Very Appealing

Last week's revelation that the FBI withheld evidence in the Oklahoma City bombing prosecutions touched off widespread media speculation about its potential impact on the case of condemned killer Timothy McVeigh.

But the guy in the best position to benefit from the agency's latest gaffe isn't McVeigh at all -- it's Terry Nichols, his convicted co-conspirator.

While many news outlets focused almost exclusively on the possible effects on McVeigh's postponed execution, attorneys for McVeigh were already plotting new appeals.

Houston attorney Ronald Woods, who teamed with lawyer Michael Tigar to defend Nichols, says that if any of the newly released evidence is favorable to either defense, Nichols stands to be the big winner.

"If there's any exculpatory stuff in there, it'll amount to a lot more for us than for McVeigh," says Woods, a former U.S. attorney here. The reason is that appeals courts weigh such new evidence largely on whether it could have altered the outcome of the trial. The government mounted a strong case against McVeigh, and a much weaker one against Nichols.

"The judge knows that, for six days, jurors were 10-2 for 'not guilty' in our case," Woods points out. "He knows the evidence was not overwhelming against Nichols."

The jury in 1998 acquitted Nichols of charges of first- and second-degree murder in the 1995 bombing of the Murrah Federal Building, which killed 168 people.

Nichols was convicted of the lesser counts of involuntary manslaughter and conspiring to use a weapon of mass destruction. Jurors deadlocked in punishment deliberations. U.S. District Judge Richard Matsch issued the maximum sentence possible: life without parole.

State prosecutors, miffed that Nichols evaded death row on the federal front, have charged him with 160 cases of capital murder.

Last week the U.S. Department of Justice admitted that it had just found a few thousand pages of documents that were "mistakenly" filed away rather than turned over to defense attorneys prior to the trials. Woods says those include investigative material from five different FBI field offices -- a variety of tape recordings, photographs and agent summaries of interviews with potential witnesses, known as 302 reports.

In the first Nichols appeal, Tigar and Woods strongly attacked the FBI's refusal to provide the "lead sheets," reports by agents fielding calls into a toll-free tip line set up after the bombing. Woods says the sheets are important because they contain raw information directly from witnesses. The 302 reports, written after interviewing prospective witnesses, can be manipulated by agents to suit the FBI's particular theories about suspects in a case, he says.

For example, Woods says one lead sheet reported a caller seeing the rental truck (which carried the bomb) next to a new silver Ford pickup by a lake. But by the time the caller was interviewed in person, the FBI had arrested Nichols and was busy building a case. So in the 302 report, the description had been changed to a mid-'80s blue GMC truck, to match Nichols's vehicle.

An appeals court criticized the government for refusing to divulge some evidence in the lead sheets, but the U.S. Supreme Court upheld the conviction.

Prosecutors could not be reached for comment on the latest revelations, although a Justice Department statement says the material is not believed to be critical to McVeigh's defense. Some appellate lawyers in Houston said the Nichols defense team would appear to have some cause for optimism, although they did not want to comment further until details emerge about the evidence.

A final plus for Nichols is that his acquittal on the most serious charges means a new federal trial would not expose him to the death penalty again. "So essentially he'd have nothing to lose -- and everything to gain," Woods says.

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