In the End, It'll Be McVeigh's Call Whether to Fight On

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ED ANDRIESKI/AP

Nathan Chambers, attorney for Timothy McVeigh, responds to reporters' questions

Timothy McVeigh’s lawyers face a daunting task: Read through more than 3,000 documents, determine whether they contain information relevant to their case, and convince their client that he does, in fact, want to pursue a new route of appeal. And all this needs to take place before June 11, the day Attorney General John Ashcroft has set aside for McVeigh’s execution.

Beyond exploring the minutiae of the initial set of documents, McVeigh’s lawyers face another, not insubstantial problem: Revelations Monday that even more documents have surfaced at the FBI’s Baltimore office has led some observers to wonder if this slow trickle of "new" evidence will ever completely stop.

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It’s still unclear what if any impact these new developments might have on McVeigh’s fate. Will the new documents, which reportedly contain information relating to the mysterious John Doe No. 2, give McVeigh’s defense team a new lease on life?

They could, says Boston College law professor Phyllis Goldfarb. That’s assuming, of course, that their client is game. "This is still McVeigh’s call. If he doesn’t want to raise the potential claims these new disclosures provide, it’s his decision," says Goldfarb. And while McVeigh has waived appeals in the past, he may see recent developments as a golden opportunity to drive his point home. "It’s possible McVeigh might want to pursue this particular line of appeal because it’s about his raison d’etre: government mistakes," says Goldfarb.

But what about all those inflammatory admissions McVeigh has made over the past three years, bragging about his role in the attack and dissecting at great lengths his lack of emotional response to the tragedy? Couldn’t all that language ruin any chances for an appeal? Not necessarily, says Goldfarb. "One could conceivably argue that because he only went public after the conviction, and with the understanding that all the evidence had been considered, the statements should be disregarded. Someone might say he would have chosen his own course of action differently if all the evidence had been present at the trial."

Then, if McVeigh does okay an appeal, says Goldfarb, the ball is back in his lawyers’ court. "The first thing McVeigh’s lawyers have to do is tie any arguments they have to the substance of the new documents. They could claim the substance of the documents might have changed the substance of the defense or the case, or the strategy of the trial."

Assuming that line of argument reaches a judge, perhaps in the form of a request for a new trial, the defense team would wait, just like the rest of us, for a ruling. In the long run, only a judge, not lawyers, can determine if the new evidence is actually important enough to merit consideration. The judge could reject the complaint outright, or he could accept it and order a brand new, drawn-out trial. In other words, he could order exactly the outcome the government is scrambling so desperately to avoid.

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