Nichols rebuts government's response to bid for new trial

Monday, June 19th 2000, 12:00 am
By: News On 6

DENVER (AP) -- A federal court wrongly denied a motion for a new trial by convicted Oklahoma City bombing conspirator Terry Nichols, his attorneys argued in a brief Monday.

Nichols' attorney, Susan L. Foreman, argued in the brief thatthe U.S. District Court in Denver should have granted his motion for a new trial because the government failed to disclose information contained in FBI "lead sheets." The brief filed with the 10th U.S. Circuit Court of Appeals was a rebuttal to a government brief opposing Nichols' bid for a new trial.

The government last month asked the court to reject Nichols' appeal, denying that prosecutors withheld information during his trial.

Foreman asked for a new trial in April, saying prosecutors withheld information contained in the FBI's information-control forms, or "lead sheets." In the government's response, prosecutor Sean Connelly said evidence is material only "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different."

Foreman argued in the brief filed Monday that it is not for the government to decide the credibility or usefulness of the lead sheets. She noted that the district court ordered prosecutors to "disclose to the defense information known or available to them which may develop doubt about the truth of the government's narrative."

She also refuted the government's contention that the information in the lead sheets is "cumulative."

"The government is arguing that if there were four eyewitnesses to a murder, who all described the assailant in terms that did not match the accused's physical description, the defense would only been titled to the statement of one of them because the other three are cumulative," Foreman wrote. "That is not the law."

Foreman urged the appeals court to grant Nichols a new trial based on prosecutors' violation of discovery procedures. Alternatively, she wrote, the case should be sent back to district court for further action regarding the lead sheets.

The April 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City killed 168 people and injured hundreds more.

Nichols was convicted in U.S. District Court in Denver of eight counts of involuntary manslaughter and is serving a life sentence in federal prison. His former Army buddy, Timothy McVeigh, was separately convicted of murder and weapons counts and sentenced to death.