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Lawyers Consider Course of Action After Twist in McVeigh Case

Aired May 11, 2001 - 11:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
LEON HARRIS, CNN ANCHOR: Let's go now to Denver where Timothy McVeigh was tried and convicted. His lawyers are considering what to do next now. We're hearing word about the delay in this execution date. CNN's Gina London is following this story for us in Denver -- Gina.

GINA LONDON, CNN CORRESPONDENT: Well, good morning to you, Leon. You know, I have just spoken to the spokesperson for the court here in Denver, that man's name is Jim Manspeaker and he told me that now, with this Department of Justice going on where it's asking for the stay of execution, it's his understanding, Jim Manspeaker's understanding, that that would trump anything going on in here possibly in Denver.

So, what that could mean then is that Judge Richard Matsch, the judge who was the presiding judge over this McVeigh trial some time ago, he may not be involved in this at all.

Now, there's still on notice that there might be a motion to stay the execution brought forth by McVeigh's attorneys, but Manspeaker tells us that it's his understanding that the federal bureau of prisons, who is the one that sets the date for the execution, and that falls under the jurisdiction of the Department of Justice, and so if it determines that it wants to put the McVeigh on reprieve, then it can do so.

HARRIS: All right. Thanks, Gina. We appreciate that. Gina London reporting live for us from Denver -- Daryn.

DARYN KAGAN, CNN ANCHOR: Of course, not completely clear exactly what the government will choose to do in this case, ask for the delay, ask for a stay and the amount of time. Let's go to Kelli Arena at the Justice Department for more -- Kelli.

KELLI ARENA, CNN CORRESPONDENT: Daryn, there are meetings going on as we speak at the Justice Department just behind me. As you have heard, yes, here is the very latest: the attorney general, there is a very strong possibility, according to the Justice Department spokesperson, that he will issue a delay. The thinking is 30 days, which would be enough time for all the concerned parties to go through the relevant documents. As we know, there were 3,000 documents that have recently been uncovered.

Although, you should also know that the spokesperson for the bureau of prisons says that it's going on business as usual. It is planning for a Wednesday execution of Timothy McVeigh, the date that has been set for some time. As you did hear from Gina, the Justice Department oversees the bureau of prisons and does have unilateral jurisdiction to set date. It does not need to go through the courts for that. It can set the date for the execution, the date that it said originally was this coming Wednesday.

It can delay that without any court action. We have been hearing some response throughout the day from Congress on the goings-on here. We did talk to Senator Bill Frist, the Republican from Tennessee earlier today. Here is what he had to say.

(BEGIN VIDEO CLIP)

SEN. BILL FRIST (R), TENNESSEE: The delay, or the potential delay, of execution I obviously have concern about. Again, I think we have to look long and hard to see why that delay occurred, what is behind it, why these papers were not made available.

(END VIDEO CLIP)

ARENA: Should also note that there is an investigation, an internal investigation and review going on at the Federal Bureau of Investigation, they are trying to figure out exactly why those papers were not uncovered sooner. This is six years after the event happened, and these were interviews that were done very early on in the investigation.

So, that review does continue, and that will be reported to Justice as well -- Daryn.

KAGAN: Kelli Arena at the Justice Department, thank you -- Leon.

HARRIS: All right. Well, this is going to change plans for many people, and one of those people whose plans are going to change dramatically is Peggy Broxterman. Peggy Broxterman was going to be one of the 10 people who would be going to Terra Haute to witness this execution. As I understand it, Mrs. Broxterman, you are on the phone with us, correct? Are you there?

PEGGY BROXTERMAN, MOTHER OF BOMBING VICTIM: Correct.

HARRIS: As I understand it, you were going to be going to witness this execution. Can you tell us what your thoughts are now?

BROXTERMAN: Well, I'm a little bit confused, just like everyone. I don't really care what papers they've come up with. He admitted his guilt. That's it. Get it over with. His lawyers, I think are just trying to make it -- prolong it. I don't know if McVeigh would want to or not.

