eMediaMillWorks
Thursday, May 31, 2001

Following is the transcript of a statement by attorneys for Timothy McVeigh on his decision to seek a delay of execution.

ROB NIGH, ATTORNEY FOR TIMOTHY MCVEIGH

RICHARD BURR, ATTORNEY FOR TIMOTHY MCVEIGH

NIGH: Good afternoon.

Mr. McVeigh has given us permission to seek a stay of execution on his behalf. This decision was not easy for Mr. McVeigh. He had prepared to die, and he was ready to die on May 16 of 2001. He had previously indicated he preferred death to life in prison without the possibility of release.

It is upon principle Mr. McVeigh has decided to seek court relief, and it is based upon the government's failure to produce evidence in his case. He is convinced that the Department of Justice and the FBI will not otherwise be held to account unless he takes this action.

Mr. McVeigh has asked us to say that he understands and recognizes the impact that his decision may have upon his family, the victims in the Oklahoma City bombing case, the community of Terre Haute and others. His decision in no way stems from a desire to cause these people any additional pain or trauma. It is Mr. McVeigh's belief that this action is necessary in order to promote integrity in the criminal justice system.

Richard Burr, our legal strategist, and I have spoken to Nathan Chambers and Chris Tritiko, Mr. McVeigh's attorneys in Denver, and we have asked them to file the papers on Mr. McVeigh's behalf. Mr. Burr can explain to you the basics of what will be contained in the papers.

BURR: We will be filing shortly an application for stay of execution, which is quite a substantial application. The document that will be filed under seal runs to about 40 pages and has about 300 pages of exhibits to support it. Unfortunately, most of this cannot be made public because it has to do with investigative documents that are required to be kept under seal by court order, but we can describe briefly what this involves.

There is a very long and old doctrine that the Supreme Court has articulated periodically, because it doesn't happen very often, that when a fraud upon the court has been perpetrated by one of the parties to a legal proceeding, any judgment that the court makes is void.

The papers that we file today will be arguing to Judge Matsch that a fraud upon the court has been committed by the federal government in withholding massive numbers of documents from the defense and in continuing to withhold numbers of documents from the defense. We don't know how massive, but we are certain, and if given an opportunity by Judge Matsch, we will prove that there are still critical documents about this investigation being withheld by the FBI.

Some of those documents may well be being kept in other case files, but it is quite clear to us that people have been investigated carefully by the FBI, and they have never produced one piece of paper concerning those people. And we must get to the bottom of this. This proceeding is designed to do that.

Two requests will accompany these papers today. One is for stay of execution pending the disposition of this entire proceeding. And the other is that the court hold an evidentiary hearing where the fraud upon the court can be examined carefully and exposed completely.

QUESTION: Are you just discovering now that people have been investigated that you have no paper on? Isn't that something you should have seen in '97?

BURR: There are some people that we are just now discovering were investigated that we did not know about.

QUESTION: And how did you discover that now (OFF-MIKE)?

BURR: That knowledge comes from the new documents that have come since the middle of May. There are people that we have known about for some time that we had anticipated we would see paper on this time, and there is nothing.

QUESTION: As you are well aware, the Justice Department continues to insist, as well as the FBI, that they have indeed turned over everything to you--that nothing has been withheld. And they're even going so far as to look into old cases investigated by other people that might possibly have something to do with this.

NIGH: Part of our submission today will include a supplement based upon yet another 302 that was produced just yesterday. And I think that when you examine that supplement, you will have additional information concerning whether or not the government produced every witness statement in the case.

QUESTION: You want a stay of execution toward what end? Do you want to do away with the death sentence?

NIGH: Well, certainly we want a stay of execution until it can be determined with certainty by an objective fact-finder what information has been withheld by the FBI and whether it would have an impact upon the integrity of the verdict.

QUESTION: And how long do you think that would take?

NIGH: It's very difficult to predict.

QUESTION: So Mr. Burr, before, your client has admitted that he bombed the federal building, at least to reporters, and he has twice waived his right to further appeals and categorically stated that there was no John Doe number two in his handwritten letter to the Houston Chronicle. What evidence do you have, if any, that these new documents would change the outcome of the conviction or either the sentence? What is your basis for the stay?

BURR: If you will recall, in Terry Nichols' trial, there was a witness who testified about seeing a Ryder truck and four other vehicles at Gary Lake State Fishing Park in Kansas the day before the bombing. One of the vehicles was loaded with many, many bags of what appeared to be fertilizer. That witness was deemed to be credible by the jury, and in interviews after Mr. Nichols' trial many of them said, we decided not to sentence him to death because we believed, on the basis of that one witness' testimony, there were other people involved.

That is a starting point for where we are right now in court. If there were other people involved and the evidence of their involvement is credible, and critically, we can't even make those judgments until the FBI provides all the information they have, then that evidence is something that certainly Tim McVeigh's jury would have wanted to have just as much as Terry Nichols' jury did have.

QUESTION: In the trial phase or in the sentencing phase?

