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CNN BURDEN OF PROOF

Debating the Timothy McVeigh Execution

Aired June 1, 2001 - 12:30   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.
(BEGIN VIDEO CLIP)

ROBERT NIGH, MCVEIGH ATTORNEY: Mr. McVeigh has given us permission to seek a stay of execution on his behalf.

UNIDENTIFIED FEMALE: It was just horrible noise, the roar of the whole building crumbling.

UNIDENTIFIED MALE: About a third of the building has been blown away, and you can see...

JOHN ASHCROFT, ATTORNEY GENERAL: On June the 2nd, 1997, a jury convicted Mr. Timothy McVeigh of the April 19, 1995 bombing.

WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES: It was an act of cowardice.

UNIDENTIFIED FEMALE: We are seeing injured people everywhere!

CLINTON: And it was evil.

UNIDENTIFIED MALE: They are on what they call a "code black" right now, a disaster mode.

ASHCROFT: This brutal act of terrorism killed 168 innocent people...

JANET RENO, ATTORNEY GENERAL: The death penalty is available, and we will seek it.

UNIDENTIFIED MALE: Bomb experts say the destruction appears to indicate a car bomb loaded with more than a thousand pounds of explosives.

UNIDENTIFIED FEMALE: Unfortunately, there are still people trapped.

UNIDENTIFIED MALE: We are getting reports of -- of numerous fatalities.

ASHCROFT: This cowardly crime against our nation was the largest terrorist attack ever within the United States of America.

(END VIDEO CLIP) ROGER COSSACK, CO-HOST: Hello, and welcome to BURDEN OF PROOF.

First he wanted to die, and now he wants to live. Timothy McVeigh's fate now lies in the hands of U.S. district court judge Richard Matsch. Thursday attorneys for McVeigh filed a petition for a stay of execution. They claim the United States government withheld exculpatory evidence at his trial and still may have more evidence which has not been turned over. The FBI and the Justice Department say they have handed over all evidence to McVeigh's attorneys. McVeigh is currently scheduled to die 10 days from now.

Joining us today from Chicago, former McVeigh prosecutor Scott Mendeloff. And also in Chicago, former federal judge Abner Mikva. Here in Washington, Eric Corovo (ph), former chief of FBI counterterrorism Steve Pomerantz and criminal defense attorney Ronald Sullivan. In the back row, Annamarie Bacca (ph), Derek Garcia (ph) and Devina Chavez (ph).

Judge Mikva, I want to turn to you for your wisdom as a former judge on this matter -- not on this matter, but in matters like this. If the court was -- if you, as the court, were presented with these kinds of petitions that McVeigh has presented, what would you be looking for?

ABNER MIKVA, FORMER FEDERAL JUDGE: Well, first of all, I would have to fight down my prejudice that the death penalty just messes up the criminal justice system. It has nothing to do with sympathy for McVeigh or even any emotional feelings about the death penalty, but it always comes up in cases like this, that make the cause very, very traumatic.

Here's a case where the judge is being asked initially for a stay of execution, not anything relating to McVeigh's ability to go free, but that he shouldn't be killed until the -- everybody's satisfied that he indeed has gotten a fair trial and that all of the documents that might have been exculpatory were either presented or could have been presented to a jury.

And so if I were the judge, I would be -- have a great deal of angst, and there'd be a great deal of anguish, and I would listen to what the lawyers for McVeigh had to say because the fact of the matter is, when you're talking about a death sentence, you want to make absolutely certain that you have done everything that the law and the Constitution require.

COSSACK: Judge Mikva, I know you would put your personal feelings aside, as difficult as it may be in this case, and would look only at the papers. And in the papers that McVeigh has filed, what his lawyers are claiming is that there has been a fraud on the court. Now, that is a tough thing to prove. It's not just that evidence was withheld, there has to be actual prejudice that came from the withholding of evidence. Isn't that true?

MIKVA: That's right. And I'm not sure that they -- that they had to take on this additional burden or that they're able to carry the additional burden of proving that it was a fraud on the court. I think the way I would analyze the legal situation is that they have to show that there was evidence that was withheld from the defense and that this evidence could have been exculpatory, that a jury or judge might have come out differently if this evidence had been presented.

