Why Ashcroft Is Being Cautious Over McVeigh Execution

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Timothy McVeigh

Six days before the Timothy McVeigh was scheduled to be executed for his role in the Oklahoma City bomb blast that killed 168 people, the FBI announced that it has discovered more than 3,000 documents that were not turned over to McVeigh’s defense team during the trial.

Friday afternoon, Attorney General John Ashcroft recommended that McVeigh’s execution be stayed until June 11, in order to give the defense a chance to review the new documents, which senior FBI attorneys say have had no bearing on the outcome of the case. McVeigh, who has pressed for his execution to be carried out as quickly as possible, is likely to oppose such a move.

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Ashcroft also called for a thorough investigation into why the documents' delivery was delayed.

James Coleman, a professor of criminal law and legal ethics at Duke University Law School, spoke with TIME.com Friday morning about the stay, the documents and the legal ramifications of the government’s slip-up.

TIME.com: Given the recent developments, are there certain procedural steps McVeigh’s lawyers must follow at this point in order to avoid charges of incomplete representation?

James Coleman: No, there are no pending procedures; nothing is automatic at this point. If the government hadn’t acted and McVeigh decided he wanted to give his lawyers time to review the new documents, he would have had to say something.

And now the Justice Department has recommended a 30-day stay....

Given the nature of this case, I don’t think they had any choice; the government wants to eliminate any lingering question at all as to whether the trial was fair.

The FBI is obviously going to take a lot of heat over this mistake, and some will argue the embarrassment was avoidable. Is it possible that if the agents who stumbled upon the documents had just continued filing them, no one ever would have known they were there?

I don’t think so. The documents would have been found eventually; there were probably copies made. The absolute worst thing for the government’s case and credibility would be to have a law professor or journalist poking around the case files five years from now stumble on those documents. Keeping this mistake under cover would have only fed the anti-government paranoia that was, in part, the root of the Oklahoma bombing in the first place.

This case is particularly strange because you have McVeigh confessing to the bombing, and bragging about it and then refusing all appeals. It seems that the defense team is almost having to work against their client in order to give him the best defense.

That’s true, in a way. But you have to remember that although McVeigh is willing to take sole responsibility for the bombing, there are a lot of people out there who don’t believe he did this on his own, or that he may be taking a fall for a bigger fish.

McVeigh’s confession doesn’t really solve anything — people sometimes confess to things they didn’t do.

Does anyone believe there will be enough information in these documents to totally disprove McVeigh’s guilt?

It’s very hard to say — the problem with these documents is that you can’t review them in isolation. You have to look at them in the context of the entire case. I don’t think they could prove McVeigh’s innocence, but they might raise a doubt as to McVeigh’s sole guilt, by introducing other players into the picture, for example. The documents can’t be ignored because they might raise doubts about some aspect of the prosecution’s case. And that’s what the government wants to avoid at all costs.