Of course, he'd controlling this situation again, like he has all along, he thinks. So, like I said, I really don't care what they do. He is going to die. So why prolong it?

HARRIS: What does that make you feel like, when you consider the fact that Timothy McVeigh may still be at the driver's seat in this whole issue?

BROXTERMAN: Well, it's -- it's -- it's too bad. Our justice seems to let the criminals do this to them every once in a while. So, I really don't really have any thoughts on that at all.

HARRIS: But no matter what happens, you will be going to Terra Haute to witness this execution when it does happen?

BROXTERMAN: That may be questionable now.

HARRIS: Really? Why? Why now?

BROXTERMAN: Because my husband and I are going on a cruise at that time.

HARRIS: Well, that would be a much more pleasant undertaking.

BROXTERMAN: I think so. McVeigh can run the Justice Department, but unfortunately he is not going to run mine.

HARRIS: OK. Well, let me ask you what have been doing to prepare yourself for the prospect of going to witness this execution? You have had a lot of time to think about this.

BROXTERMAN: I have had a lot of time to think about it. And like I said, I really was pretty psyched up for it, and you have to psych yourself up for something like this. And I was doing it for my son and for the other people who were killed in this bombing, and I just -- that's just what I have been thinking. I am doing it for them, so now I don't know. It's just too bad.

HARRIS: When you say "psych yourself up," what have been doing in that regard? If you can share it with us.

BROXTERMAN: Well, just thinking, you know, that I can do this, and I will do this for my son and, you know, you have to kind of talk to yourself a little bit about it.

HARRIS: Well, I take it you definitely are a proponent of the death date. You do believe in it, and...

BROXTERMAN: Absolutely.

HARRIS: ... in this case?

BROXTERMAN: And like I said, he has lived six years too long, as far as I am concerned, and this jerking around like this is just ridiculous. It's just ridiculous.

It would be different if he hadn't confessed and, you know, but he has, so no matter what documents they come up with, I am sure they are not that important.

HARRIS: Peggy Broxterman, we thank you very much for your time this morning and your thoughts, and we certainly hope you do get a chance to take that vacation and enjoy yourself. Take care -- Daryn. KAGAN: Once again, we continue to follow this breaking news concerning Timothy McVeigh. His execution has been set for some time for May 16, Wednesday in Terra Haute, Indiana. Today getting news that the Justice Department might be asking for a delay in that, in light of the news that has broken over the last day or so, and that is that there are about 3,000 pages of documents that were not turned over by the FBI to the defense during the trial of Timothy McVeigh for the Oklahoma City bombing.

No one has covered this story more closely than our own Susan Candiotti who today finds herself in Denver, where many of Timothy McVeigh's lawyers are as well -- Susan.

SUSAN CANDIOTTI, CNN CORRESPONDENT: Good morning, Daryn. What we are waiting to hear, as you indicated, is some word, one way or the other from one of two camps.

No. 1, the Justice Department, we are told, is currently deciding whether it will push back the execution date of Timothy McVeigh, now set for next Wednesday, in order to allow the defense attorneys for McVeigh time to review these new documents, an estimated 3,000 pages of material for them to look over, material that the Justice Department insists is redundant and that the Justice Department claims would not exculpate -- exculpate Mr. McVeigh in any way, exclude him from any guilt whatever.

Now, on the other hand, you have another option at hand here. There is also a possibility that defense attorneys for McVeigh, if they so chose, could ask the circuit court of appeal, the 10th Circuit Court of Appeals here in Denver to request a stay of execution.

We won't know whether any of those scenarios will take place until one side or the other makes a decision. McVeigh's -- one of Mr. McVeigh's attorneys is trying to meet with him this day in Terra Haute at the U.S. penitentiary there to see what Mr. McVeigh wants to do.

