Playing For a Stay

By Viveca Novak and Elaine Shannon

Tim McVeigh's latest battle with the Federal Government is, for him at least, a win-win proposition. Last week lawyers for the Oklahoma City bomber asked federal judge Richard P. Matsch to stay McVeigh's execution, which was postponed from May 16 until June 11 after the FBI admitted it had misplaced more than 4,000 pages of documents that should have been given to McVeigh's defense team. Arguing that the government had perpetrated "a fraud on the court," the lawyers requested a hearing to determine whether the feds willfully withheld the documents in order to conceal exculpatory evidence--and whether the bureau is hiding additional evidence even now. It's a long shot, but what does McVeigh have to lose? If his motion is denied, and he is executed, well, he was already prepared to die; he dropped earlier appeals to hasten the event. If he prevails, he could become a constant, life-sentenced reminder that the FBI managed to botch its biggest case ever. Nothing could please the self-styled enemy of government more than that.

Among the facts lawyers want Judge Matsch to consider are witness reports that resurrect nagging questions about whether a larger conspiracy led to the April 1995 bombing that took 168 lives. One of the documents, for instance, summarizes a call received by the FBI from Morris John Kuper Jr., who told investigators to check out activities in a parking lot a block away from the Murrah Federal Building about an hour before it was blown apart. Kuper later testified that he had seen a man resembling McVeigh walking with a dark-haired, muscular companion--a description that matches those by other witnesses of a man who came to be known as John Doe 2. Investigators eventually concluded the mystery accomplice didn't exist and tried to disprove some of the reported sightings. Kuper, for instance, was discredited by prosecutors for not having come forward until five months or so after the bombing. But the new document turned over to McVeigh's defense team shows that Kuper had passed along his lead to the FBI just two days after the bombing.

If there was another confederate in addition to convicted accomplices Terry Nichols and Michael Fortier, that could have affected McVeigh's sentencing, if not his trial--especially if the mystery man was more than a bit player. McVeigh lawyer Richard Burr contended last week that the testimony of a witness who claimed to have seen a Ryder truck and other vehicles, including one containing fertilizer, like the one used for the bomb, at Geary Lake in Kansas the day before the bombing helped save Nichols from the death penalty, because jurors couldn't be certain that someone else wasn't involved. That matters because--as Judge Matsch reminded the government before the 1997 McVeigh trial, over which the jurist presided--"nonprosecution of equally culpable participants" may be a mitigating factor that helps a defendant avoid capital punishment. "Anything tending to show involvement of persons other than or in addition to Timothy McVeigh may be material to his defense." In interviews since his conviction, McVeigh has admitted carrying out the bombing and has denied that anyone else was involved. But skeptics argue that his denials could mean he is trying to protect allies so they can launch more attacks on the government.

The FBI's battered image took another hit late last week when former Senator John Danforth, who conducted an inquiry into the 1993 deaths of 75 followers of Branch Davidian leader David Koresh in Waco, Texas, revealed that he too had trouble wrenching documents from the agency--to the extent that he threatened to serve a search warrant on the general counsel's office. Danforth faults a grudging FBI culture and a balky data-retrieval system. "In the FBI somewhere there was a resentment of the effort that was entailed in finding all this stuff," Danforth told TIME. He said he'll never be sure he got all relevant documents, but that the results of his probe are not in doubt.

That's what Attorney General John Ashcroft is saying in McVeigh's case. "No document in this case creates any doubt about McVeigh's guilt or establishes his innocence," Ashcroft said last week. Maybe not. But the Kuper document alone could be enough to buy McVeigh more time. Judge Matsch has called a hearing for Wednesday. The no-nonsense jurist will probably make a decision quickly. "Nobody wants lingering doubts in this case, including Judge Matsch," says criminal lawyer Larry Barcella, a former federal prosecutor.

McVeigh is surely relishing his ability to wage psych war on the FBI from death row. That appears to have been his motive all along. In the car McVeigh drove away from Oklahoma City, FBI agents found a page from The Turner Diaries, a novel about a white-supremacist cell that brings down the government. McVeigh had highlighted this sentence: "But the real value of our attacks today lies in the psychological impact, not in the immediate casualties."