I think that is a standard that -- that is a little easier to prove than one that's saying that there was -- that the FBI deliberately negotiated a fraud on the court. I don't think that's going to be likely, and I don't think it's going to be easy to prove.

COSSACK: All right, Scott, you're on the other side now. You're with the prosecution of this case. You now realize that the FBI, for whatever reason, failed to turn over all the evidence. Into court comes Timothy McVeigh's lawyers and asks for two thing. One, they want a delay or a stay of the execution. And two, they are claiming to the court that there has been a fraud upon the court. How do you respond?

SCOTT MENDELOFF, FORMER FEDERAL PROSECUTOR: Well, I would respond differently than the attorney general has suggested with respect to the stay. I would negotiate with the defense to give them a reasonable amount of time. The last thing I would want to do is allow the public to believe that we were rushing to judgment on an execution. I think that doesn't help anyone. It doesn't help the image of Mr. Ashcroft. It doesn't help our system.

In terms of responding to the -- to the defense, I think that the government -- that I would first say, "Judge, there is absolutely no evidence that they have or can point to that there has been any deliberate withholding of evidence. And so we miss the first prong of -- of fraud on the court. And secondly, Judge," I would say...

COSSACK: I think we may have lost Scott.

Let me go over to you, Ron, as a -- let me have you pick up where Scott was. Now, Scott was talking on behalf of the prosecution. Let's talk a little bit on behalf of the defense. Defense comes in and says two things. One, "We wish to have the delay," and I think most parties agree that the delay is probably going to happen. "But two, Judge, along with that delay, we're telling you there's a fraud on the court." Tactically, is that a good idea?

RONALD SULLIVAN, CRIMINAL DEFENSE ATTORNEY: I don't think so. I agree with Judge Mikva that that's an extremely high standard. And why burden yourself with that standard if it's not absolutely necessary for you to stay the execution?

I would take on the much lower standard and say, "It is undisputed, Judge, that documents were missing. We need time to sort through these documents and to determine whether or not these documents could have made a difference." That's the lowest standard. I would say "We just need time to look through these."

Then, if there was something in the documents that pointed to additional evidence, additional witness, then I might go on to say, "Indeed, if we were allowed to pursue this, then there may have been a different outcome at trial because we have these new avenues." And as defense counsel, I would appeal to what courts call the "prudential concerns" of the courts. This is an execution. It is the most final sentence in our criminal justice system. You cannot undo it. So the prudential concerns of a court would be that we should stay this, take our time, move slowly and make sure that the defense has had every opportunity they can to determine whether or not this was an accurate and just verdict.

COSSACK: Ron, by putting this in the documents, as they have now -- that is, saying "We want two things, the delay, as well as we are alleging a fraud on the court" -- what's going to happen is that they're going to get their hearing, and most likely get their delay. But isn't the judge going to start asking them some questions right away?

SULLIVAN: That's right. And that's the problem with setting yourself up with too high of a standard because if you fall, you might lose the -- the entire matter, sort of like going into an argument and making an opening statement where you can prove it up later. You've set yourself up for failure, potentially.

I -- nevertheless, I think that the defense will prevail, if not at the district court, at an appellate court, for these prudential reasons that I articulated earlier.

COSSACK: Judge Mikva, I understand that we've regained our connection with you. Judge Mikva, what standard must the defense be able to show to convince the court that they would be -- that a fraud has actually existed upon the court?

MIKVA: Well, to show that a fraud existed on the court, they would have to show that there was an intent on the part of the prosecution to withhold exculpatory evidence from the defendant. And as everyone's agreed so far, I think that's a standard that's almost impossible to establish.

But I agree with whoever was speaking on behalf of the defense before, and that is that -- that they don't have to meet that standard, in my opinion. I think that if they can show the possibility that this evidence was exculpatory, that entitles them to go ahead to the next step, and that is to -- to argue that a jury or the judge might have come out differently if they had seen this evidence, and therefore McVeigh is entitled to a new trial. That's the -- seems to me a much more possible burden for the defense to carry.

I think the reason they're trying to carry the heavier burden is not because they're bad lawyers but because they're worried about a provision in the '96 law which suggests that a defendant in a habeas corpus case has to be able to show that the evidence would establish his innocence. I have doubts about the constitutionality of that standard as applied in this case.