Now, earlier this morning, I talked to Timothy McVeigh's father, Bill, who lives in western New York, and Mr. McVeigh said that he has not talked to his son about this situation, nor has he spoken with any of his son's attorneys at this time. McVeigh said he doesn't know what to think about this latest development, and he said it's up to his son, as far as what he wants to do -- Daryn.

KAGAN: Susan, have you had a chance to talk with any of Timothy McVeigh's lawyers today in light of this new news?

CANDIOTTI: Not as a of yet. We do know the last word that Mr. McVeigh has been informed of the situation by a telephone, and that he is said to be considering his options, according to one of one of Mr. McVeigh's attorney Nathan Chambers who is based here in Denver. One of the other lawyers who is the one who is currently in Indiana, who will be the one consulting in person with Mr. McVeigh.

KAGAN: Just to be clear, since there are so many different cities involved here and different sides, the Justice Department can make their move and asking for the delay of the execution. If Timothy McVeigh and his lawyers decide to ask for a stay, that request would happen in Denver, where you are, Susan?

CANDIOTTI: That is according to a Justice Department attorney, yes. That there -- they would be seeking a stay at the circuit court of appeals in Denver.

KAGAN: All right. Susan Candiotti in Denver, thank you. Our coverage of the story will continue. Right now are going to get a quick break in, and we'll be back after this.

(COMMERCIAL BREAK)

HARRIS: Forty-three minutes after the hour now. And if you are just joining us, the story we're following this morning that is developing is the word from CNN has confirmed from the Justice Department that secretary -- that attorney general, rather, John Ashcroft, will be making an announcement this afternoon, and the announcement we expect to hear is that he is strongly considering a delay in the execution of Timothy McVeigh, which is supposed to be happening next Wednesday.

Let's check in now with our Ed Lavandera who is in Dallas. We understand, Ed, that you got some word there from the FBI office?

ED LAVANDERA, CNN CORRESPONDENT: Yes, Leon. Danny Defenbaugh, who was the lead investor for the FBI working in Oklahoma City at the time is now the lead -- in charge of the FBI office here in Dallas, Texas, and we are awaiting word from him, a statement from him at some point today on his reaction to all the news that we have been reporting so far this morning.

So, that's the statement we are waiting on from here, not exactly what he will be able to tell us, especially in light of that John Ashcroft is already scheduled to speak, it appears, later on this afternoon in Washington, D.C. So, exactly what kind of information Agent Defenbaugh will be able to tell us we are not exactly sure, but that is what we are waiting for here -- Leon.

HARRIS: OK, good deal, thanks, Ed. We'll be talking to you in just a bit, once that gets under way.

KAGAN: So, we are waiting here for a number of people, number one, the Attorney General John Ashcroft, who will do, as you mentioned, hold some kind of news conference later today. The hour has yet to be exactly set, where the government would announce what it plan is in terms of the execution of Timothy McVeigh. Also, at some point, we might hear from Timothy McVeigh's lawyers.

HARRIS: That's right, that's right. And our Charles Bierbauer clarified for us earlier that we are talking about here is a delay and not a stay, and those apparently are -- legally, there are two different issues in play here, and we're talking -- 30 days is the word that we're getting.

(CROSSTALK)

KAGAN: At one point, but some people have backed off of that. HARRIS: They backed off of that?

KAGAN: Of course, it's coming from the Department of Justice, but they're following this all the way up to the White House, and that's where we find out White House correspondent Kelly Wallace -- Kelly.

KELLY WALLACE, CNN WHITE HOUSE CORRESPONDENT: Well, Daryn and Leon, the White House is saying -- Ari Fleischer, the president spokesman, telling reporters that he believed the White House was notified on Wednesday about the discovery of these documents, which were never turned over to Timothy McVeigh's defense team.

But Fleischer refused to say, or could not say, rather, who notified the White House, he also could not say when exactly the president was informed about this. And as you saw on our screens earlier, the president was in the rose garden earlier this morning announcing a U.S. contribution to a new global fund, a reporter asking a question -- happened to be myself -- asking the president about when he was notified, and his reaction to that, he refused answer any questions.

