John Doe No. 2 doesn't exist, McVeigh maintains in letter

Houston Chronicle/May 15, 2001
By Kim Cobb

With his execution on hold and his attorneys reviewing old leads about possible accomplices, Timothy McVeigh has written a letter to the Houston Chronicle stating unequivocally that there was never a "John Doe No. 2."

Legal experts say the statement, in McVeigh's own distinctive handwriting, could weaken any argument his attorneys might make to seek a new trial based on the possible existence of other conspirators in the 1995 bombing of the Alfred P. Murrah Building in Oklahoma City, in which 168 people were killed and hundreds injured.

McVeigh dated his single-page letter May 2 -- a full week before the FBI revealed it had found 3,135 documents about the bombing investigation that it never shared with the defense. Many are "tips" that reportedly did not pan out from people who claimed to have seen a man with McVeigh in the days before the bombing. The suspect came to be known as "John Doe No. 2."

McVeigh's letter came in response to a reporter's inquiries about renewed allegations by his estranged trial attorney, Stephen Jones, that McVeigh has always inflated his role in the bombing to serve his ego. Jones claims McVeigh was actually the tool of a larger group of conspirators.

"Jones has been thoroughly discredited, so I'm not going to break a sweat refuting his outlandish claims point-by-point," McVeigh wrote. "The truth is on my side." Jones says the attorney-client privilege no longer exists between himself and McVeigh, based on the condemned man's widely published confessions to the bombing and on McVeigh's claims that Jones misrepresented him.

McVeigh clearly disputes that, noting in the letter that Jones' "ethical transgressions" will have to be judged by his peers and the courts. "And last, does anyone honestly believe that if there was a John Doe #2 (there is not), that Stephen Jones would still be alive? ... Think about it," McVeigh wrote.

McVeigh, 33, had been scheduled to die Wednesday for the bombing. But after learning of the existence of the unreleased FBI documents, U.S. Attorney General John Ashcroft delayed the execution for one month, to June 11. Robert Nigh of Tulsa, one of McVeigh's current attorneys, told CNN's Late Edition Sunday that his client might rethink his previous decision to abandon all appeals and seek execution in light of the revelations the FBI had withheld evidence against him.

But on Monday, Nigh said he could not comment on McVeigh's statement to the Chronicle, mailed from a federal prison in Terre Haute, Ind., or on whether it would hamper any attempt to seek a new trial based on the newly revealed evidence. "Well, it certainly doesn't help," said Robert Pugsley, a constitutional law expert at Southwestern University School of Law in Los Angeles.

If the theory is that newly revealed FBI documents might contain leads to other people involved with McVeigh as accomplices, McVeigh's own words are at odds with the position his attorneys might take, Pugsley said. If he were McVeigh's attorney, Pugsley said, he'd be upset by the communiqué. McVeigh has, in effect, ambushed his own attorneys with this statement, he said.

"Well, I bet he wishes now he'd followed my advice and kept his mouth shut," Jones said. "And I bet he wishes he'd followed (appellate attorney) Nathan Chambers' advice and not dismissed those appeals." Jones said the defense team pursued the trail of John Doe No. 2 aggressively, adding, "Our defense at trial was the John Doe No. 2 was killed in the explosion."

But McVeigh took another swipe at Jones' pursuit of other conspirators by including a copy of a letter written to him in prison by a woman (whose surname is Smiley) who asked, "Was Elvis involved in the bombing?" McVeigh attached a pre-pasted note to the woman's odd letter and wrote: "Jones and Smiley, kindred spirits."

"I never entered this to be a popularity case, so if Tim doesn't like me, I'm sorry," Jones said. "I was right (that) the government was withholding things, and I was right (that) Tim should have kept his mouth shut. But not everybody has the strength to admit they've made a mistake, even when their life is at issue," Jones said.

Unlike McVeigh, convicted co-defendant Terry Nichols has always embraced the possible existence of "John Doe No. 2" and is asking the U.S. Supreme Court to consider whether the revelation of the FBI documents could cast doubt on Nichols' guilt. The high court recently let stand lower court decisions denying Nichols a new trial.

The FBI eventually determined and prosecutors argued that the mystery man sketched in a nationally distributed FBI flier was a case of witness mistake. "At trial (prosecutors) contended that John Doe No. 2 did not exist and had the significance of `Elvis sightings,' whereas Mr. Nichols argued that John Doe No. 2 does exist and that he, not Mr. Nichols, was Mr. McVeigh's accomplice," Nichols' attorneys argued in their latest appeal to the Supreme Court.

Nichols attorney Susan Foreman wrote, "To a defense lawyer, John Doe No. 2 materials are a fertile source of exculpatory ... material. In a case of this magnitude, where the defendant's life and liberty were at jeopardy ... it is essential the defense have every opportunity to review and assess the withheld materials."

Nichols was convicted of involuntary manslaughter and conspiracy in the bombing. He was sentenced by U.S. District Judge Richard Matsch to life in prison but still faces state murder charges in Oklahoma that could lead to a death sentence. The Supreme Court has rarely granted a request for a rehearing once an appeal has been denied. But while legal experts say McVeigh's previous admissions of guilt likely would scotch any attempts at a new trial, Nichols has always claimed innocence and his jury was unable to reach a verdict on sentencing.

FBI and Justice officials have insisted that the documents, which came to light during a months-long project to archive all materials related to the case, were withheld by mistake and that they would not have altered the result of McVeigh's trial or sentencing.

Ashcroft, who ordered the Justice Department's office of inspector general to investigate the FBI's failure to release all documents, has put a high priority on that review, a Justice Department official said Monday. That review has already begun, the official said.

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