case, it would cast a permanent cloud over justice," Ashcroft said at an afternoon news conference.

"Our system of justice requires basic fairness, evenhandedness and dispassionate evaluation of the evidence and the facts."

Ashcroft said he had rescheduled McVeigh's execution at a federal penitentiary in Terre Haute, Ind., from May 16 to June 11 - a 26-day delay. He also said he had ordered the inspector general of the Department of Justice to conduct a full investigation into what is the latest in a series of embarrassing foul-ups by the FBI.

His decision to postpone the execution threw into disarray plans for a historic, emotional event. Aside from the 1,600 reporters expected to converge on Terre Haute, several hundred survivors and victims' relatives had been preparing to go to Oklahoma City, Okla., to watch the execution on closed-circuit television.

Many of them expressed disbelief and anger when told that the execution would be delayed.

"We needed this death penalty," said Aren Almon Kok, whose baby daughter came to symbolize the 1995 blast through a photograph of her in the arms of a firefighter. "For someone to make this mistake - to find them [the documents] less than a week before he dies - is unbelievably unfair."

Speaking to reporters later in the day, President Bush said he supported Ashcroft's decision. Though he acknowledged that the delay would "create some frustration" for survivors and victims' relatives, he said it was important to ensure that the administration of the death penalty be above reproach.

'Solemn obligation'

"We have a solemn obligation to make sure that the case has been handled in full accordance with all the guarantees of our Constitution," Bush said. "It is very important for our country to make sure that in death penalty cases, people are treated fairly."

McVeigh was convicted and sentenced to death in 1997 for the bombing of the federal office building in Oklahoma City on April 19, 1995.

The blast, which killed 168 people and injured hundreds more, was the deadliest terrorist attack on American soil.

After filing an initial challenge to his conviction, McVeigh waived his right to further appeals and resigned himself to being executed. He also confessed to the bombing in a recently published book written by two journalists.

'Keeping options open'

But the discovery of the documents, coupled with the delay of his execution, raised the possibility that he might renew his legal challenges. Although his attorneys said they would have to review the documents before a decision was reached, they made clear that McVeigh had not ruled out a new round of appeals.

"Mr. McVeigh is very resilient and capable of evaluating new information and making decisions based on that information," his attorney, Rob Nigh, told reporters outside the federal prison in Terre Haute where McVeigh is being held. "He is keeping all of his options open."

Lawyers for co-defendant Terry Nichols said they planned to file a new appeal with the Supreme Court on behalf of their client.

Nichols was convicted of conspiracy and involuntary manslaughter and sentenced to life in prison. He also faces state charges of capital murder, and prosecutors have said they will seek the death penalty.

Effect on trial denied

Yesterday's developments came one day after it was reported that the FBI had inadvertently withheld 3,135 pages of investigative documents and other evidence from McVeigh's defense attorneys.

The items were reportedly found this week by FBI archivists during a manual search of records relating to the deadly blast. They were apparently missed during searches of computerized files, in part because of the bureau's outdated computer records system.

The materials, which have since been delivered to defense attorneys, include witness interviews, reports and correspondence, as well as photographs and tapes.

Justice Department officials said none of the documents, if released earlier, would have changed the outcome of McVeigh's trial, a point Ashcroft emphasized several times during his news conference. The officials also maintained that many of the documents were duplicates of records that the defense had already been given.

But they acknowledged that at least some of the records relate to interviews about another possible participant in the attack - "John Doe No. 2" - who was described by several witnesses after the bombing but whose existence was never established.

Justice Department officials also conceded that McVeigh's attorneys were entitled to the documents under an agreement reached by the parties before trial.

'Assurances were hollow'

"I can't tell you the number of times we were assured that we had every document we were entitled to under the agreement," said defense attorney Nigh. "And those assurances were hollow."

Because so many documents were withheld from the defense, it was difficult to determine yesterday whether any of them might provide the basis for an appeal.

To obtain a new trial or sentencing hearing, McVeigh has to show that the government withheld evidence that casts doubt on his guilt. He also has to show a "reasonable probability" that the outcome would have been different had the evidence not been withheld.

Criminal defense experts said that although that burden is not impossible to meet, it is very difficult - especially in a case like McVeigh's, where the evidence against the defendant is strong. They said McVeigh's lawyers would be looking for something in the documents that points to a different suspect, undermines the credibility of government agents and witnesses, or suggests that the entire investigation was shoddy.

'Sort of a bombshell'

"There has to be something that's sort of a bombshell," said Robert Luskin, a criminal defense attorney who teaches law at the University of Virginia. "In all likelihood, this will be much more likely to fuel conspiracy theories than it will be to undermine the legal validity of the verdict."

Luskin said that McVeigh's subsequent admission of guilt would have no bearing on whether a court granted him a new trial, since the question is whether his first trial was fair. But if there was a second trial, he said, prosecutors would be able to introduce the confession as evidence and perhaps call as witnesses the two journalists who wrote the book.

While the immediate fallout of yesterday's announcement revolved around McVeigh, long-term consequences may center on the FBI. The bureau's mishandling of the McVeigh documents is the most recent evidence of problems at the nation's lead investigative agency.

This year, an FBI agent was charged with spying for Moscow during 15 years of his 25-year career. Last year, the agency was criticized for the flawed espionage investigation of Wen Ho Lee, a Chinese-American scientist at the Los Alamos National Laboratory. And several years ago, the department's crime laboratory was investigated for mishandling evidence in high-profile cases such as the 1993 World Trade Center bombing and the Oklahoma City blast.

The bureau has also been criticized repeatedly for its role in the fiery conclusion of the standoff at the Branch Davidian compound in Waco, Texas, in 1993. A special counsel, John C. Danforth, in a November 2000 report, absolved the government of wrongdoing in the siege. McVeigh has said the government's handling of the standoff motivated him to carry out the Oklahoma City attack.

'Image instead of product'

Asked whether the latest incident had shaken his confidence in the FBI, Ashcroft sidestepped the question, saying only that he planned a full investigation of the matter.

But some congressional leaders were more critical.

"The problem is an FBI culture that's focused on image instead of product," said Sen. Charles E. Grassley, an Iowa Republican and a member of the Senate Judiciary Committee.

"And the casualty in this case, as with the others, is the public's confidence in the FBI."

The Associated Press contributed to this article.

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