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John Doe No. 2, the mystery man of the Oklahoma City bombing, is back to haunt the government. As Attorney General John Ashcroft announced on Friday a one-month delay in Timothy McVeigh's execution, both sides in the famous domestic terrorism case considered how newly revealed FBI evidence could affect McVeigh's fate.
Included in the more than 3,100 pages of evidence the government turned over to his lawyers earlier this week are FBI interviews regarding purported accomplices who were never found. For several years, investigators have insisted that such alleged John Doe 2 rumors were bogus; they say only McVeigh and his former Army buddy, Terry Nichols, were responsible for the blast that killed 168 people on April 19, 1995.
Ashcroft held to that line. He insisted the new evidence wouldn't affect the case, even as he postponed the execution to June 11 and ordered the Justice Department's inspector general to investigate what he called "the belated delivery" of the evidence.
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"These documents do not contradict the jury's verdict in the case," Ashcroft said at the Washington news conference. "However, I believe the attorney general has a more important duty than the prosecution of any single case, as painful as that may be to our nation. It is my responsibility to promote the sanctity of the rule of law, and justice."
But one of McVeigh's attorneys told NEWSWEEK that the newly revealed evidence ought to prompt a new sentencing trial for McVeigh, who admitted in a recently published book that he orchestrated and carried out the bombing of the Alfred P. Murrah Federal Building. "If the truth is that Tim McVeigh-despite his admissions-is not really as culpable as he says he is, then we ought to know that," says Dick Burr, who helped represent McVeigh at trial and now consults with his appellate attorneys. "His trial may need to be redone in light of that, or at least a new sentencing trial ought to happen."
The best argument for such a step, Burr says, is Nichols's trial. "In that case, the evidence showed that Tim McVeigh was the more culpable actor and that was enough to convince Terry Nichols's jury that he shouldn't be sentenced to death," says Burr. "If evidence came out that in fact showed credibly that Tim McVeigh was not as culpable as somebody else, then a jury might well have decided that he shouldn't be sentenced to death either."
One key unanswered question as of Friday afternoon was what McVeigh wants to do during his 30-day reprieve. Up to now, he has rejected his attorneys' advice and ordered them not to further appeal his case. "At some point he just didn't have the resolve to keep going in the face of the enormous odds against him," says Burr. Asked if the new evidence might change McVeigh's view, Burr replied: "He tries to be analytical. I'm sure he'll at least give this some thought."
Justice Department officials, meanwhile, were furious that the FBI didn't turn over the evidence earlier. The documents were discovered by an FBI archivist who was compiling a file of all the material gathered in the government's massive OKBOMB investigation. "We told the FBI to send a teletype out to all their offices: Get everything. They said they did," one Justice Department source says. "For whatever reason, these were not forwarded to the command post."
Like Ashcroft, the source contended that the new evidence was very unlikely to affect the case against McVeigh. "The chances that there's anything novel in this is infinitesimal," he says.
Defense attorneys, of course, weren't ready to concede that point. The issue of whether the government withheld evidence in the OKBOMB investigation is not new. Late last year, a federal appellate court turned down Nichols's request for a new trial on the grounds that the government failed to turn over witness-interview reports. The court ruled that the evidence would not have changed the outcome of Nichols's trial. On Friday, his attorneys reportedly planned to refile an appeal with the U.S. Supreme Court in light of the newly revealed evidence.
Some family members of McVeigh's victims decried the delay. But Burr says the larger issue is assuring that all defendants receive a fair trial. "The public is bound to think, 'Why does this matter in light of what Tim McVeigh has said since the trial in the book?'" says Burr. "At another level, people realize that when the government doesn't play by the rules, it's serious.... It offends everybody's notion of fairness. And that extends even to Tim McVeigh."
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