Fleischer, though, did tell reporters that the president's reaction was one of concern. Fleischer saying, concern about the process. But when pressed further was that process related to the documents, related to the case, Ari Fleischer just saying he refused to say anymore, saying that the FBI and the Justice Department are gathering the fact, and the White House, of course, is interested in seeing those facts, is continuing to consult and work with the Justice Department and the FBI as those agencies gather the facts. And until then, the White House would have any further comment.

So, again, not exactly clear when the president himself was notified, Fleischer saying the White House notified on Wednesday. He also would not entertain any questions about whether or not the president would believe it was important for the federal government to come forward and request a delay in the McVeigh execution.

He also would not say what impact this development could have on the president's view on the death penalty. Again, the message here: the White House is withholding comment until it gets more of the facts -- Daryn.

KAGAN: Kelly Wallace, thanks for checking in from the White House. Once again, we're waiting for the announcement from the Justice Department in terms of what they plan to do with the execution of Timothy McVeigh, currently scheduled for Wednesday, yet that date, I think that it's safe to say, very much up in the air at this point.

HARRIS: Well, that's what we are getting: a strong inclination at this point that it's going to change, that's the word coming from the Justice Department.

We'll have more on this in just a moment, don't go away.

(COMMERCIAL BREAK) KAGAN: We are looking at live picture of the Justice Department in Washington, D.C., where we expect later today to hear from Attorney General John Ashcroft. We are hearing that the Justice Department will recommend a delay in the execution of Timothy McVeigh, originally scheduled for Wednesday in Terra Haute, Indiana, but in light of the news that the FBI failed to turn over 3,000 documents -- 3,000 pages of documents to defense attorneys.

There now is a request that the defense might need some time to look over those documents, and the government as well. We have yet to hear from Timothy McVeigh, what he would like to do in terms of putting off the execution, and we also have yet to determine who would have the say here, whether it will be Timothy McVeigh or the Justice Department.

A lot of questions yet to be answered. This is developing story as it goes, and once again, we expect to hear from the attorney general some time -- we expect within the next couple of hours. You will see that live here on CNN -- Leon.

HARRIS: Well, maybe, let's get some answers now from -- first, he's been a frequent guest here on CNN, we're talking now with Gerry Spence, defense attorney extraordinaire. We've had him on the air plenty of times here. Gerry, good to have you with us. Gerry is on the phone right now from Santa Barbara.

What do you make of what's happening here, and in fact -- let's get, first of all, to Daryn's question just a moment ago. Are you familiar with this process and with whether or not McVeigh can actually just -- I guess circumscribe whatever it is that Attorney General John Ashcroft comes out and says, and demands to go ahead and have the execution. Do you know whether or not that's possible?

GERRY SPENCE, DEFENSE ATTORNEY: I suppose that in the final analysis if McVeigh wanted the execution to go forward, that -- that perhaps that would be -- that would be recommended. But I -- and -- you know, let's not -- let's really not get lost in what's going on here, Leon.

HARRIS: OK.

SPENCE: What really is happening is this: this guy is guilty. We know he's guilty. He says he's guilty. And people are saying, well what difference does it make? Well, let me tell you that it's not the issue with respect to McVeigh, it's the issue with respect to each of us.

Imagine what -- if -- if they can withhold 3,000 documents from 46 stations, FBI stations across this land in the most important case, criminal case in this century, think what they can do to you and me and our children and our citizens and neighbors when we're innocent, and withhold that information as well.

And they did that in the Randy Weaver case, in my case. They withhold information. The court was all over them as a result of that, sanctioned them for it. The FBI does this as a matter of choice, as a matter of procedure, against our constitutional rights. It's a very arrogant, frightening thing that when this organization, which is charged with the responsibility of taking care of our rights, acts so arrogantly, it ought to frighten all of this.

HARRIS: Gerry, are you suggesting then that what we're looking at there is the willful withholding of these documents by the FBI?

