JUSTICE Department says FBI document problem should not mean new trial for McVeigh bombing partner

<br>WASHINGTON (AP) _ The FBI's failure to turn over thousands of documents in the Oklahoma City bombing is not reason to reopen the case of Timothy McVeigh's convicted partner, the Bush administration

Saturday, July 28th 2001, 12:00 am

By: News On 6

WASHINGTON (AP) _ The FBI's failure to turn over thousands of documents in the Oklahoma City bombing is not reason to reopen the case of Timothy McVeigh's convicted partner, the Bush administration contends.

In legal papers filed Friday, the Justice Department urged the Supreme Court to reject Terry Nichols' appeal. Nichols claims that the FBI document incident supports his assertion that government lawyers failed to turn over material that could have helped him during his 1997 trial.

Nichols says lower courts did not do enough to ensure his lawyers got all the documents they were due, and he wants a hearing or investigation that could lead to a new trial.

The Supreme Court had already rejected that request when the government revealed in May that it had failed to turn over more than 4,400 documents to lawyers for McVeigh and Nichols. Nichols' lawyer then asked the Supreme Court to reconsider.

The court routinely rejects such requests for a second chance, but this time took the unusual step of ordering the Justice Department to respond.

``The recent production only highlights the government's good faith,'' Solicitor General Theodore Olson wrote.

``The government produced those documents voluntarily after learning that it inadvertently had not fully honored'' an agreement to turn over such material, he wrote.

Nichols' lawyer had argued that the FBI may have deliberately withheld information from both the bombing defendants and federal prosecutors. Nichols also claimed to have found at least two instances where federal prosecutors argued points in court that are contradicted by the new information.

There was no immediate word from the Supreme Court, which is out of session for the summer. Nichols may get an answer next month, when the court is scheduled to issue interim orders. The justices could also wait until they formally resume work in the fall.

Nichols was sentenced to life in prison after he was convicted of helping McVeigh prepare for the 1995 bombing of the Oklahoma City federal building, which killed 168 people and wounded hundreds more.

McVeigh was convicted as the bombing's mastermind, and executed last month after dropping an appeal also based on the FBI paperwork that had not been turned over.

The newly produced documents are different from the material Nichols had previously claimed he was denied, Olson wrote. Nichols has not shown that any of the material _ the papers his lawyers have previously identified and those only recently discovered _ would have helped him at the trial, Olson added.

The case is Nichols v. United States, 00-8900.