DENVER — U.S. District Judge Richard P. Matsch refused Wednesday to further postpone the execution of Timothy J. McVeigh, saying he found no proof in newly discovered FBI files that anyone other than McVeigh "was the instrument of death and destruction" in the Oklahoma City bombing.
Though clearly disturbed by the FBI's handling of the case, Matsch said there appeared to be nothing in documents turned over by the agency to indicate that McVeigh was innocent.
Barring any last-minute successful appeals here or in Washington, McVeigh is just four days from execution, at 7 a.m. Monday at the federal government's new death row chamber in Terre Haute, Ind. He would become the first federal prisoner executed in 40 years.
His lawyers, visibly disappointed that Matsch ruled against them, immediately announced that they will appeal to the U.S. 10th Circuit Court of Appeals here today and that, if they lose, will turn to the U.S. Supreme Court.
"It's hard to say what will happen now," said Richard Burr, one of McVeigh's lead attorneys and an expert on death row appeals. "But our work will definitely go into the weekend."
In January, McVeigh had dropped all legal appeals and convinced Matsch that he wanted to die. At that time, the federal Bureau of Prisons set his execution for May 16.
But just six days before McVeigh was scheduled to die, FBI officials revealed that they had found agency files that had not been disclosed to the defense, prompting Atty. Gen. John Ashcroft to postpone the execution until Monday. Ultimately, more than 4,000 pages of files were found.
"Whatever may in time be 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," the judge said. "For that, he was sentenced to death by lethal injection."
And Matsch, as if for emphasis, repeated that, "whatever role others may have played, it's clear that Timothy McVeigh committed murder and mayhem as charged."
The judge also said that, while it was not within his purview to criticize the FBI, he hoped the agency would be forced to answer for its eleventh-hour blunder.
"It is the function of others to hold the FBI accountable for its conduct here, as elsewhere," he said. "And I would expect that there would be consequences upon finding . . . an undisciplined organization or organization that is not adequately controlled, or that can't keep track of its information."
McVeigh's defense attorneys had sought a stay of execution on several fronts.
They claimed that the discovery last month of new FBI files was a "fraud upon the court" because the government and the defense had agreed before McVeigh's trial that all of the material in the massive investigation would be turned over.
Furthermore, they strongly suggested that the FBI only admitted the recent discoveries for fear of being caught. They said they believe the FBI still has information that others helped McVeigh but has refused to disclose it because McVeigh is about to die.
They have even suggested that some government authorities might have known about the bombing plot in advance.
But assistant prosecutor Sean Connelly said there is no new material helpful to McVeigh.
He said that when he learned of the FBI blunder he immediately had the first batch of newly discovered files flown on an FBI plane to his office in Denver and then distributed copies to the McVeigh team and the lawyers for his convicted collaborator, Terry L. Nichols, who was sentenced to life in prison.
Connelly did concede, however, that new documents continued to show up even after high-ranking FBI officials had sent out 16 separate directives for agents to collect any new material.
"I'm willing to accept that the system broke down," Connelly said. "The system didn't work as we thought it was working."
Matsch, who on occasion has displayed a short, fiery temper in the courtroom, described his emotions upon reading about the discovery of the new FBI files while he was working in his court chambers and not on the bench.
"It's a good thing I was in quiet chambers and not in court because my judicial temperament escaped me when I read it," he said. "It was shocking."
But Matsch said that even if there were others involved beyond McVeigh and Nichols, McVeigh was convicted on other counts in the indictment against him that went beyond his role in the conspiracy.
Matsch noted that McVeigh also was found guilty of using a "weapon of mass destruction," of destroying the Alfred P. Murrah Federal Building and of first-degree murder in the deaths of the eight federal law enforcement officials killed that day.
He said the new material falls far short of the legal requirements to cast doubt on McVeigh's guilt.