Judge refuses stay of McVeigh execution

11.45 am

DENVER - A United States federal judge has refused to grant a stay of execution for Oklahoma City bomber Timothy McVeigh, saying no amount of withheld information could change the fact that the once model soldier was "the instrument of death and destruction."

McVeigh's lawyers, who had sought a second delay in his execution after FBI officials admitted they failed to hand over 4000 pages of documents at his 1997 trial, said immediately they would appeal to a higher court.

A spokesman for the 10th District Court of Appeals said the court would act quickly and a review panel had already been selected.

McVeigh, 33, is due to die by lethal injection on Tuesday (NZ time) for planting the bomb that killed 168 people at the Alfred P Murrah Federal Building in 1995 -- the worst act of terrorism on American soil. His execution date has already been rescheduled once by the US government after the documents were disclosed last month.

"I find there is no good cause to delay the execution," said US District Judge Richard Matsch, who presided over the 1997 trial which ended with a jury finding McVeigh guilty and ruling that he be put to death.

"Whatever in time may be disclosed about the possible (actions) of others, it will not change the fact that Timothy McVeigh was the instrument of death and destruction.

"Timothy McVeigh was retaliating and was at war with the US government," Matsch said.

Attorney General John Ashcroft hailed the decision, calling it a "ruling for justice" and saying there never was any doubt about McVeigh's guilt.

"Today I believe the ruling of the court in Denver makes unmistakably clear that we not only have a guilty defendant but that the fairness and innocence of the system is sufficient and is complete and that it merits the trust and confidence of the American people," he told reporters before testifying at a House Judiciary Committee hearing.

McVeigh had abandoned all appeals last December and said he preferred to be executed, rather than spending the rest of his life in prison without hope of release.

But he changed stance last week, telling his lawyers to seek a stay and arguing that the failure to disclose the FBI documents constituted a "fraud on the court."

Lawyers for McVeigh told Matsch today they were not seeking a new trial for McVeigh, who has admitted his guilt in a book, but wanted to overturn the death sentence.

They said a stay should be granted in order to present evidence of what they said was information that other people were involved in the bombing conspiracy and that federal officials knew about the plot beforehand.

McVeigh's lead attorney, Rob Nigh, told the court that if McVeigh was put to death next week, "the most awful failure of the criminal justice system will have occurred."

Nigh told reporters after Matsch's ruling: "Of course we are extremely disappointed in the court's ruling; today we will file (an appeal) on Mr McVeigh's behalf."

Prosecutors argued that most of the 4000 pages of documents were immaterial to McVeigh's conviction and death sentence and he deserved to die for his crimes, regardless of the FBI's mistakes.

Commenting on Matsch's ruling, prosecutor Sean Connelly said; "Judge Matsch found that for anybody who sat through the evidence heard at trial, there could be no doubt Timothy McVeigh exploded a truck bomb outside the Murrah federal building, killing 168 men women and children."

The prosecutors, along with survivors and victims' relatives, have been particularly incensed at the notion of McVeigh as a self-appointed government watchdog.

The question of whether McVeigh had help has long dogged the case. McVeigh has said he acted alone except for forced help given to him by army buddy Terry Nichols, who, in turn, has claimed innocence and is seeking a new trial.

Nichols was convicted of conspiracy and involuntary manslaughter in a federal trial and sentenced to life without possibility of parole.

- REUTERS