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McVeigh defense requests new execution stay

Jim Manspeaker, a representative of the court, delivers defense team motions to Judge Matsch  

(CNN) -- Attorneys for convicted Oklahoma City bomber Timothy McVeigh claim the U.S. government committed a "fraud on the court" by failing to hand over hundreds of pages of FBI documents before his trial.

McVeigh authorized his attorneys to file a motion Thursday for a stay of his scheduled June 11 execution after meeting for several hours with attorneys Robert Nigh and Richard Burr at the federal penitentiary in Terre Haute, Indiana.

His legal team filed the motion Thursday afternoon at the U.S. District Court in Denver, Colorado. The government has until 5 p.m. (7 p.m. EDT) Monday to provide a written response to the motion.

Attorney General John Ashcroft has cut short a trip to the Netherlands and will return to the United States on Saturday, rather than Monday, Justice Department officials said Thursday. While the Justice Department will not say publicly he is returning due to the developments in the McVeigh case, a department official told CNN that is the reason.

Nigh said that McVeigh had been ready to die on May 16, when he was originally scheduled to be executed for the bombing of the Murrah Federal Building in Oklahoma City, which killed 168 people. He said McVeigh was going forward now because he wanted to "promote the integrity of the criminal justice system."

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McVeigh Petition for Stay of Execution (redacted) (FindLaw) (PDF)

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graphic ON THE SCENE
Roger Cossack: McVeigh motion for execution delay
graphic IN-DEPTH
Execution of Timothy McVeigh
Oklahoma City Bombing
graphic VIDEO
CNN's Gina London reports on Timothy McVeigh's decision to seek a stay of execution (May 31)

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In a press conference, U.S. Attorney General John Ashcroft discusses FBI handling of documents in the McVeigh bombing case (May 24)

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McVeigh files for stay: 'It's a power issue'
graphic ALSO
Defense: Feds violated McVeigh's rights

McVeigh's attorneys say they still don't think the government has handed over all of the documents from its investigation.

"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 they might make at this point that everything has been produced," Nigh said.

Later Thursday, U.S. District Judge Richard Matsch rejected a request from McVeigh's attorneys for a protective order banning the FBI from interfering with its efforts to question witnesses whose pre-trial interviews with FBI investigators were kept from McVeigh's trial lawyers.

Matsch said McVeigh's attorneys failed to produce evidence that the FBI was impeding its efforts to investigate information from the 4,000 pages of FBI documents the agency said were inadvertently withheld from McVeigh's defense team.

Those documents, plus much of the McVeigh team's 40-page petitition for a stay and 300 pages of supporting exhibits, remain under seal.

Ashcroft issued a statement Thursday reiterating his vow to "oppose vigorously" any attempt to further delay McVeigh's execution.

"No document in this case creates any doubt about McVeigh's guilt or establishes his innocence. To overturn the jury's verdict or force a new trial, McVeigh must prove that the documents establish his innocence," he wrote. "Based on overwhelming evidence and McVeigh's own repeated admissions, we know that he is responsible for this crime, and we will continue to pursue justice by seeking to carry out the sentence that was determined by a jury."

Burr said that they would ask Matsch for an evidentiary hearing to "expose" the federal government's failure to turn over evidence and documents.

"Where we are right now is having a considerable amount of evidence that the FBI is still withholding information," Burr said. "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."

The attorneys said they know of a number of people who were investigated by the FBI who are not mentioned in the files.

Nigh said he had received another FBI interview summary from the Justice Department Wednesday. In response, the Justice Department released its letter written to McVeigh's defense team Wednesday, which accompanied and explained why the government was providing the additional document.

"This document was from a separate investigation and from a separate case file," said Justice spokeswoman Chris Watney. She said the document was provided to the defense lawyers because of allegations the previous day by former FBI agent Rick Ojeda that he believed not all of his documents relating to the Oklahoma City investigation had been turned over.

FBI officials also disputed the defense's claim and say they have conducted a thorough search and turned everything over.

"The FBI is unaware of any information to support what Timothy McVeigh's attorneys are referring to in their rhetoric. We are awaiting the specifics which will presumably be contained in the court filing before we can have anything to respond to on any educated basis," one senior FBI official told CNN.


• Federal Bureau of Investigation

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