COSSACK: All right, let's take a break. McVeigh's lawyers accuse the government of fraud upon the court. So how did thousands of pages of documents fall through the cracks of the house that Hoover built? We'll find out when we come back.

Don't go away.

(BEGIN LEGAL BRIEF)

John Danforth, former Missouri senator and special counsel in the Waco investigation, said that he cannot be sure that he received all records from the FBI. Danforth said that any additional records would not change his conclusion that shots were not fired at the Branch Davidians by federal agents.

Source: "Washington Post"

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

CHRIS TRITICO, MCVEIGH ATTORNEY: I think it's important for everybody to understand that the Constitution works for everybody, and the government has a responsibility and an obligation to ensure that every citizen get a fair trial. That's what this process is all about.

SEAN CONNELLY, U.S. ATTORNEY: The "fraud on the court" theory, we submit, is an attempt to circumvent the legal requirements of the 1996 law that limit petitioners in the position of Timothy McVeigh to a showing of actual innocence if they wish to avoid a death sentence. There is no basis for fraud on the court, and we will respond that way on Monday, when we're ordered to do so by the court.

(END VIDEO CLIP)

COSSACK: Just days before he was scheduled to die, the FBI turned over 4,000 pages of new documents from their investigation into Timothy McVeigh's -- to Timothy McVeigh's defense team. Now McVeigh's attorneys are worried that there may be even more documents out there.

Steve, let's talk a little bit about the FBI. You're retired, high-ranking with the counterterrorism. How did this happen? I mean, how did thousands of pages of material fall through the cracks in probably the highest-publicity case that we have seen in this country in years?

STEVE POMERANTZ, FORMER FBI COUNTERTERRORISM CHIEF: Well, again, just based on the facts as we know them -- I am no longer with the agency, but it seems to be just a colossal record-keeping error, just a failure on -- a systemic failure to be able to identify and produce what they should have been able to identify and produce.

I certainly don't believe there was anything deliberate about -- about what happened. I served 27 years in the FBI. I retired as an assistant director. I think I know the organization as well as anybody, and I absolutely reject the notion that they would have done this deliberately. But it is a very substantial failure, nevertheless.

COSSACK: Let's agree that it wasn't intentional, and let's agree all here today that it wasn't deliberate. But we cannot agree with what I think both -- or disagree with what I think both of you and I agree on, the word "negligence." And what I suppose is the -- I'm asking because I know a question most Americans are asking -- in a professional organization like the FBI, how does this kind of negligence occur in something that's so inherently important? In documents that were filed time and time again by the United States attorney's office, they -- under oath, they said, "We have turned over every single page of information that we have." They must have believed that they did. How does something like this occur? And again, we all agree that it wasn't intentional.

POMERANTZ: You know, I have to think that the magnitude, just the volume of the investigation and the product that the investigation produced must have had an impact on what happened. As you just characterized the case, it was -- it was a huge investigation, producing, I'm sure, tens of thousands of pages of investigative product. And I have to believe that just the sheer volume must have impacted on their -- on the result.

I also -- again, from what I've heard, there may have been reliance on a computer system instead of the old days, as I remember, when you were told to produce documents, you hand-searched the file to ensure that you'd found it all. I suspect that that may not have happened in this instance.

COSSACK: Let me ask you a little bit about FBI procedure. The report of an FBI agent, of an interview, is called a 302.

POMERANTZ: Correct.

COSSACK: All right. And isn't it my -- isn't it true that whenever an FBI agent has any contact with a witness or anyone else, a 302 should be generated?

POMERANTZ: Not 100 percent. Not necessarily. It's a judgment that the information you've gotten might someday be of testimonial value. So that's the threshold you -- your decision as to whether you put it on a 302 or just what was referred to as an "investigative insert." You have to have some basis to think this could be testimony some day. But if it reaches that -- that level, then yes, you commit it to a 302.

COSSACK: Isn't it true, though, with the FBI that most -- I mean, most contacts, particularly in a case like this, it -- a 302 should be generated, just off the fact that you never know what's going to be needed in court.

POMERANTZ: I would -- in a broad sense, I would agree with that characterize.