SPENCE: You have to come to that conclusion if have you 3,000 documents. If it was one document, maybe. But 3,000 documents across 46 different stations, and somebody wants to tell me that it was innocent?

HARRIS: Well, then, if you were the defense attorney in this case, representing Tim McVeigh, what would you be doing next?

SPENCE: Well, the first thing I would want to do is to read 3,000 documents, so that's why you are going to have a delay, probably. And the second thing, if there was information in those documents that should have been given to the jury, I would ask for a new trial.

Even, you know, even though he says he's guilty and admits his guilt, the fact is that the process is sacred in this country, and a jury ought to see that.

HARRIS: But you don't believe that a confession should basically supersede all of that?

SPENCE: Well, it probably will. And it probably will with McVeigh. But -- but again, you know, I don't hear anybody being -- sitting here frightened. I mean, this is Gestapo stuff! This is the sort of a thing that should never happen in America, and this is the sort of thing that is happening every day.

And so, you know, if it's happening to McVeigh, who is guilty, they can hold 3,000 documents, what can they do to you and to me?

HARRIS: Well, Gerry, it sounds to me as though your view on this would pretty much cotton's to Tim McVeigh's philosophy about the federal government and that perhaps this event proves his point?

SPENCE: Well, I certainly don't have -- I don't cater to any of McVeigh's views. I didn't -- I didn't cater to any of Randy Weaver's views.

The only views that I cater to is the view that we all have to have, a fair and just justice system, or we are all in danger. If we don't have the, we flopped back into the totalitarian state. So, my concern is the protection of American rights.

HARRIS: Well, we sure thank you for voicing your concerns, and we appreciate your time. Gerry Spence joining us on the phone from Santa Barbara -- Daryn.

KAGAN: Let's bring our own Greta Van Susteren back in here. Greta, I understand you had a chance to talk to Timothy McVeigh's father.

GRETA VAN SUSTEREN, CNN CORRESPONDENT: That's right, Daryn. I spoke to Bill McVeigh a few minutes ago. Obviously, it's a very tough time for him. He's been waiting the news that his son would be executed on May 16, but of course he's been following the news.

He did say this: he doesn't know what his son wants to do. He said Timothy had made up his mind to die, but now he, the father, doesn't know what Timothy would do, whether or not he will change his mind.

I also asked him about how it was for him, as the father of Timothy McVeigh, and he said: "I will handle it one day at a time, that's the only way you can."

This is an interesting man who was, by the way, befriended Bud Welch, who lost a daughter in this bombing, and the two of them, Bill McVeigh and Bud Welch have been talking and become good friends, so it's sort of an interesting perspective, the father of the man who was supposed to be executed on Wednesday and the father of a woman who did die in the bombing, but who is opposed to the death penalty -- Daryn.

KAGAN: We were talking with our Susan Candiotti earlier. She had talked to Mr. McVeigh, I think -- well, obviously even before you did, and she said that the last time he saw his son was back in April, and that there wasn't going to be any contact in the last week of his life?

VAN SUSTEREN: That's right. They saw each other in early April and they basically had said their good-byes, as much as it was a good- bye. I understand that it was not a contact visit, which would mean the two people in the same room, but instead there was a glass shield between the two of them.

The relationship, as we understand it, has been one rather of estrangement. You know, Bill McVeigh has certainly struggled with this. You know, this is his son who is scheduled to be executed for a horrible crime, but the relationship has not been a particularly close one since the bombing in 1995.

KAGAN: Greta Van Susteren in Washington, thank you for the latest input. Our coverage continues, we will take a break, and we'll be back after this.

(COMMERCIAL BREAK)

HARRIS: Once again, quickly, our breaking story this hour. CNN has confirmed that the Justice Department is going to be making an announcement this afternoon, and we expect to hear them say that they will be delaying the execution of Timothy McVeigh, now scheduled for Wednesday, May 16. But the indications that we are getting -- strong indications that we are getting from the Justice Department right now is that that date is going to be delayed.

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