BURR: Because we don't know the extent of what the government knows and has withheld, we don't know what its impact will be. But we are confident that if the evidence comes out as we believe it is there, that there will be some credible evidence that other people were involved and it could have had the same kind of impact on Tim McVeigh's trial as it had in Terry Nichols' trial.

QUESTION: So are you saying that your own client has not been telling the truth when he says that he acted alone and there were no other people involved?

NIGH: A decision that the court will have to make in connection with this will have to be based upon the record of the trial, the evidence presented at trial and the legal papers that were filed in connection with the 2255 which Mr. McVeigh previously filed. And that's what it has to be based upon.

QUESTION: But previously, your own client has stated outside of court that he did, in fact, bomb the Oklahoma City building?

NIGH: There is nothing in the record that Judge Matsch will have to review concerning any statements by Mr. McVeigh.

QUESTION: From what you've seen, do you feel now that your client got a fair trial? From the documents that you've seen that you can't talk about, do you feel he got a fair trial and the trial would have been handled differently given the information you've been receiving? And do you have any confidence when the AG and the FBI says you have everything now?

NIGH: Well, my opinion, of course, is not what matters. It's the opinion of Judge Matsch, in the first instance, that's going to matter in that regard. The FBI was asked apparently on 16 prior occasions to produce every witness statement in connection with the bombing investigation. And apparently on 16 separate occasions, they failed. Based upon that, I have no confidence whatsoever in any assertion that they might make at this point that everything has been produced.

QUESTION: Mr. McVeigh was at one time prepared to die. Is it your goal now to save his life?

BURR: Anybody who faces the death sentence at times during the life of their case has to prepare to die. In fact, the whole process of being on death row is a process of preparing to die. That's what happens to most people in this country who end up on death row.

It is a difficult experience, probably the most difficult experience any human being can go through. He will go through that experience again if he has to. He right now, in keeping with the statement that he's authorized us to make, he right now thinks the most important thing in his life is to help bring integrity to the criminal justice system. And his case has brought an opportunity to do that because of what the FBI has thus far revealed and because of what we believe we can expose they have not revealed. And that right now is paramount for him.

QUESTION: Mr. Burr, what is it that changed his mind? Why, this man who is prepared to die, why has he decided to give you the go-ahead to go through the courts to see if he can live?

BURR: For many years, Tim McVeigh has been deeply concerned about the overreaching of federal law enforcement authorities. When that overreaching became apparent to him in his own case, it overrode other considerations. I think, as he would put it, it caused him to put principle over personal concerns. The personal concerns that led him to decide not to challenge his conviction further have now been overridden by the paramount principle of trying to curb the overreaching of federal law enforcement authorities.

QUESTION: Well, some would continue to argue that he overreached any morals that he might have by blowing up a federal building and killing 100 people. And now he's accusing the government of overreaching its federal authority.

BURR: Well, the test of our system is whether we can provide fairness and integrity for the people who may have done or are accused of doing the worst things we can imagine. If we as a people cannot provide fairness and integrity for those accused of the worst things that humans do, then we can't protect each other. We can't have a compact of trust with each other. And it's that compact of trust that's at stake today.

QUESTION: Are you arguing he is unfairly convicted?

BURR: We hope to be in a position to argue that. Where we are right now is having a considerable amount of evidence that the FBI is still withholding information. What has been turned over and what has not been turned over, together, create a tapestry of what we believe is a fraud on the court perpetrated by the government. That certainly will, if we are allowed by the court to fully explore that, we believe we will then be in a position to argue that he did not get a fair trial and should have a new trial.

QUESTION: What evidence do you have that the FBI hasn't turned over all the documents?

BURR: We can't talk about it specifically, but I can talk about it generically. We have two kinds of information. One is we have investigated and talked to people who credibly, in our view, tell us they talked to the FBI. They gave information to the FBI. And we have never seen that back from the FBI. We have never seen the fruits of their investigation of that information.

The other kind of thing that we have is records from the FBI showing that important information about suspects, for example, was given to them. And we see no--have continued to see no follow-up investigation, even though there are statements and sometimes statements in the press where the FBI has said they have investigated.

So that's the two kinds of clues, generically--again, there are a number of specific examples we can't talk about--but those are the generic ways in which we know that the FBI has still not turned over all the information that they developed--again, not about immaterial, unimportant matters, but about very, very important matters.

QUESTION: But what about your client? Is he now suggesting that there were more people involved than him and Terry Nichols?

NIGH: We don't want to argue the merits of the filing that we're going to make today. That was not our purpose. We wanted to be able to provide you with an indication that Mr. McVeigh does want to proceed and does want to seek a stay of execution and give you an outline of the framework for the pleadings.

QUESTION: But is he changing his story?

NIGH: Of course, what Mr. McVeigh says to us in terms of any of the facts in connection with his case we cannot discuss. It would be improper for us to do so. What we had hoped to do today was to give you all an indication that he does want to seek a stay of execution and to give you the framework for the legal basis upon which we will seek that stay. We appreciate your patience today, and we appreciate your consideration.

Good afternoon. Thank you all very much.