COSSACK: And the reason I'm bringing this up is one of the allegations that the defense is making is that there were FBI contacts with witnesses in which these contacts were made and that 302s were not generated. Wouldn't that be, if that's true -- and we don't know if it's true. I want to be right there and tell you that no -- no one yet has proven to me that it's true. But if that's true, wouldn't that be counter to the policy of the FBI?

POMERANTZ: If -- again, I have to repeat myself to say that if the belief at the time that interview was conducted that it could ever have any possible testimony -- testimonial value, then yes, it should have been recorded on a 302. There may be -- there are times in any investigation when information that an agent obtains is of such marginal significance that a decision is made that this is not 302 material. And there are -- I'm sure that as well as the thousands of 302s that exist in that file, there are probably thousands of pages of information that were not put on 302.

COSSACK: All right.

POMERANTZ: And that's not improper. There's nothing improper about that.

COSSACK: All right, let's take another break.

What does the delay in McVeigh's execution mean for others facing the federal death penalty? We'll talk about that when we come back. Stay with us.

(COMMERCIAL BREAK)

(BEGIN Q&A)

Q: Why are two Miami music companies suing the producer of CBS's "The Late Late Show With Craig Kilborn"?

A: They own the rights to the 2 Live Crew song "Me So Horny," allegedly played on the show without permission more than 50 times.

(END Q&A)

COSSACK: Yesterday Timothy McVeigh's lawyers filed for a stay of his execution on the grounds that the FBI had withheld important information about the investigation into the bombing of the Alfred P. Murrah building in Oklahoma City. Timothy McVeigh is scheduled to be the first person executed under federal death penalty laws in 38 years.

Judge Mikva, I want to ask you this question regarding the -- the turning over of the information by the FBI and by Attorney General Ashcroft. It came with just days before Timothy McVeigh was scheduled to die, May 16. What part would that play in your decision-making process, the notion that this information was apparently held to the very last minute?

MIKVA: Well, it would trouble me a great deal. I think the FBI would have been well served had it been much more forthcoming, that as soon as the information came to their attention, if they had immediately turned it all over to the defense, there might not have been the need for the delay, in the first place, and this could have all been sorted out by now, in the second place.

It's what gives the FBI an additional black eye. I still don't think it amounts to fraud, but it suggests that in addition to their carelessness, which they -- they almost acknowledge was pretty gross, that they -- they were trying to figure out what to do about it and waited, I think, an unreasonably long time before they finally did disclose that they had this evidence and turned it over. It makes their case equitably harder. It's -- again, it's hard to -- to really look at the McVeigh case, in light of his confessions and everything else, in terms of is he really innocent of the crime. But since this whole matter is all about process, it makes the burden of the FBI of showing that this was all done according to the due process of law a lot harder to do.

COSSACK: Scott, in light of -- of the fact that this is a death penalty case and in light of the fact that we see that perhaps even well-meaning people made a mistake in this situation, how does this affect, if at all, the federal death penalty? I mean, if there can be a mistake made in this situation, of not turning material over, what about cases that are less publicized?

MENDELOFF: Well, that's a good point. We have to remember, though, that the evidence involved here is -- from every -- from every account, largely cumulative. And it isn't evidence that shows that this man is innocent. That said, it redoubles the call to make sure that the system is operating very, very carefully and very smoothly.

One thing that I personally advocate is the far less frequent use of the death penalty. If it's only used in very, very limited circumstances, the chances of these kinds of errors, I think, are reduced.

COSSACK: And Steve, in terms of modernizing the FBI, has there been any -- to your knowledge, any changes?

POMERANTZ: Oh, there've been tremendous changes in terms of bringing technology to bear at the FBI. Clearly, there are still problems and -- but there has been a herculean effort and multiple millions of dollars spent on modernizing the FBI in the last decade.

COSSACK: All right, I'm afraid -- let me just jump in here because I'm afraid that we're out of time.

But before we go, I would like to say a few things. As a man who has spent his life as a lawyer, I believe that fairness in the administration of justice is a hallmark of America. It is easy to get caught up with such anger and such rage against Timothy McVeigh that it would be comfortable to forget this important principle. However, if America is to be what we always want her to be, we can never allow anything to interfere with the guarantees of our Constitution. But it's also important that we never forget the innocent victims of this horrible massacre, the loneliness and the pain that their families suffer on a daily basis.

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