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May 19, 2001 More missing evidence alleged; Nichols' attorney: FBI hid documents By Michelle Mittelstadt WASHINGTON - Oklahoma City bombing investigation documents belatedly turned over by the FBI last week suggest there may be more evidence that hasn't been disclosed, a lawyer for Terry Nichols said in a Supreme Court filing Friday. The FBI denied any deliberate attempt to conceal evidence. Mr. Nichols' attorney, Michael Tigar, also charged that the FBI deliberately withheld from Mr. Nichols' defense team evidence that was required to be produced before his 1997 trial. Mr. Nichols was convicted of conspiracy and involuntary manslaughter for his role in the 1995 bombing, which claimed 168 lives and injured more than 500. He was sentenced to life in prison without the possibility of parole, a verdict which is on appeal. "We have reason to believe that the FBI agents may have consciously failed to memorialize interviews," Mr. Tigar wrote, suggesting a concerted effort to skirt the evidence-sharing agreement struck by prosecutors and the defense. Contained in the interviews, investigative reports and other evidence provided last week to lawyers for Mr. Nichols and convicted bomber Timothy McVeigh are references to interviews for which there are no FBI Form 302s - the standard witness interview form, Mr. Tigar said. "This is particularly troubling because we on the defense team assiduously complied with the discovery agreement by instructing our investigators to make a record of every interview so that we could turn it over," he wrote. "There are other instances of deliberate failure to make FBI 302 reports." There was no effort by the bureau - which is in the midst of a major review to examine its failure to produce documents - to conceal evidence, FBI Deputy Director John Collingwood said Friday. "During this exhaustive review, we have seen no evidence that suggests any intent to withhold evidence from the defendants. To the contrary, the intent has always been disclosure beyond that called for by law," he said. "That was true before the convictions, and from everything we have seen it remains true today." The FBI revealed last week that it had discovered more than 3,135 documents that were not shared with the defense, prompting Attorney General John Ashcroft to postpone Mr. McVeigh's scheduled May 16 execution until June 11. He also ordered a Justice Department inspector general investigation into how the document mishandling occurred. The FBI has since acknowledged finding additional materials but has yet to reveal the scope and size of the latest batch of documents, expected to be shared over the weekend with the McVeigh and Nichols legal teams. While admitting the document debacle represented a "grievous error," FBI Director Louis Freeh told Congress this week that he has no reason to believe it was anything other than a mistake prompted in part by the massive paperwork generated during the far-flung, complex investigation. Nearly 1 billion pages of investigative notes, interviews with more than 28,000 people, photos and other pieces of evidence were generated during the FBI's investigation, officials have noted. "It's a human failure and one which goes to the basics: Keeping records and making them available when requested," Mr. Freeh told senators Thursday. The director told lawmakers that Dallas FBI Special Agent Danny Defenbaugh, who headed the Oklahoma City investigation, first became aware of the possible problem in early March, and that Agent Defenbaugh received copies of the questionable material on May 7. He notified higher-ups about the situation the next day, Mr. Freeh said. A spokeswoman for Agent Defenbaugh initially said he received the materials in mid- to late April - a timeline at odds with the one offered by Mr. Freeh. Friday, Special Agent Lori Bailey amended that sequence of events, saying Agent Defenbaugh received the documents on May 7. She said her boss ordered the documents collected by the Oklahoma City FBI office to be sent to Dallas sometime between mid- and late April, but Agent Defenbaugh told the office to do so only after finishing its on-site review. That inquiry, she said, took until May 7, when the documents arrived in Dallas. At FBI headquarters, officials said the chronology outlined Wednesday by Mr. Freeh is the accurate version of events. While the FBI is denying any deliberate mishandling of the documents, Mr. Tigar in his court filing suggested the bureau hid evidence from defense and prosecution alike. In at least two instances, he said, federal prosecutors made arguments at trial that are contradicted by information in the newly reviewed material. "We do not suggest that the prosecutors were behaving unethically; rather, it appears that the FBI hid from them the evidence that the defense was presenting truthful, reliable evidence," Mr. Tigar said. Mr. Nichols' lawyers, whose earlier Supreme Court appeal was turned down in April, last week asked the high court to reconsider its decision in light of the FBI's failure to share required evidence. The court has not acted on the request. Mr. McVeigh's lawyers have not announced whether the FBI's omission will send them back to court in hopes of a further execution stay or new appeals. But the controversy, which has proved a major embarrassment to the FBI, is having repercussions in other cases. A neighbor of Mr. McVeigh's on federal death row in Terre Haute, Ind., is raising the possibility that the government was less than fully forthcoming in his own case. A lawyer for South Texas drug boss Juan Raul Garza, who is scheduled to follow Mr. McVeigh into the federal death chamber on June 19, wrote federal law enforcement agencies this week asking them to ensure they fully complied with evidence production. "In light of recent events surrounding the McVeigh case and the government's failure to comply with applicable federal statutes, procedural rules and the court's orders, I call on the United States Customs Service and all other federal, state and local law enforcement agencies to closely review all of their files involving Mr. Garza," Houston lawyer Douglas McNabb wrote. Mr. Garza, a Brownsville marijuana trafficker, was sentenced to death in 1993 for the murders of three associates. He has acknowledged responsibility. Mr. McNabb, who represented Mr. Garza at trial and on appeal, requested the agencies to "promptly turn over to the defense any evidence that they have that was not turned over to the defense in the original case." In an interview, Mr. McNabb said he has no evidence of withheld documents. However, he added, "I fight and negotiate with these folks on a daily basis all over the country, and it is always a concern of mine as to whether or not the government is turning over everything that they have." The Customs Service, which was the lead agency in the Garza investigation, offered no comment on the letter, addressed to Mr. Ashcroft and Treasury Secretary Paul O'Neill. Treasury oversees the Customs Service and the IRS, whose criminal division also had a hand in the investigation. The Justice Department also declined to comment. "If Mr. Garza files a motion, we'll respond in court," said Justice spokeswoman Chris Watney. | |