Transcript: Timothy McVeigh's Co-Counsel Robert Nigh

Published May 29, 2001

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This partial transcript of Fox News Sunday, May 13, 2001, was provided by the Federal Document Clearing House. Click here to order the complete transcript.

TONY SNOW, HOST: Attorney General John Ashcroft, acting on news that the FBI had
failed to share more than 3,000 pages of documents with Timothy McVeigh's defense team, has delayed the Oklahoma City bomber's execution until at least June 11. Here to discuss the McVeigh legal strategy is McVeigh's lead attorney, Robert Nigh. Also here, Brit Hume, Washington managing editor of Fox News -- Brit.

BRIT HUME, FOX NEWS: Mr. Nigh, you've now had an opportunity, you and your colleagues, to go through some of these documents. Have you found anything that is in any sense exculpatory or anything that might change the outcome of this case if you had had them in hand when the trial occurred?

ROBERT NIGH, MCVEIGH DEFENSE ATTORNEY: We have just begun the process
of reviewing the documents, and certainly the materials are relevant. We are not prepared to disclose the nature of the items that we have found thus far. We've only begun the process.

HUME: Well, I'm not asking you to disclose their nature in any specific way. I'm just asking you to tell me whether there's anything in them that would change the legal status of this case, going to the question of guilt or innocence, going to the issue of punishment. Have you come
across anything?

NIGH: Well, the fact of the production itself could possibly change the legal outcome of the case. And certainly, we have had a very limited opportunity to review some of the documents in isolation.

I'm not prepared to discuss now what the legal implication of those particular documents might be.

HUME: Well, what's your next move here then?

NIGH: The next move is to go through the materials themselves, conduct an analysis of them by themselves, but then also in the context of the evidence in the case, and during the same time, conduct legal research and formulate a legal strategy about what to do on Mr. McVeigh's behalf.

HUME: Now, has he authorized you to go ahead here and seek this further delay, or are you just acting on what you consider to be his interests, his wishes not withstanding?

NIGH: He has not authorized us to go forward with anything at this point. But he is willing to consider the options, and he's willing to listen to what we have to present. And in light of that, of course, we have to proceed with all dispatch.

HUME: I understand. Is your task not somewhat complicated, sir, by the fact that your client admitted he did this?

NIGH: It is not. This case has to be viewed in the context of the evidence at trial. It has to be viewed in the context of the evidence that is now available to us that was not available to us in 1997.

SNOW: Mr. Nigh, let's go through several possibilities. You received 3,000 pages of documents. Do you intend to go back and re- interview people who were interviewed by the FBI in the hours immediately following the bombing?

NIGH: That certainly is a very real possibility. One of the problems with this is that witnesses that might be identified within these pages may no longer be easily located. Their memories certainly have faded since they made their statements in 1995. And that's one of the fundamental problems caused by this extremely late production.

SNOW: That being the case, you're almost certainly going to ask for more time than June 11?

NIGH: That's going to depend, in part, upon Mr. McVeigh.

SNOW: Mr. McVeigh has said that he is the sole person responsible and that he wants to die. Has he been lying to everybody?

NIGH: He has never said that in court, and under the legal status of his case when he indicated that he did not want to pursue any further appeals, we did not have the kind of revelation that we have today.

In light of that, it's completely reasonable for him to reevaluate his position.

SNOW: Mr. Nigh, isn't Timothy McVeigh's only chance of staying alive to demonstrate that somebody else was involved in this?

NIGH: No, I would say not.

SNOW: Why?

NIGH: The facts of the case are now certainly at issue.

SNOW: But Mr. Nigh, the FBI produced millions of pages of documents. The 3,000 pages came from 46 different field offices. It wasn't as if they had a single file that they were trying to hide. Don't you think it's conceivable that this was simply a screwup?

NIGH: Well, we have to look very carefully at how this came about. We have to determine precisely how it was that these documents could exist and not be produced to the defense prior to the time of trial.

One of the rules that the court imposed was that discovery materials had to be produced in sufficient time for the defense to make fair use of them, and that's only reasonable. In this instance, it wasn't done.

HUME: Now, what do you sense, though, about this? You just heard Tony suggest to you the possibility that this was a mistake, a bad one, perhaps, but an honest mistake. Do you view this otherwise? Or do you have any reason to suspect this was other than a serious, but honest mistake?

NIGH: We simply don't know at this point.

HUME: Will you need to take testimony from FBI agents to determine that? And what if you were to determine that this was done deliberately? Wouldn't ultimately the substance of the documents themselves be the controlling factor?

NIGH: Those questions are very good questions, and I don't think there's a good answer yet. I think that if there is intentional conduct, that creates a whole different series of legal issues. That's why it's extremely important to determine precisely how this could happen.

SNOW: Mr. Nigh, the 10th U.S. Circuit Court of Appeals last year heard an appeal from Terry Nichols after he discovered that the FBI had failed to turn over about 13,000 pages of documents. The court considered his plea, said the documents didn't have any ultimate bearing on the case, and they threw out his appeal. Why wouldn't that precedent hold in your case unless there's clear evidence either that Timothy McVeigh did not do it or that he did not act alone?

NIGH: There was a distinction between the types of documents that were revealed at that point in time and the types of documents that are being produced to us now. The types of documents that are being produced to us now clearly were required under the legal agreement of the parties to be produced prior to trial, but they were not.

SNOW: Mr. Nigh, Judge Richard Matsch, who is the federal district judge hearing the case, is it conceivable that he could decide that this case needs to continue until he's satisfied that all the evidence has been presented?

NIGH: At this point, I would say that anything is conceivable in this case.

SNOW: All right. Robert Nigh, thanks for joining us.

NIGH: Thank you.

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