Timothy McVeigh's lawyers have gone to the 10th U.S. Circuit Court of Appeals in Denver in another last-ditch bid to get a stay of execution for the Oklahoma City bomber, who is scheduled to be put to death on Monday.
Attorney Christopher Tritico says he hopes the federal appeals court will see something that U.S. District Judge Richard Matsch didn't see on Wednesday when he denied McVeigh's request for a stay.
A spokesman has said the court's panel of three judges could reach a decision within hours.
Tritico said McVeigh's lawyers will argue that they need more time to look at the thousands of documents that were just recently made available by FBI.
"All we're asking for is time to do what we need to do," he said.
He said McVeigh gave them permission to file the appeal and that attorney Nathan Chambers was meeting with McVeigh in a federal prison in Terre Haute, Ind.
McVeigh, 33, is set to die by injection Monday morning at the federal prison in Terre Haute, Ind. after being convicted in 1997 of conspiracy, using a weapon of mass destruction and murdering eight federal law enforcement officers.
The April 19, 1995, explosion at the Alfred P. Murrah Federal Building in Oklahoma City killed 168 people and was considered the deadliest act of terrorism in the U.S.
Depending on the appeals ruling, McVeigh or the federal government may appeal to the U.S. Supreme Court, which has been mostly unsympathetic to 11th-hour pleas. McVeigh's execution, originally scheduled for May 16, was delayed by Attorney General John Ashcroft after the government found some documents hadn't been turned over to the defense.
But Ashcroft says time has run out for McVeigh and he opposes further delays.
"We've never had a doubt about the guilt of Timothy McVeigh," Ashcroft said Wednesday.
Legal analysts said Matsch's decision Wednesday was a major setback for McVeigh and predicted he would have a difficult time convincing the appeals court that he deserves a postponement.
"The only thing that made life worth living for Timothy McVeigh was the prospect of an evidentiary hearing to put the federal government on trial. Now that has been taken away from him," said Denver legal analyst Craig Silverman.
During Wednesday's hearing, McVeigh's attorneys argued they needed more time to review the nearly 4,500 pages of FBI material released in the past month. They said the information may point to others who may have been involved in the bombing, which could have affected the outcome of McVeigh's trial.
Matsch said he was shocked to learn of the newly released material, but he said the jury's verdict should stand.
The FBI had a duty to let prosecutors know about the evidence, while McVeigh had a similar duty to let his attorneys know about others who may have been involved, said Matsch, who also presided at McVeigh's trial.
"Whatever role others may have played, it's clear that Timothy McVeigh committed murder and mayhem as charged," the judge said. "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."
In seeking an execution delay, McVeigh accused the government of committing a "fraud upon the court" for failing to turn over all information before trial as Matsch had ordered. The Justice Department presented the new documents to the defense six days before the original May 16 execution date.
McVeigh attorney Rob Nigh said one of the newly released documents included information on a potential witness who was unknown to the defense. The defense also contends some FBI agents knew of other possible conspirators but allowed McVeigh to shoulder the blame alone.
"If Mr. McVeigh is allowed to be executed five days from now, the integrity of the process will have been destroyed," Nigh said Wednesday.