Appeals End; McVeigh to Die Monday

DENVER â€”  Convicted Oklahoma City bomber Timothy J. McVeigh abruptly dropped all of his legal appeals Thursday and once again said he is ready to die--a decision he made just minutes after learning that a federal appellate court had turned down his request for a stay of execution.

The 33-year-old McVeigh, who for months has maintained that he wanted to die on his terms, instructed his lawyers not to ask the U.S. Supreme Court for any more delays in his death by injection scheduled for Monday morning at the new federal execution facility in Terre Haute, Ind.

His decision all but brings to an end the largest and most expensive criminal case in U.S. history, and opens the door for the federal government to once again begin executing prisoners for the first time in 38 years.

McVeigh’s attorneys had mounted a furious appeal on his behalf, hoping newly discovered FBI files might show that others helped him bomb the Alfred P. Murrah Federal Building. They argued that the discovery of the new documents was a “fraud upon the court,� suggesting their client was denied a fair trial because all the government material was not turned over to the defense as required.

But their efforts ended with McVeigh’s decision Thursday.

McVeigh began shipping his personal belongings to his family in western New York on Thursday, his attorneys said, and was preparing to telephone relatives and friends with his final farewells.

“Mr. McVeigh does not want to proceed any further in legal actions in order to try to stop his execution,� said his lawyer Rob Nigh, straining not to cry as he spoke in front of the elegant U.S. 10th Circuit Court of Appeals building in downtown Denver.

Nigh, who has represented McVeigh longer than any of the dozens of lawyers who have defended him since the April 19, 1995, bombing, said McVeigh also does not want his attorneys to file a clemency appeal with President Bush.

“I think his resolve was clear. He takes this much more in stride than probably his lawyers do, most certainly,� Nigh said. “He has family and friends that he must say his goodbyes to. The kind of introspection and psychological preparation he has to go through only he can know.�

Another member of the McVeigh defense team, Richard Burr, a vigorous opponent of the death penalty, also struggled on the courthouse steps in trying to describe the difficulties in representing a man who has become an object of hatred for millions of Americans.

The normally soft-spoken Burr grew angry as he vented his frustration over McVeigh’s refusal to help his legal team find others who might have been involved in the bombing.

“We represent human beings. We don’t represent defendants,� Burr said. “We represent people who are complex, emotional beings, who have relationships with others, who care about others and who are not necessarily willing to give them up.�

But while the defense was clearly shaken, the government applauded the appellate court’s ruling and said it showed that in the end, McVeigh will be appropriately punished.

“Today’s ruling by the 10th Circuit Court of Appeals is a ruling in favor of justice,� Atty. Gen. John Ashcroft said in a statement released in Washington. “Timothy McVeigh is responsible for the brutal murder of 168 people, including 19 children, and he will now be brought to justice.�

McVeigh was to have been put to death May 16. But Ashcroft postponed the execution date until Monday to give defense lawyers time to review the more than 4,000 pages of belatedly discovered FBI files.

The government insisted that the files were worthless, extraneous material, of no value to McVeigh’s case. But the defense asked U.S. District Judge Richard P. Matsch, who in 1997 sentenced McVeigh to death, to stay the execution further and hold a hearing to see if the government had not purposely withheld the material to smooth the way for McVeigh’s execution.

However, Matsch ruled on Wednesday against the defense. McVeigh’s lawyers on Thursday morning appealed that decision to the 10th Circuit Court of Appeals.

“All we’re asking for is time to do what we need to do,� Tritico said after filing the legal pleading.

In their brief, the defense lawyers played on the raw emotions brought out by the worst terrorist attack in America, and also laid out their contentions that the FBI purposely hid evidence from the defense that might have helped McVeigh’s case.

“This case tests us as people . . . in a system bound to the ideals of justice,� they told the three-judge panel. “It is extremely hard not to be improperly influenced by the immense suffering and agony at the heart of this case.�

They also asked the appellate court to order Matsch to hold hearings into whether the FBI intentionally shelved the more than 4,000 pages of new material, and cited a statement from one former agent, Dan Vogel of the Oklahoma City field office, who said that had he withheld documents in this manner he “would have been prosecuted for obstruction of justice.�

They argued that the FBI had conducted a “scheme to suppress evidence� in the case that showed others were involved in the bombing beyond McVeigh and his convicted collaborator, Terry L. Nichols, who received life in prison with no parole.

The defense said it had had but three weeks to read the files just turned over by the government, and they needed more time to assess their worth.

The lawyers asserted that “it is reasonably likely� they could have shown that the FBI suppressed evidence that would have established “both a fraud on the court . . . and a meritorious claim for relief from the death sentence.�

They said, for instance, that the new material suggests members of a far-right, religious compound at Elohim City, Okla., might have assisted McVeigh.

“The evidence withheld by the government until now included precisely the type of information that may have allowed Mr. McVeigh to establish a connection� between the bombing and Elohim City, his lawyers said.

“An FBI insert report generated on March 13, 1997, indicated that a former member of the ‘Arizona Patriots’ [militia] purported to have knowledge of the participants in the bombing, including those in Elohim City.

“He also indicated an informant had warned [the Bureau of Alcohol, Tobacco and Firearms] three weeks prior to the bombing.�

The lawyers also said that an “entirely different witness� provided information on the day of the bombing that Dennis Mahon, a white supremacist from Tulsa, Okla., “was a participant in the bombing.�

Neither Mahon nor any members of the Arizona Patriots have been charged in the bombing. The government insists to this day that only McVeigh and Nichols conspired to plan and build the bomb, and that McVeigh alone carried out the attack.

But the appellate court, in a terse, seven-page ruling, turned McVeigh’s lawyers down.

“McVeigh has utterly failed to demonstrate substantial grounds upon which relief might be granted,� the appellate judges wrote. “There is no basis upon which to grant McVeigh’s emergency application for stay of execution.�

Minutes later, the defense lawyers advised McVeigh by telephone of the ruling, and he immediately told them to end it there.

“If we were to pursue remedies in the Supreme Court now there would be more uncertainty and he only really has a few more days to live,� Nigh said.

Then, speaking in general terms, he said, “If you continue to pursue your legal options, you have placed additional turmoil into those final hours that perhaps you can use to try to create some peace.�

At the prison in Terre Haute, even before McVeigh had said he wished to end his life, Bureau of Prisons officials said they planned to move him from death row to a holding cell at the special execution facility--possibly as early as today.

McVeigh refused to allow his picture to be taken during the transfer process, so prison officials said they would merely release a prison video of the vehicle moving him to the 9-by-14-foot holding cell that includes a toilet, a small metal table and a narrow bed mounted to the wall.

The small, windowless room is just a few steps away from the gurney where, at 7 a.m. local time, McVeigh is to be strapped in and given a lethal injection.

“Everything right now is a go,� said Dan Dunne, the Bureau of Prisons chief spokesman on the execution. “Our focus right now is to ensure that everything related to the execution occurs in an appropriate and professional manner.�

Warden Harley Lappin said McVeigh, who had requested a final meal for the previous execution date, has made a change in that menu, but declined to elaborate.

He said his staff also was testing a closed-circuit television feed that will carry live coverage of the execution to a viewing room in Oklahoma City, where about 300 victims and relatives of the dead have signed up to watch McVeigh breathe his last.

Lappin also announced that the 1,300 inmates in the prison’s general population, along with the other 20 men on death row, will be placed on “lock-down� beginning Sunday evening and continuing until several hours after McVeigh is dead.

The prisoners would miss seeing the telecast of the National Basketball Assn. championship series game--a situation that Lappin acknowledged was not going over well inside the prison walls.