McVeigh coasts on FBI error, but how long?

Thirty days may not be enough to review FBI papers, but a new trial is unlikely.

The case of convicted bomber Timothy McVeigh now hinges on a complicated equation of human disposition and investigative documentation. There are the 3,135 pages of FBI documents. There is federal district Judge Richard Matsch. And there is the mercurial Mr. McVeigh himself.

With all those variables, the case could take any number of turns. But even if the 30-day delay in execution, announced last week by US Attorney General John Ashcroft, is extended, McVeigh's lawyers will still be hard-pressed to show that their client deserves a new trial.

The likelihood of McVeigh getting a new trial is slim, say legal analysts, primarily because the standards his defense team would have to meet are extremely high.

"There has to be something very, very big in those documents, or the judge will probably just issue sanctions against the government," says Jeff Weiner, former president of the National Association of Criminal Defense Lawyers (NACDL).

A longer delay in execution,

though, seems all but certain, if that's the path McVeigh chooses. And the longer the wait stretches out, the more conspiracy theories abound in the realms of the Internet and talk radio, fueled by speculation about what the FBI documents contain.

Mr. Weiner, a defense attorney in Miami, says a 30-day extension is "unreal" - that McVeigh's team can't possibly plow through so much information by then. "We're talking about 3,000 pages' worth of documents."

Despite Mr. Ashcroft's words Friday, the timetable for the review of the documents doesn't actually sit with him, but rather with Judge Matsch. In the end, it is Matsch who will determine how long the defense gets to study the recently discovered documents. It is nearly guaranteed the defense lawyers will ask for an extension if their client chooses to have them examine the new information.

"I simply don't see how a good lawyer would want to be held to that [30-day] window," says Edward Mallet, the current NACDL president. "Good lawyers need more time because good lawyers ... are working on more than one case at a time."

For the lawyers to seek that extra time, however, McVeigh would have to ask his lawyers to proceed - maybe the most unknowable variable of all. One school of thought is that McVeigh, who asked to have the timetable for his own execution stepped up, will wish to ignore the new documents and, in essence, agree that the 30-day extension is enough. But another view is that McVeigh is enjoying the embarrassment the FBI is being put through and will likely drag it out as long as possible.

FBI Director Louis Freeh, testifying before a House panel yesterday, acknowledged the FBI made a "serious error in the handling of the McVeigh case. Meanwhile, Sen. Richard Durbin, an Illinois Democrat, proposed the government create a separate inspector general for the Bureau that would report to the Senate Governmental Affairs Committee.

Despite the FBI's misstep, McVeigh probably will not get a new trial, regardless of what he does. Weiner says his case would have to meet the criteria laid out in Rule 33 of the Federal Rules of Criminal Procedure. According to those criteria, the new evidence discovered would, among other things, have to be material and have to probably produce an acquittal, Weiner says.

One big hurdle in meeting that standard, of course, is McVeigh's own admission that he did bomb the federal building in Oklahoma City in 1995.

Meanwhile, a string of new conspiracy theories around the bombing is unwinding - many of them built on guesses about what is in the documents. Some even speculate that the government hid the papers from the public because they hold contrary evidence.

"The bad thing is the almost immediate reaction from the public that this may have been intentional," says Oliver "Buck" Revell, a retired 30-year veteran of the FBI. "And some of the defense lawyers are out there pushing it. All this does is lead people to believe the kinds of things that motivated McVeigh in the first place."

On the Internet, the Oklahoma City bombing has again become a hot topic on bulletin boards and in chat rooms, where theories run the gamut. Some say the documents hold information on John Doe No. 2 (a suspected McVeigh accomplice) and John Doe No. 3, while others talk about second trucks hidden on military bases. Still others hold that McVeigh himself was a Manchurian Candidate - a patsy brainwashed into the bombing.

Mark Potock of the Southern Poverty Law Center, an organization that tracks the antigovernment militia movement, says that while the discovery of the documents has stirred the pot of such groups, he doesn't expect any new wave of problems from them.

"There is a small 'Hail, McVeigh' crowd out there," he says. "But the militia movement is mostly moving away from him. He's not going to rejuvenate the movement. Timothy McVeigh is awfully hard to sympathize with."

(c) Copyright 2001. The Christian Science Monitor

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