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Lawyers Cite Publicity, Inflammatory Evidence in McVeigh Appeal

By Tom Kenworthy
Washington Post Staff Writer
Saturday, January 17, 1998; Page A08

DENVER, Jan. 16—Timothy J. McVeigh's attorneys have appealed his conviction on murder and conspiracy charges in the Oklahoma City bombing, citing pretrial publicity, a judge's refusal to entertain evidence linking others to the bombing and "inflammatory" emotional evidence from surviving victims.

The 226-page appeal, made public late this afternoon by the 10th U.S. Circuit Court of Appeals, alleges a series of errors by District Court Judge Richard P. Matsch during the 11-week trial last spring that the attorneys said prevented McVeigh from receiving a fair trial.

McVeigh, accused of bombing the Alfred P. Murrah Federal Building on April 19, 1995, was convicted June 2 of all 11 counts relating to the bombing, which killed 168 people. He was sentenced to die by the same jury June 13.

It was widely expected that his lawyers would appeal. Government prosecutors have one month to respond.

McVeigh's attorneys argued in the appeal that it was impossible for the jury to remain impartial because of what they described as widespread dissemination of "incendiary" newspaper and magazine accounts of purported "confessions" by McVeigh shortly before the trial and the court's "rigid" insistence that the trial proceed on schedule despite the publicity.

The original account of the purported confession by McVeigh to his attorneys appeared on the home page of the Dallas Morning News.

A second, somewhat different account appeared later in Playboy Magazine, and both articles were widely cited by other news outlets.

"There simply was no way to be a resident of the Denver Division of the District of Colorado in March of 1997 and avoid the reports that Mr. McVeigh had confessed to his attorneys," the appeal argues.

McVeigh's attorneys, led by Robert Nigh Jr., also claim that McVeigh was denied a fair trial because Matsch did not permit testimony that anti-government extremists at an Oklahoma compound known as Elohim City may have been involved in the bombing. Matsch denied attempts by McVeigh's lawyers to call a former government informant, Carol Howe, who the defense contends would have testified that residents of Elohim City -- including two men who matched composite drawings of bombing suspects -- "were preparing for a war with the government."

Also in their appeal, the lawyers assert:

That despite admonishments from Matsch, members of the McVeigh jury discussed the case among themselves during the evidence presentation phase, and that one juror said, "I think we all know what the verdict should be";

That Matsch erred in not giving the jury the option of convicting McVeigh of second-degree murder in the deaths of the eight federal law enforcement officers killed in the explosion;

That by allowing extensive testimony during the guilt phase of the trial by surviving victims of the explosion, the court "invited massive emotions -- sympathy for the victims and rage toward the accused -- into the guilt determination process" and thereby prejudiced the jury;

That during the penalty phase of the trial, attorneys were not permitted to offer as mitigating testimony evidence that others besides McVeigh and his co-defendant Terry L. Nichols may have been involved in the bombing.

© Copyright 1998 The Washington Post Company

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