Denver A judge denied Timothy McVeigh a further stay of execution Wednesday, saying nothing in newly disclosed FBI documents could change the fact that he was the "instrument of death and destruction" in the Oklahoma City bombing.
McVeigh's lawyers said they would file an appeal Thursday. The 33-year-old Gulf War veteran is set to die by injection Monday at a federal prison in Terre Haute, Ind.
After a hearing that lasted a little more than an hour, U.S. District Judge Richard Matsch said he was shocked that the government waited until six days before McVeigh's original execution date to begin turning over more than 4,400 pages of documents in the case.
But he brushed aside McVeigh's bid to force a hearing over the mistake and said the findings of the jury that convicted McVeigh in 1997 still stand.
The jurors "executed their moral judgment as a conscience of the community," said Matsch, who presided at the trial.
"Whatever role others may have played, it's clear that Timothy McVeigh committed murder and mayhem as charged," he said. "Whatever may in time being disclosed about possible involvement of others in this bombing, it will not change the fact that Timothy McVeigh was the instrument of death and destruction."
McVeigh's attorneys had argued that the execution should be delayed because the FBI documents released last month could have helped McVeigh's defense, perhaps by pointing to the involvement of others in the crime.
Matsch said if the FBI had the duty to disclose to what it knew to prosecutors, McVeigh had the same duty to tell his lawyers if others were involved in the bombing.
Attorney General John Ashcroft was pleased with Matsch's decision. "We've never had a doubt about the guilt of Timothy McVeigh," he said.
McVeigh's appeal will be filed with the 10th U.S. Circuit Court of Appeals in Denver which has never overturned Matsch in the bombing case. Further appeals would go to the Supreme Court.
McVeigh will be moved as early as Friday from his cell to the holding cell in the death chamber.
In Oklahoma City, Martha Ridley, whose daughter Kathy died in the 1995 bombing, said, "Mr. McVeigh is an admitted and printed and convicted murderer. I just want to get this thing over with and be done with it. It's time for him to go."
But Jannie Coverdale, who lost two grandsons in the explosion, had hoped for a delay. She believes McVeigh and co-conspirator Terry Nichols did not plan the bombing alone.
"I'm wondering now that if Tim is executed, will we ever know?" she asked. "We have been fighting so long for the truth. I have no confidence in the government now."
In Pendleton, N.Y., McVeigh's father said he was disappointed but not surprised.
"He's going to get executed sooner or later. Most people know he did it, so ..." Bill McVeigh said, his voice trailing away. "I think the longer he lives, the better. It's easiest on me but, like I said, it's going to happen eventually."
During the hearing, Matsch recalled getting a letter from prosecutor Sean Connelly recently advising him that documents had been withheld.
"It's a good thing I was in quiet chambers and not in court because my judicial temperament escaped me when I read it. It was shocking," the judge said.
But Connelly argued Wednesday that information in the documents was contained in FBI interview reports that had been given to the defense before trial.
The prosecutor has also pointed out that McVeigh confessed to the April 19, 1995, bombing in a recent book and said that he alone carried out the attack that killed 168 people.
Defense attorneys said the 4,000 pages and 11 CDs of FBI material may contain information about others who may have been involved in the deadliest act of terrorism on U.S. soil.
McVeigh attorney Rob Nigh said one of the newly released documents included information on a potential witness who was unknown to the defense. "If Mr. McVeigh is allowed to be executed five days from now, the integrity of the process will have been destroyed," he said.
The Justice Department began turning the documents over to the defense six days before the original May 16 date for McVeigh's execution. He had been convicted of murder and other charges and sentenced to die in a 1997 trial in Denver.
In seeking the delay, McVeigh accused the government of committing a "fraud upon the court" because it failed to turn over the information before trial as Matsch had ordered.
McVeigh's lawyers contend that at least some FBI agents knew of other possible conspirators but allowed McVeigh to shoulder the blame alone.
Nichols, 46, is serving a life sentence for involuntary manslaughter and conspiracy in the bombing. His appeal is pending at the U.S. Supreme Court.