Convicted Oklahoma City bomber Terry Nichols may get some help in his appeal as U.S. judges in Colorado consider whether some 36,000 pages of undisclosed FBI tips and evidence should be provided to his attorneys.
Last week, Judges Deanell R. Tacha and Bobby Baldock of the 10th U.S. Circuit Court of Appeals raised that possibility during oral arguments on Nichols’ latest appeal, according to a report in the Daily Oklahoman.
Nichols contends the appeals court should instruct his trial judge to consider whether the FBI tips contain information that might result in a shorter sentence.
Nichols, 46, is serving a life sentence for the conspiracy to bomb the Oklahoma City federal building. The 1995 truck bombing resulted in 168 deaths.
“Why aren’t they entitled to have some review?” Chief Judge Tacha asked prosecutor Sean Connelly.
Asked Baldock, “Why shouldn’t you as the government, if you’re conceding that there’s so many documents, afford somebody the opportunity to look at them?”
The 36,000 pages of tips, whose existence were not known about until after Nichols’ 1997 trial, have not been provided to his legal team.
“They’ve already had their day in court on that,” Connelly said.
A different panel of the court ruled in December 2000 that the government’s failure to turn over the FBI leads to Nichols’ lawyers did not violate his right to a fair trial.
The U.S. Supreme Court twice has denied Nichols’ request for a new trial.
Nichols claims the tips may show there was another person involved in the plot carried out by Timothy McVeigh – “John Doe 2.” Prosecutors contend reports that members of the public saw “John Doe 2” were cases of mistaken identity.
Nichol’s lawyer, John Richilano of Denver, revived the issue after the FBI revealed in May it found many reports of agents’ interviews that had not been disclosed to defense lawyers for McVeigh, who has been executed for his role in the bombing, and Nichols.
At the time, Connelly conceded that reports of the interviews should have been provided to the defense years earlier.
The court typically takes weeks or months to issue its decisions. The third member of the three-judge panel, David Ebel, did not specifically comment on whether he thinks Nichols is entitled to have the undisclosed tips reviewed.
U.S. District Judge Richard P. Matsch, who conducted the trial, previously concluded that thousands of pages of other tips contained nothing that entitled Nichols to a new trial or lesser sentence. But the judge did not evaluate the remaining 36,000 pages that now are at issue.
Nichols is in custody in Oklahoma City.