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Lawyer: FBI document might have helped Nichols

Terry Nichols  

DENVER, Colorado (CNN) -- The federal prosecutor in the trial of Oklahoma City bombing co-conspirator Terry Nichols says he might not have challenged the credibility of a defense witness during trial if he had reviewed an FBI document that has subsequently been located.

The New York Times reported Sunday that among the documents recently located and turned over to attorneys in the case was a "lead sheet," which documented a call by computer technician Morris Kuper two days after the April 19, 1995, blast that destroyed the Alfred P. Murrah Federal Building.

Kuper told the FBI he saw convicted bomber Timothy McVeigh and another dark-haired, muscular man in a parking lot near the Murrah building about an hour before the blast, standing near a car similar to one McVeigh was driving when he was stopped after the bombing by a highway patrolman about 80 miles from Oklahoma City.

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He made the call the same day McVeigh was seen on national TV after being arrested for the bombing. But Kuper wasn't actually interviewed by the FBI until four months later, and that interview was part of a routine sweep of businesses in the bombing area, not because of his phone call, according to a source familiar with Kuper's documents.

During Nichols' trial, when Kuper took the stand as a defense witness, prosecutor Pat Ryan challenged his credibility by asking him why he had waited four months to come forward. Kuper responded that he called the FBI two days after the bombing but no one called him back.

Kuper was one of several witnesses called by Nichols' attorneys to place McVeigh with another possible suspect, who has come to be known as John Doe No. 2.

Ryan told CNN that while he does not remember Kuper specifically, he now believes -- after recently briefly re-reading part of a transcript of the trial -- that he must not have known of Kuper's initial call. He said he would not have attempted to question Kuper's credibility had he seen the lead sheet.

"Never, as a lawyer, a prosecutor, or a human being, would I suggest someone was not telling the truth if I had information to the contrary," said Ryan, who is now in private practice.

He said he did not routinely review lead sheets; he would normally prepare for cross-examinations of witnesses by reviewing FBI summaries of their interviews, known in FBI parlance as a "302."

In court, Ryan did question inconsistencies in Kuper's description of the two men. During his cross-examination, Ryan said Kuper initially described the second man as muscular but at another point said McVeigh was the more muscular of the two.

A source familiar with Kuper's documents says he was first interviewed not because of the lead sheet -- in which Kuper suggested the FBI check surveillance cameras in the lots for the public library and Southwestern Bell -- but because of a sweep of businesses in the bombing area. At the time, the FBI was looking for any cameras that captured activity before the bombing and interviewing employees of neighboring businesses.

Kuper was interviewed at least twice, in August and later in October. The 302s of those interviews were turned over to defense attorneys and prosecutors prior to the trials of McVeigh and Nichols.

McVeigh's scheduled execution was postponed earlier this month after the FBI revealed it had located documents in the case that had never been turned over to prosecutors and defense attorneys. The execution has been rescheduled for June 11.

Attorneys for McVeigh have declined to comment on the nature of any of the documents now under review. The FBI has insisted repeatedly that none of the new material creates any reasonable doubt about the convictions of McVeigh and Nichols.

John Doe No. 2 sightings have been rejected by appeals courts considering Nichols' conviction and life sentence as irrelevant to evidence concerning his guilt.

McVeigh defense attorney Rob Nigh has said he does not have enough time to review all materials before the scheduled execution.

The defense could go to court this week or next to ask U.S. District Court Judge Richard Matsch in Denver, the trial judge, for additional time. Nigh would not say, however, whether he intends to do so. He has said repeatedly it is up to his client to decide what to do.

Attorney General John Ashcroft said last week he will not postpone the execution further.

Later this week, the U.S. Supreme Court is expected to meet privately to consider whether to hear Nichols' latest appeal based on the FBI blunder which postponed McVeigh's execution.


• Federal Bureau of Investigation

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