Bomb Verdict Sparks State-Federal Tussle

OKLAHOMA CITY — Federal officials and Oklahoma state authorities are girding for a potential battle over the right to execute Oklahoma City bomber Timothy J. McVeigh, with sources inside the federal prosecution saying Tuesday that they have no intention of turning him over to the state legal system if he is sentenced to death in federal court.

State prosecutors were stunned by the sources’ comments, saying that they contradict assurances made by top federal officials that, regardless of the outcome of the federal case, Oklahoma would get its chance to prosecute McVeigh for planning and carrying out the explosion that destroyed the Alfred P. Murrah Federal Building and killed 168 people on April 19, 1995.

Oklahoma County Dist. Atty. Bob Macy said: “The agreement with reference to the prosecution of McVeigh . . . in state court was made in meetings between me and the attorney general of the United States [Janet Reno]. I view her as being a person of great integrity and feel she will honor the commitments that were made.”

Reno has declined comment on the brewing dispute, citing a gag order imposed by U.S. District Judge Richard P. Matsch, who is presiding over the federal trial of McVeigh in Denver.

The federal government almost certainly would allow Oklahoma authorities to proceed if the federal trial does not end with a death sentence.

McVeigh, 29, was found guilty Monday on all 11 counts in a federal indictment in the bombing case. Eight of the counts dealt with the deaths of federal law enforcement officers in the Murrah building, and it is those charges that carry possible death sentences under federal law.

As the penalty phase in the federal trial gets underway today, the prosecution sources said that they would oppose giving up federal custody of McVeigh for a state trial if they win the death penalty.

They argued that doing so could jeopardize the federal case during an expected appeal of Monday’s verdict if witnesses change their story on the stand in a state trial. They also noted that federal law does not require them to turn over custody of McVeigh or the case file, which includes hundreds of thousands of interview statements, photographs, records and other documents.

Said a source on the federal prosecution team: “If we do not get the death penalty, McVeigh will probably go back to Oklahoma City. If we do, there is really not a need to try him again.”

Responding to concerns raised about a state trial, Macy said: “They sure waited a long time to come up with an excuse like that. But it doesn’t change a thing. I intend to continue just as we planned.”

The dispute may end up before Matsch.

Leesa Brown, a spokesperson for government prosecutors, said state authorities may have to petition the federal court in Denver for custody of McVeigh and the evidence. Federal prosecutors would then have a chance to offer their arguments for not doing so.

Macy said that he will proceed with plans to file murder charges against McVeigh in state court and seek the death penalty.

“Then we’ll all sit back and hope the federal case is held up on appeal and the maximum sentence is carried out,” he said. “But in case it isn’t, we’ll be sitting here with a state court conviction under a [death penalty] statute we know is constitutional.”

He added: “Whichever judicial system, state or federal, affirms the death penalty first is the one that carries it out.”

Backing Macy’s position is Oklahoma Gov. Frank Keating.

“McVeigh can’t suffer enough--he killed 168 of our friends and neighbors, injured [more than 500] people, damaged or destroyed 320 buildings and smashed 2,000 cars,” Keating said. “If Bob Macy feels a prosecution is warranted to protect the interests of this state, I fully support it.”

Until Tuesday, Macy said, it was his understanding that federal officials had been supportive of his plans and promised to make their evidence and witnesses available to him. The FBI, he added, has already briefed his office on the case.

“Talk about a constitutional crisis,” he said. “You’d have two sovereignties engaged in a conflict over a prisoner.”

Macy, who proclaims himself the nation’s leading death penalty prosecutor, has personally headed prosecutions that sent more than 50 convicted murderers to Oklahoma’s death row in his 17 years as district attorney.

Nine people have been put to death in Oklahoma over the last two decades.

“I’ll use the most experienced prosecutors I’ve got to make sure there are no reversible errors, and we will get the death penalty,” Macy said. “I will be the lead attorney.”

“For right now, the most important thing is for the federal trial to continue and for them to get a death penalty,” he added. “I’m not going to say or do anything that would jeopardize that in any way.”

Serrano reported from Denver and Sahagun from Oklahoma City.