Behind McVeigh's bid to stay the execution

What can Timothy McVeigh's defense team do with 4,449 pages of withheld evidence? In all likelihood, buy some time.

More time is exactly what Mr. McVeigh's lawyers are seeking this week in Denver, when they ask US District Judge Richard Matsch for a stay of execution for the Oklahoma City bomber. The expectation is that they would then use that time - perhaps as much as several months - to try to prove their assertion that the FBI deliberately withheld information that would have benefited the defense in the original trial.

Many legal analysts expect Judge Matsch, who presided over the McVeigh trial in 1997, will grant the stay of execution, perhaps as soon as a hearing ends on Wednesday. McVeigh's execution is currently set for June 11.

"Judge Matsch recognizes that an extreme thing has happened: A conviction and death sentence were imposed, and only at the eleventh hour does it come to light that 4,000 pages of documents were kept from the defense," says Scott Robinson, a criminal defense lawyer here. "While this may not be significant enough to change the sentence, it at least gives us cause for pause."

Of course, McVeigh's team would like to accomplish more than delay the inevitable. To that end, it is arguing that precedent exists for a conviction and sentence to be set aside, provided they can show that the trial was compromised by fraud.

The defense strategy

It's an unusual legal tactic. Vacating a verdict ordinarily requires that newly discovered evidence be sufficient to have led to a different outcome in a case. In using the "fraud on the court" approach, McVeigh's lawyers are hoping to find a way to circumvent that rule.

For the theory to succeed, though, there must be evidence of a deliberate effort to defraud the court, says Mr. Robinson. It's not enough to show that the government withheld evidence by mistake. Experts say it's unlikely that McVeigh's lawyers ultimately can meet this standard.

For its part, the US Justice Department flatly denies the fraud charges. Attorney General John Ashcroft has said that the FBI has produced "every relevant document" and that none raises any doubt about McVeigh's guilt. "Based on the overwhelming evidence and McVeigh's own admissions, we know he is responsible for this crime," he said. "We will continue to pursue justice by seeking to carry out the sentence that was determined by a jury."

McVeigh's original execution date of May 16 was postponed last month, after the Justice Department discovered thousands of pages of evidence that should been handed over before trial. Since then, the government has produced another 1,300 pages of documents and 11 CDs containing 16 hours of audio and video recordings. New material had turned up as recently as last Wednesday.

In court papers filed last week, McVeigh's lawyers charged that the FBI continues to withhold evidence. Their documents also quote four former FBI agents, who suggest that suppression of evidence may have been at play.

The ear of the judge

For McVeigh to actually win a new trial or sentencing hearing, his lawyers would have to persuade Matsch that the FBI intentionally withheld evidence to undermine McVeigh's defense. Such a finding would render the verdict and sentence void. On the other hand, if Matsch finds the FBI's omission was simply a result of human error, the verdict and sentence would stand.

"McVeigh's lawyers are saying that they think they will be able to prove a fraud on the court if they are given enough time and information," says Andrew Cohen, a legal analyst here. But, he adds, "these sorts of fraud arguments are almost never successful," and it appears the FBI's misstep is no more than "garden-variety bureaucratic incompetence."

Yet debate is sure to continue over how a glitch of such magnitude occurred in such a significant investigation. Robinson, although not convinced the error was intentional, considers the FBI more than just negligent.

"There was an attitude that recognized the foibles of the [record-keeping] system and accepted it with a shrug of the shoulders," he says.

It's not only about McVeigh

McVeigh, who publicly confessed to the bombing after his conviction, is hardly a sympathetic figure. But Robinson sees the issue as only tangentially about him: "Timothy McVeigh is the least important part of the situation, because the sanctity and fairness of the system are what matter most."

And under the system, the prosecution has the burden of proving guilt in court during a fair trial. Nathan Chambers, McVeigh's attorney in Denver, is as unapologetic as he is blunt on that point: "The Constitution is supposed to apply to everyone. We'll see if it does."

The irony of all this is impossible to overlook. The FBI blunder is the sort of move McVeigh himself might have orchestrated to dramatize his view that the government is teeming with corruption and misconduct. "Talk about being handed your rhetoric on a platter," says Robinson. "This gives him [McVeigh] a platform so he can spout his antigovernment rhetoric in an effort to once again proclaim himself a martyr."

(c) Copyright 2001. The Christian Science Monitor