McVEIGH cohort alleges FBI deception in missing documents

Friday, May 18th 2001, 12:00 am
By: News On 6

WASHINGTON (AP) _ A lawyer for Terry Nichols, who was convicted as Timothy McVeigh's helper in the Oklahoma City bombing, claimed the FBI may have intentionally withheld documents from defense lawyers and misled federal prosecutors.

``We have reason to believe that the FBI agents may have consciously failed to memorialize interviews,'' using a standard FBI form that would then be available to defense lawyers, lawyer Michael Tigar wrote in a Supreme Court filing released Friday.

Documents the FBI belatedly turned over last week refer to interviews the FBI completed during its investigation of the bombing, but the customary ``Form 302'' reports documenting those interviews are missing, Tigar claimed.

Tigar also claimed he has found at least two instances where government prosecutors made arguments at trial that are contradicted by the newly discovered material.

``We do not suggest that the prosecutors were behaving unethically,'' Tigar wrote. ``Rather, it appears that the FBI hid from them the evidence that the defense was presenting truthful, reliable evidence.''

Tigar did not detail that allegation, except to say it concerned prosecutors' cross-examination of a defense witness.

Tigar did not immediately respond to requests for comment. FBI spokesman Jay Spadafore referred questions to the Justice Department, which declined to comment.

Nichols has asked the Supreme Court to reconsider his appeal in light of the FBI's revelation last week that 3,100 documents were not given to defense lawyers ahead of the Nichols and McVeigh trials, as required by a judge's order.

The surprise announcement caused Attorney General John Ashcroft to delay McVeigh's scheduled execution. McVeigh was convicted as the mastermind of the 1995 bombing that killed 168 people.

The Supreme Court has not acted on Nichols' request, which was made before his lawyers had seen any of the new material. The justices will probably consider later this month whether to hear his case.

Tigar updated the request Thursday, after he had seen at least some of the new documents. His declaration, similar to a sworn affidavit, was also sent to the solicitor general's office at the Justice Department. The solicitor general is the Bush administration's advocate before the Supreme Court.

Nichols is ultimately seeking a new trial. He claims that the government withheld other material from his lawyers before trial, and that the trial judge should have done more to ensure the prosecution team behaved correctly.

Nichols was sentenced in 1997 to life in prison after he was found guilty in a federal trial of involuntary manslaughter and conspiracy for his role in the bombing of the Alfred P. Murrah Federal Building.

He was acquitted on federal charges of first- and second-degree murder.

Nichols has pursued various appeals since then, including one the Supreme Court turned down without comment in April.

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